Goldstein v. Cox (396 U.S. 471)/Dissent Douglas

by William O. Douglas

United States Supreme Court

396 U.S. 471

Goldstein  v.  Cox

 Argued: Nov. 17, 1969. --- Decided: Jan 26, 1970

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

If summary judgment ^[1] had been granted to appellant, there would be no question but that this Court would have jurisdiction under 28 U.S.C. § 1253 over an appeal from that judgment, as it would constitute an 'order granting * * * an interlocutory or permanent injunction.' Similarly, there seems little room for argument that the denial of summary judgment to appellants constitutes an order 'denying * * * an interlocutory or permanent injunction,' since such injunctive relief was requested in appellants' complaint. ^[2] The majority opinion relies on Switzerland Cheese Ass'n v. Horne's Market, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23, as authority for dismissing this appeal for want of jurisdiction under 28 U.S.C. § 1253. In that case, however, the denial of summary judgment was based solely on the existence of a triable issue of fact; ^[3] the summary judgment did not concern in any way the merits of the case. This case involves more. Appellants claimed that § 2218 of the New York Surrogate's Court Procedure Act was unconstitutional on its face. The denial of summary judgment constituted a rejection of this claim on the merits, as well as a denial of injunctive relief based on that claim. On this basis, I would find jurisdiction under 28 U.S.C. § 1253 to decide this appeal on the merits.

Notes

1. The appellants' motion for summary judgment was as follows:
2. The 'relief demanded in the complaint' included:
3. Switzerland Cheese Ass'n. involved an action for unfair competition under the federal trademark laws, 60 Stat. 427, 15 U.S.C. § 1051 et seq. The sole claim was that defendant's actions in selling cheese labeled as 'imported Swiss cheese' which had been imported into the United States from a country other than Switzerland were illegal under the trademark laws. The defense was that 'imported Swiss cheese' had come to have an accepted meaning in the trade of Swiss cheese that had been imported from any country. The District Court found that the meaning in the trade of 'imported Swiss cheese' was an issue of fact as to which there was a genuine dispute, and therefore denied the plaintiffs' motion for summary judgment.

The request for injunctive relief therefore had to await a jury trial on the facts.