Baxter v. Ellington

• Decision Date: 06 October 1970
• Docket Number: Civ. A. No. 6923.
• Citation: 318 F. Supp. 1079
• Parties: Jimmie BAXTER, Gary E. Crawford, Birt Waite, William L. Waters, Glenda Ruby and Benjamin Taylor, III v. Buford ELLINGTON, Individually and as Governor of the State of Tennessee, David Pack, Individually and as the Attorney General of the State of Tennessee, Bernard Waggoner, Individually and as Sheriff of Knox County, Tennessee, Harry Huskisson, Individually and as the Chief of Police of the City of Knoxville, Tennessee, and Arthur T. Whitehead, Individually and as Director of Safety & Security of the University of Tennessee.
• Court: U.S. District Court — Eastern District of Tennessee

318 F. Supp. 1079

Jimmie BAXTER, Gary E. Crawford, Birt Waite, William L. Waters, Glenda Ruby and Benjamin Taylor, III v. Buford ELLINGTON, Individually and as Governor of the State of Tennessee, David Pack, Individually and as the Attorney General of the State of Tennessee, Bernard Waggoner, Individually and as Sheriff of Knox County, Tennessee, Harry Huskisson, Individually and as the Chief of Police of the City of Knoxville, Tennessee, and Arthur T. Whitehead, Individually and as Director of Safety & Security of the University of Tennessee.

Civ. A. No. 6923.

United States District Court, E. D. Tennessee, N. D.

August 13, 1970.

Order October 6, 1970.

COPYRIGHT MATERIAL OMITTED

Bernard E. Bernstein, Charles D. Susano, Jr., Bernstein, Dougherty & Susano, Knoxville, Tenn., for plaintiff.

Tom Fox, Deputy Atty. Gen., Nashville, Tenn., Louis Woolf, McCampbell, Young, Bartlett & Woolf, J. Anthony Brown, Knox County Law Director, James E. Drinnon, Jr., Asst. Gen. Counsel, John C. Baugh, Gen. Counsel, Knoxville, Tenn., for defendants.

Before PHILLIPS, Chief Circuit Judge, and TAYLOR and WILSON, District Judges.

OPINION

ROBERT L. TAYLOR, District Judge.

Plaintiffs are student leaders at the University of Tennessee at Knoxville. They seek on their own behalf "and in behalf of other students as well as all other persons who use the facilities of the University of Tennessee at Knoxville" a declaratory judgment and injunctive relief from six statutes with criminal sanctions that allegedly proscribe activities protected by the First and Fourteenth Amendments. Defendants are the Governor of the State and other executive officials responsible for the enforcement of the laws of Tennessee.

During oral argument on the motion to convene a three-judge district court and issue a preliminary injunction, the parties observed that one of the attacked statutes, Tenn.Code Annot. 39-2805 "Prowling or traveling for purpose of destroying property or intimidating citizens" was held unconstitutional in part, but other parts of the statute were ruled to be valid by application of the doctrine of elision by the decision in the case of Armstrong v. Ellington, 312 F. Supp. 1119 (W.D.Tenn., 1970) and that a second, Tenn.Code Annot. 39-1213 "Disorderly Conduct" was declared unconstitutional on grounds of vagueness and overbreadth, Original Fayette County Civic and Welfare League v. Ellington, 309 F.Supp. 89 (W.D.Tenn., 1970), and re-enacted by the 1970 legislature, c. 581, Pub.Acts of 1970. Plaintiffs subsequently amended their complaint to challenge these statutes as modified.

The motion for a preliminary injunction was denied, and a three-judge court was convened to pass upon the constitutional questions presented. Defendants filed a motion to dismiss and an answer.

At the hearing, arguments were presented on the motion and on the merits. Certain stipulations were made, and exhibits filed. Plaintiffs' capacity as student leaders was acknowledged. Some of the indictments returned under these statutes, not against the named plaintiffs but against members of the purported class that they represent, were exhibited. Defendants agreed to file all indictments returned under these statutes. During the argument plaintiffs' attorney stated that, notwithstanding the complaint, there was no contention that defendants were guilty of bad faith in the enforcement of the challenged statutes.

