Commonwealth of Massachusetts v. Laird

• Decision Date: 01 June 1971
• Docket Number: Civ. A. No. 71-419-W.
• Citation: 327 F. Supp. 378
• Parties: COMMONWEALTH OF MASSACHUSETTS, Richard Acker et al., v. Melvin R. LAIRD, Secretary of Defense.
• Court: U.S. District Court — District of Massachusetts

327 F. Supp. 378

COMMONWEALTH OF MASSACHUSETTS, Richard Acker et al., v. Melvin R. LAIRD, Secretary of Defense.

Civ. A. No. 71-419-W.

United States District Court, D. Massachusetts.

June 1, 1971.

Robert H. Quinn, Atty Gen. for Massachusetts, Robert J. Condlin, Walter H. Mayo, III, Asst. Attys. Gen., Boston, Mass., for plaintiff.

Herbert F. Travers, Jr., U. S. Atty., William A. Brown, Asst. U. S. Atty., Boston, Mass., for defendant.

OPINION

WYZANSKI, Chief Judge.

The Commonwealth of Massachusetts and several individuals have filed a complaint against the Secretary of Defense. The individuals allege that they are inhabitants of Massachusetts who are members of the armed forces of the United States and are now being or will be required to serve in the conduct of armed hostilities in Southeast Asia. Plaintiffs seek to obtain an adjudication of the constitutionality of the United States' participation in the Vietnam war. Jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1332.

The complaint prays that the United States' participation be declared "unconstitutional in that it was not initially authorized or subsequently ratified by congressional declaration", and that the Secretary "be enjoined from carrying out, issuing, or causing to be issued any further orders directing any of the above-named plaintiffs or any other inhabitant of the Commonwealth of Massachusetts to Southeast Asia for the purpose of participating in combat or supporting combat troops in the Vietnam war, and from extending the tour of duty of any of the above-named plaintiffs or any other inhabitant of the Commonwealth who may be serving in the Vietnam war, said injunction to become effective ninety days from the date of entry of a decree in this cause in the event Congress shall not have acted within said ninety days to make a declaration of war or otherwise to approve, ratify or authorize United States participation in the Vietnam war."

Defendant has moved to dismiss the complaint on the ground, among others, that it "presents questions not susceptible to judicial determination."

The complaint must be dismissed on alternate grounds: either because it presents a controversy which lacks justiciability or because matters of which the court takes judicial notice show the complaint is without merit.

Except for the addition of the individual plaintiffs, the complaint at bar is in all important respects substantially the same as the complaint which the Supreme Court of the United States denied Massachusetts leave to file in that court. Massachusetts v. Laird, 400 U.S. 886, 91 S.Ct. 128, 27 L.Ed.2d 130 (Nov. 9, 1970). From a strictly technical view, the action of the Supreme Court does not control this court inasmuch as, absent an opinion, we cannot be sure whether that court's action was on a discretionary or on a jurisdictional basis. It is conceivable that the Supreme Court denied Massachusetts leave to file solely because there was another suitable forum. Massachusetts v. Missouri, 308 U.S. 1, 19-20, 60 S.Ct. 39, 84 L.Ed. 3, (1939). See Stern and Gressman, Supreme Court Practice, 4th ed., § 10.7, pp. 399-400. However, it is difficult to escape the inference, in the light of the dissenting opinion of Mr. Justice Douglas and the explanations given by Mr. Justice Harlan and Mr. Justice Stewart for their dissenting votes, that the six justices who joined in denying Massachusetts leave to file its complaint in Massachusetts v. Laird, 400 U.S. 886, 91 S.Ct. 128 (Nov. 9, 1970) had concluded that Massachusetts lacked standing and that the controversy lacked justiciability.

But if this court is not technically bound by the Supreme Court's action in Massachusetts v. Laird, supra, it regards it as inappropriate, except in a case where he is virtually certain that he is on sound ground, for a district judge to refuse to follow the virtually unanimous authority of the lower federal courts to the effect that the issue here sought to be presented is non-justiciable. Of the cases in the lower courts one has special significance.

Luftig v. McNamara, 126 U.S.App.D. C. 4, 373 F.2d 664, (1967), has an authority to which a district judge must give particular weight. The now Chief Justice of the United States, (then Circuit Judge Burger), Circuit Judge Coffin of the Court of Appeals of this First Circuit, and Circuit Judge Miller, affirmed a dismissal of a suit for a declaratory judgment and injunctive relief brought by an Army private to enjoin the Secretary of Defense and others from sending him to Vietnam. The private had claimed that American military action in Vietnam was unconstitutional and illegal and the Secretary of Defense had no lawful authority to assign him there. In rejecting the claim, the court, through Miller C. J., said at pp. 665-666:

"The District Court sua sponte ordered dismissal of the complaint on the ground that the relief sought represented a claim for judicial review of political questions beyond its jurisdiction and that it was an unconsented suit against the United States.

The District Court was, of course, eminently correct on both its primary and alternative grounds for dismissal; these propositions are so clear that no discussion or citation of authority is needed. The only purpose to be accomplished by saying this much on the subject is to make it clear to others comparably situated and similarly inclined that resort to the courts is futile, in addition to being wasteful of judicial time, for which there are urgent legitimate demands.

It is difficult to think of an area less suited for judicial action than that into which Appellant would have us intrude. The fundamental division of authority and power established by the Constitution precludes judges from overseeing the conduct of foreign policy or the use and disposition of military power; these matters are plainly the exclusive province of Congress and the Executive, Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S. Ct. 936, 94 L.Ed. 1255. * * *"

The citation relied upon in Luft...