413 U.S. 1 (1973), 71-1553, Gilligan v. Morgan

Docket Nº:No. 71-1553
Citation:413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407
Party Name:Gilligan v. Morgan
Case Date:June 21, 1973
Court:United States Supreme Court
 
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413 U.S. 1 (1973)

93 S.Ct. 2440, 37 L.Ed.2d 407

Gilligan

v.

Morgan

No. 71-1553

United States Supreme Court

June 21, 1973

Argued March 19, 1973

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

Respondents filed this action on behalf of themselves and all other students at a state university, claiming that, during a period of civil disorder on the campus in May, 1970, the National Guard, called by the Governor to preserve order, violated students' rights of speech and assembly and caused injury and death to some students. They sought injunctive relief to restrain the Governor in the future from prematurely ordering Guard troops to duty in civil disorders and an injunction to restrain Guard leaders from future violation of students' rights. They also sought a declaratory judgment that § 2923.55 of the Ohio Revised Code is unconstitutional. The District Court dismissed the suit on the ground that the complaint failed to state a claim upon which relief could be granted. The Court of Appeals affirmed the dismissal with respect to both injunctive relief against the Governor's "premature" employment of the Guard and the validity of the state statute, but held that the complaint stated a cause of action with respect to one issue, which was remanded to the District Court with directions to resolve the question whether there was and is

a pattern of training, weaponry and orders in the Ohio National Guard which . . . require . . . the use of fatal force in suppressing

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civilian disorders when the total circumstances are such that nonlethal force would suffice to restore order. . . .

Since the complaint was filed, the named respondents have left the university; the officials originally named as defendants no longer hold offices in which they can exercise authority over the Guard; the Guard has adopted new and substantially different "use of force" rules; and the civil disorder training of Guard recruits has been revised.

Held:

1. The case is resolved on the basis of whether the claims alleged in the complaint, as narrowed by the Court of Appeals' remand, are justiciable, rather than on possible mootness. Pp. 5.

2. No justiciable controversy is presented in this case, as the relief sought by respondents, requiring initial judicial review and continuing judicial surveillance over the training, weaponry, and standing orders of the National Guard, embraces critical areas of responsibility vested by the Constitution, see Art. I, § 8, cl. 16, in the Legislative and Executive Branches of the Government. Pp. 5-12.

456 F.2d 608, reversed.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which POWELL, J., joined, post, p. 12. DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., filed a dissenting statement, post, p. 12.

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BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

Respondents, alleging that they were full-time students and officers in the student government at Kent State University in Ohio, filed this action1 in the District Court on behalf of themselves and all other students on October 15, 1970. The essence of the complaint is that, during a period of civil disorder on and around the University campus in May, 1970, the National Guard, called by the Governor of Ohio to preserve civil order and protect public property, violated students' rights of speech and assembly and caused injury to a number of students and death to several, and that the actions of the National Guard were without legal justification. They sought injunctive relief against the Governor to restrain him in the future from prematurely ordering National Guard troops to duty in civil disorders and an injunction to restrain leaders of the National Guard from future violation of the students' constitutional rights. They also sought a declaratory judgment that § 2923.55 of the Ohio Revised Code2 is unconstitutional. The District Court held that the complaint failed to state a claim upon which relief could be granted, and dismissed the suit. The Court of Appeals3 unanimously affirmed the District Court's dismissal with respect to injunctive relief against the Governor's "premature" employment of the Guard on future occasions and with respect to the

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validity of the state statute.4 At the same time, however, the Court of Appeals, with one judge dissenting, held that the complaint stated a cause of action with respect to one issue which was remanded to the District Court with directions to resolve the following question:

Was there and is there a pattern of training, weaponry and orders in [93 S.Ct. 2443] the Ohio National Guard which, singly or together, require or make inevitable the use of fatal force in suppressing civilian disorders when the total circumstances at the critical time are such that nonlethal force would suffice to restore order and the use of lethal force is not reasonably necessary?5

We granted certiorari to review the action of the Court of Appeals.6

I

We note at the outset that, since the complaint was filed in the District Court in 1970, there have been a number of changes in the factual situation. At the oral argument, we were informed that none of the named respondents is still enrolled in the University.7 Likewise, the officials originally named as party defendants no longer hold offices in which they can exercise any authority over the State's National Guard,8 although the suit is against such parties and their successors in office. In addition, both the petitioners, and the Solicitor General appearing as amicus curiae, have informed us that, since 1970, the Ohio National Guard has adopted new "use of force" rules substantially differing from those in

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effect when the complaint was filed; we are also informed that the initial training of National Guard recruits relating to civil disorder control9 has been revised.

Respondents assert, nevertheless, that these changes in the situation do not affect their right to a hearing on their entitlement to injunctive and supervisory relief. Some basis, therefore, exists for a conclusion that the case is now moot; however, on the record before us we are not prepared to resolve the case on that basis and therefore turn to the important question whether the claims alleged in the complaint, as narrowed by the Court of Appeals' remand, are justiciable.

II

We can treat the question of justiciability on the basis of an assumption that respondents' claims, within the framework of the remand order, are true and could be established by evidence. On that assumption, we address the question whether there is any relief a District Court could appropriately fashion.

It is important to note at the outset that this is not a case in which damages are sought for injuries sustained during the...

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