282 F.Supp. 848 (E.D.Ky. 1967), Civ. A. 1146, McSurely v. Ratliff

Docket Nº:Civ. A. 1146
Citation:282 F.Supp. 848
Party Name:McSurely v. Ratliff
Case Date:October 18, 1967
Court:United States District Courts, 6th Circuit, Eastern District of Kentucky

Page 848

282 F.Supp. 848 (E.D.Ky. 1967)

Alan McSURELY et al., Plaintiffs,


Thomas B. RATLIFF et al., Defendants.

Civ. A. No. 1146.

United States District Court, E.D. Kentucky

Oct. 18, 1967

Dissenting Opinion Oct. 20, 1967

Page 849

William M. Kunstler, New York City, Morton Stavis, Newark, N.J., Dan Jack Combs, Combs & Anderson, Pikeville, Ky., for plaintiffs.

Thomas B. Ratliff, Herman Dotson, Marrs Allen May, Pikeville, Ky., Robert L. Matthews, Atty. Gen. of Kentucky, Frankfort, Ky., Edwin L. Weisl, Jr., Asst. Atty. Gen., Leslie A. Nicholson, Department of Justice, Washington, D.C., George I. Cline, U.S. Atty., Lexington, Ky., for defendants.

Robert A. Sedler, Lexington, Ky., amicus curiae.

Before COMBS, Circuit Judge, and MOYNAHAN, and GORDON, District judges.


COMBS, Circuit Judge.

Kentucky's sedition law was passed in 1920 in the aftermath of World War I and the Bolshevik Revolution in Russia. The law was amended slightly in 1922, otherwise it has remained unchanged through the years. As would be expected, the statute is broad and comprehensive. It was good politics to be against Communism. The Governor signed the bill but was fearful that it drew too much water. He publicly stated that it 'goes far afield and far beyond syndicalism and sedition.' He thought the courts would 'take out of this law the sections which make it dangerous', and concluded with this statement: 'Those who seek its (government) overthrow by force or violence, or those who counsel resistance to its laws by unlawful means must be destroyed, but the right of free speech is the blood-bought heritage of every citizen: it is the palladium of our liberties, and it must and shall be preserved.'

Now, for the first time a section of the law is squarely presented for judicial determination. KRS 432.040. 1 Also presented for determination is whether Congress by legislation has preempted this field so as to give federal courts exclusive jurisdiction; and, should this Court enjoin a state court from proceeding with a prosecution brought under the statute.

The individual plaintiffs, Alan McSurely, Margaret McSurely, Joseph Mulloy, Carl Braden, and Anne Braden, are under indictment in the Pike County, Kentucky, Circuit Court for advocating sedition and criminal syndicalism. The defendants are Robert Matthews, Attorney General of Kentucky; Thomas B.

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Ratliff, Commonwealth's Attorney for the Pike County Circuit Court; Perry A. Justice, Sheriff of Pike County; and Grover Atkins, Jailer of Pike County.

Alan and Margaret McSurely, husband and wife, are field organizers for plaintiff Southern Conference Educational Fund, Inc., in Pike County, Kentucky. Alan McSurely is also a field organizer for the National Conference of New Politics and has distributed literature of Vietnam Summer, both unincorporated associations and both plaintiffs here. Joseph Mulloy is a field representative for the Appalachian Volunteers, an organization funded primarily by the United States Office of Economic Opportunity. According to the McSurelys and Mulloy, their official duties are to investigate the socio-eco-political milieu of Pike County, 'to inform the people of their rights,' and to help local citizens 'organize to overcome their problems.'

Anne and Carl Braden, husband and wife, are directors of the Southern Conference Educational Fund.

On the night of August 11, 1967, under authority of warrant charging seditious activities against the United States and the Commonwealth of Kentucky in violation of KRS 432.040, officials of Pike County and their deputies arrested the McSurelys and Mulloy. The officials also seized and impounded 564 loose books, 2 twenty-six posters, and twenty-two boxes of books, pamphlets, and other private and published documents found in the McSurely home. They also impounded a suitcase of clothes and several personal items which were caught up in the whirlwind of the search.

The McSurelys, together with Southern Conference Educational Fund and Vietnam Summer, filed their complaint in the United States District Court for the Eastern District of Kentucky. They alleged that KRS 432.040 is on its face unconstitutional and asked (1) that a three judge district court be convened; 3 (2) that defendants be enjoined from prosecuting the plaintiffs in the state court; (3) for an interlocutory injunction pending determination of the request for permanent relief; and (4) that the seized material be impounded by a federal marshal.