The complaint reveals that much of the impetus behind this suit arose from a University of Tennessee campus disturbance on January 15, 1970, when twenty-two students and non-students were arrested and indictments were returned under the six statutes against seventeen of the twenty-two. Plaintiffs who were not arrested but who actively participate in campus politics contend that these statutes are invalid on their face because their wording is unduly vague, uncertain and broad. Specifically, they allege:

"* * * The continued application of these unconstitutional statutes has been threatened, and these plaintiffs and other members of their class are fearful of threatened future prosecutions. By virtue of these threatened prosecutions, the rights of the plaintiffs to exercise their freedom of expression, their freedom to assemble, and their freedom to petition for a redress of grievances have been severely curtailed. These statutes abridge the privileges and immunities of the plaintiffs as citizens of the United States and further deny to them equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States. These statutes are being used by the defendants to repress the plaintiffs, to inhibit the exercise of the freedoms guaranteed to them by the Constitution, and to stifle participation by young people in the processes of democracy at the University of Tennessee."

Defendants contend that the complaint should be dismissed because there is no actual controversy between the parties, that plaintiffs' fears are hypothetical and unfounded, and that they seek a mere advisory opinion of the validity of the statutes attacked in disregard of the requirement of Article III of the Constitution and the Declaratory Judgment Statute. 28 U.S.C. § 2201.¹

Cases which have been brought to our attention indicate that the line dividing abstract questions and controversies appropriate for judicial determination is one of degree. In Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), the Supreme Court reversed a declaratory judgment that a statute prohibiting the distribution of political handbills was unconstitutional. No substantial controversy existed because the distributor of the handbills opposed only one person who was not expected to campaign for some time. The Court stated:

"`The federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite. This is as true of declaratory judgments as any other field.' United Public Workers of America C.I.O. v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947). `The difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)." Id., at 108, 89 S.Ct. at 959.

A three-judge district court refused to issue a declaratory judgment in Mitchell v. Donovan, 300 F.Supp. 1145, vacated on other grounds 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970). The Court found that there was no certainty that the plaintiffs would run candidates in future elections or that the defendants would construe the statute in the same way in the future. Consequently, no present controversy required a ruling on the constitutionality of the challenged statute.

Defendants contend that Columbia Pictures Corp. v. City of Chicago, 288 F. Supp. 284 (N.D.Ill., 1968) supports their position. In that case, seven motion picture distributors asked for a declaration that a newly enacted censorship ordinance was unconstitutional. In holding that the matter had not ripened into a justiciable controversy, the Court stated:

"Plaintiffs allege nothing more than that they `desire' to distribute certain unspecified motion pictures in the Chicago area, and that they believe defendants `intend' to enforce the statutory provisions. Under the circumstances, this matter lacks `that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'" Id., at 285.

In a subsequent opinion involving the same parties, sub nom. Universal Film Exchanges, Inc. v. City of Chicago, 288 F.Supp. 286 (N.D.Ill., 1968), the Court was able to find a justiciable controversy when plaintiffs plead an inability to contract with various exhibitors for named films unless they complied with the ordinance. In neither case had plaintiffs been refused a permit by the defendants. Thus very few additional facts were needed to create a justiciable controversy.

In contrast to Columbia Pictures Corp. v. City of Chicago, supra, a three-judge district court reached the merits of a case which did not involve similar economic rights without a discussion of the existence of the case or controversy issue. In Harris v. Younger, 281 F.Supp. 507 (C.D.Cal., 1968), probable jurisdiction noted 393 U.S. 1013, 89 S.Ct. 611, 21 L.Ed.2d 558, reargument ordered 399 U.S. 922, 90 S.Ct. 2227, 26 L.Ed.2d 788 (1970), four plaintiffs attacked California's Criminal Syndicalism Act. One was under indictment for distributing leaflets, two alleged that they felt inhibited in advocating the policy of their political party because of the existence of the statute, and a history teacher alleged that he was uncertain as to whether his normal practice of teaching about revolutionary works would subject him to prosecution. Id., at 509.

Plaintiffs have alleged that the statutes under consideration inhibit their freedom of speech and their right to assemble and petition their government for redress of grievances. Considering the allegation that the security forces were the instigators of the campus disturbance, these fears are credible. Furthermore, the right to assemble and petition for redress is perhaps of more importance to students than adult citizens since many of the students lack the ability to influence political processes...