439 F2d 796 Baughman v. Freienmuth

439 F.2d 796

Fred BAUGHMAN, as parent and on behalf of Lynne and Beth
Baughman, minors, et al., Appellants,
William FREIENMUTH, President, Montgomery County Board of
Education, et al., Appellees.

No. 15102.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 3, 1971.
Decided March 12, 1971.

Edward L. Genn, Washington, D.C., for appellants.

Robert S. Bourbon, Rockville, Md., for appellees William Freienmuth, Rosemary Hilberg, Marillyne Allen, Thomas Israel, William Colman, Charles B. Saunders, Jr., Lawrence Wyatt, Homer Elseroad and Gertrude Bish.

Francis B. Burch, Atty. Gen. of Maryland, and Malcolm R. Kitt, Special Asst. Atty. Gen. of Maryland, on Brief, for appellee. Jerome Frampton, Jr., President, on behalf of the Maryland State Board of Education.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.


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In a suit challenging the validity of the Montgomery County, Maryland, Board of Education's regulation with regard to student publications applicable only to Montgomery County, the district judge declined to request the convening of a three-judge court. The declination, from which this appeal is taken, occurred after the State Board of Education issued an opinion and decision altering substantially the contested regulation in Montgomery County and elsewhere, but stayed the effect of its decision until the federal litigation was terminated, and after plaintiffs amended their complaint to attack the State Board's order on federal constitutional grounds and requested that the threejudge court be convened. We affirm.


The district judge's opinion sufficiently states the principles which control the decision and the authorities which establish them. Baughman v. Freienmuth, 325 F.Supp. 1120 D.Md. 1970). A three-judge court need not be convened to adjudicate an attack on the validity of the Montgomery County Board of Education's regulation. Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (February 23, 1971) (decided after the decision of the district court in the instant case). The State Board's opinion and decision are not in effect. Indeed, we are advised in oral argument that what the State Board concluded is under attack in the Circuit Court for Montgomery County, Maryland, in a statutory appeal taken by the Montgomery County Board of Education. If the appeal is successful, one of its effects may be to reinstate the Montgomery County Board's regulation challenged initially in the district court. In that event, the litigation should proceed before a single district judge. Perez v. Ledesma, supra. If the appeal is not successful and if the stay is lifted so that the State Board's opinion and decision ultimately become effective, that will be time enough for plaintiffs, by amendment in the present suit or by insituting new litigation, to ask that a three-judge court be convened.


In its opinion the district court concluded that if the State Board's order were presently effective, it would be inapplicable to Baltimore City, and the district court expressed doubt that in that event the order would be sufficiently state-wide to require a three-judge court to be convened. These observations were not necessary to what was decided and were, therefore, dicta. We express no view concerning their correctness.