Judge Moynahan sustained the motion to certify for designation of a three judge district court. He denied the motion for interlocutory injunction and the motion to impound the seized material. Joseph Mulloy was permitted to intervene as a plaintiff.

After the hearing before Judge Moynahan, the warrants were amended so as to eliminate the charge of sedition against the United States.

This Court was convened on September 1, 1967. The Kentucky Civil Liberties Union was permitted to tender its motion to intervene as amicus curiae and to submit a brief. At the hearing on September 1, the parties agreed to a stipulation of facts, and the Court fixed time for making up the pleadings and for the filing of briefs. No temporary injunction was issued but the defendant Ratliff agreed in open court that he would not prosecute the criminal action in the Pike Circuit Court until final decision by this Court.

On September 8, the Attorney General of Kentucky filed his answer and motions. He moved that the action be dismissed for lack of jurisdiction and that, in the alternative, this Court stay its proceedings to await the exhaustion of state remedies. He also filed a general denial.

The news media continued to give the case wide publicity and spokesmen for both plaintiffs and defendants presented their arguments to the press and on national news programs.

On September 11, the Grand Jury of Pike County, acting under general instructions from the judge of that court, returned an indictment against the McSurelys, Mulloy, and Carl and Anne Braden, charging them with seditious activities

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against the Commonwealth of Kentucky and Pike County in violation of KRS 432.040. On the following day, the Brandens, who are residents of Louisville, Kentucky, made their appearance in Pike County and were arrested and placed in jail in default of bond. Plaintiffs then moved for an immediate hearing and renewed their motion for a temporary injunction. They also moved for a show cause order against the defendant Ratliff for contempt of court.

This Court held a second hearing on September 14, at which time the Bradens were allowed to intervene as plaintiffs. Testimony was given by the individual plaintiffs and by the defendant Ratliff. The testimony was to the effect that since the filing of the criminal prosecution against plaintiffs the people of Pike County are fearful of associating with them and it has become difficult for them to carry on their normal work; also that the publicity has jeopardized the position of the Appalachian Volunteers in obtaining funds from the Office of Economic Opportunity.

At the conclusion of the September 14 hearing we entered an order, Judge Moynahan dissenting, that KRS 432.040 is on its face unconstitutional; that the federal courts have exclusive jurisdiction of offenses of this nature; and that the Commonwealth of Kentucky and the Pike Circuit Court should be enjoined from proceeding further with the charges against the individual plaintiffs.

The statute in question is clearly unconstitutional under even the most flexible yardstick. It is too broad and too vague. It contravenes the First Amendment to the Constitution of the United States because it unduly prohibits freedom of speech, freedom of the press, and the right of assembly. It fails to distinguish between the advocacy of ideas and the advocacy of action. It makes it a criminal offense merely to possess, with intent to circulate, literature on the subject of sedition. It imposes the penalty of imprisonment for advocating an unpopular political belief. It would turn the courts into a forum for argument of political theories with imprisonment the penalty for the loser. It contains no requirement of criminal intent. The unwary and the ignorant could be enmeshed in the dragnet as easily as the covert plotter.

One of the definitions of sedition in the 1920 Act is, 'the advocacy or suggestion by word, act, deed or writing * * * of the change or modification of the Government of the United States or of the Commonwealth of Kentucky, or of the Constitution or laws of either of them, * * * by means other than by lawful means * * *.' Carroll's Kentucky Statutes, Baldwin's 1936 Revision. A person could thus be indicted for suggesting a change in the state or federal constitution 'by means other than by lawful means.' What is lawful would of necessity have to be decided by the presiding judge. This is a plain violation of the Sixth Amendment to the federal constitution which guarantees the right of the accused 'to be informed of the nature and cause of the accusation.' Under the Sixth Amendment a person cannot be charged merely with violating the law; the charge must be more specific.

For all these reasons KRS 432.040 violates basic constitutional guarantees which have been applied to the states through the Fourteenth Amendment for nearly half a century.

We are of the opinion that, even if the statute were constitutional, Congress has preempted this field and the federal courts have exclusive jurisdiction. Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956).

The criminal prosecution against these plaintiffs is pitched solely on the theory that they were engaged in a Communist conspiracy to overthrow the government of Kentucky and its subdivision, Pike County. This was made clear at the hearing on the motion for temporary injunction. There has been no...

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