398 F.2d 817 (6th Cir. 1968), 18638, McSurely v. Ratliff

Docket Nº:18638.
Citation:398 F.2d 817
Party Name:Alan McSURELY, Margaret McSurely, Southern Conference Educational Fund, Inc., the National Conference for New Politics, and Vietnam Summer, Appellants, and Joseph Mulloy, Intervenor, v. Thomas B. RATLIFF, Commonwealth's attorney for the 35th Judicial District, Pike County, Kentucky; Perry A. Justice, Sheriff of Pike County, Kentucky; Grover Atkins,
Case Date:July 29, 1968
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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398 F.2d 817 (6th Cir. 1968)

Alan McSURELY, Margaret McSurely, Southern Conference Educational Fund, Inc., the National Conference for New Politics, and Vietnam Summer, Appellants, and Joseph Mulloy, Intervenor,

v.

Thomas B. RATLIFF, Commonwealth's attorney for the 35th Judicial District, Pike County, Kentucky; Perry A. Justice, Sheriff of Pike County, Kentucky; Grover Atkins, Jailer of Pike County, Kentucky; and Robert L. Matthews, Attorney General for the Commonwealth of Kentucky, Appellees, and United States of America, Intervenor.

No. 18638.

United States Court of Appeals, Sixth Circuit.

July 29, 1968

         Morton Stavis, Newark, N.J. (Dan Jack Combs, Pikeville, Ky., Arthur Kinoy, William B. Kumstler, New York City, on the brief), for appellants.

         Robert V. Zener, Dept. of Justice, Washington, D.C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, Washington, D.C., George B. Cline, U.S. Atty., Lexington, Ky., on the brief), for appellees.

         Before PHILLIPS, CELEBREZZE and McCREE, Circuit Judges.

         PER CURIAM.

         State and local authorities of Kentucky commenced a prosecution of Alan McSurely and wife, Margaret McSurely, under the Anti-Sedition Law of the Commonwealth, KRS 432.040. Numerous books, pamphlets and documents were seized in connection with the arrests.

         The McSurelys brought an action in the United States District Court to enjoin the prosecution, invoking the doctrine of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. A three-judge District Court held the Anti-Sedition statute to be unconstitutional on the grounds of vagueness and federal preemption. 282 F.Supp. 848. Enforcement of the statute and the pending State criminal prosecution were enjoined. No appeal was taken from this decision. The District Court directed that the seized documents be retained in the possession of the Commonwealth attorney for safekeeping until final disposition of the case by appeal or otherwise.

         After the decision of the District Court and before the time for appeal had expired, subpoenas duces tecum ordering production of certain of the seized documents were issued by the Permanent Subcommittee on Investigations of the Committee on Government Operations of the United States Senate.

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         The Subcommittee issued the subpoenas in connection with its investigation of riots and...

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