Dole v. Carter

• Citation: 444 F. Supp. 1065
• Decision Date: 30 December 1977
• Docket Number: Civ. A. No. 77-2310.
• Court: U.S. District Court — District of Kansas
• Parties: Robert DOLE, Plaintiff, v. Jimmy CARTER, President of the United States of America, Defendant.

444 F. Supp. 1065

Robert DOLE, Plaintiff, v. Jimmy CARTER, President of the United States of America, Defendant.

Civ. A. No. 77-2310.

United States District Court, D. Kansas.

December 30, 1977.

Kenneth E. Holm, of Boddington & Brown, Kansas City, Kan., for plaintiff.

James P. Buchele, U. S. Atty., James Oliver Martin, Asst. U. S. Atty., Kansas City, Kan., for defendant.

MEMORANDUM AND ORDER

O'CONNOR, District Judge.

This case, a declaratory judgment action seeking to enjoin the President of the United States from returning to the People's Republic of Hungary the Hungarian coronation regalia, is now before the court for determination of the plaintiff's motion for a preliminary injunction. The action was filed on December 23, 1977, eight days after release of a joint communique by the governments of the United States and Hungary to the effect that said regalia, safeguarded in the United States since the close of World War II, would be returned to the people of Hungary in ceremonies in Budapest on January 6 and 7, 1978. On the same day that this action was filed, the court held a hearing, attended by counsel for both parties, on the plaintiff's motion for a temporary restraining order. Said motion was denied upon the court's receipt of assurances by defense counsel that the President would retain custody of the coronation regalia until such time as the court could hear the plaintiff's motion for a preliminary injunction and render a decision thereon. On December 29, 1977, the court conducted an expedited hearing on the latter motion, together with the motion to dismiss or, in the alternative, a motion for summary judgment filed by defendant. In view of the urgent circumstances surrounding the litigation and adjudication of the claims advanced herein, the court has had little opportunity to prepare an extensive opinion expounding upon the vast array of constitutional, political, and legal issues in this case. Nevertheless, after scrutinizing the relevant law in light of the facts developed in the record before us, the court is convinced that the plaintiff's motion for a preliminary injunction must be denied.

The salient facts in this case, briefly summarized, are as follows: In approximately 1000 A.D., Pope Sylvester II donated to Stephen, then Duke of Hungary, a crown establishing Stephen as the first King of Hungary and declaring Hungary a state in the international system of Europe. This crown, which became known as the Holy Crown of St. Stephen or the Holy Crown of Hungary, thereafter assumed extraordinary historical importance to the people of Hungary, symbolizing both the constitutional monarchy of Hungary and the freedom of religion from governmental interference in Hungary. The Holy Crown apparently remained in Hungarian custody from 1000 A.D. until July 25, 1945, shortly after the surrender of all German forces in Europe at the conclusion of World War II but prior to the signing of the Paris Peace Treaty of February 10, 1947, 61 Stat. 2065, ending the state of war between the Allied Powers and Hungary. At that time the Hungarian Commander of the Crown Guards entrusted to the United States for safekeeping the Holy Crown and other coronation regalia including the Coronation Robe, Orb, Sceptre and Sword. To date, the United States has secured said regalia in an undisclosed location with a view to its eventual return to the people of Hungary.

As previously noted, on December 15, 1977, the United States and Hungarian governments jointly announced that the President of the United States had determined it "appropriate and fitting" that the Hungarian coronation regalia be returned to the people of Hungary at ceremonies on January 6 and 7, 1978, and that it be thereafter placed on permanent public display in an appropriate historical location in Budapest for "the population of the country, Hungarians living abroad, and foreigners alike to see." This communique resulted from an exchange of diplomatic letters on December 13, 1977, outlining various agreements of the United States and Hungary as to the conditions under which the coronation regalia was to be returned, the nature of the attendant ceremonies, and ceremonial objectives of emphasizing "traditional United States — Hungarian ties, friendship between our two peoples, and our mutual desire to continue the development of better bilateral relations." Announcement of the proposed return of the Holy Crown generated not inconsiderable public controversy in various sectors, including groups of Hungarian nationals in the United States and elsewhere, members of the Roman Catholic Church, and certain members of the United States Senate and House of Representatives.

On December 23, 1977, Robert Dole, a United States Senator from the State of Kansas, filed the instant action seeking to enjoin delivery of the Holy Crown and coronation regalia to the People's Republic of Hungary on the ground that such action, undertaken by the President without the prior advice and consent of the United States Senate, constitutes a violation of Article II, Section 2, of the Constitution of the United States. That constitutional provision, in relevant part, confers upon the President the power, "by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The plaintiff's argument is premised upon his factual assertion that the subject of custody of the Holy Crown was by tacit agreement of the American and Hungarian authorities deliberately omitted from the text of the Paris Peace Treaty of February 10, 1947, in order to prevent the Soviet Union — a co-signer of the Treaty, then occupying Hungary — from asserting any claim of right to possession thereof. According to the plaintiff, the American and Hungarian authorities not only agreed that the Paris Peace Treaty would be silent on this subject; they also tacitly agreed that (1) the United States would retain custody of the coronation regalia until such time as Soviet troops were withdrawn from Hungary in accord with Article 22 of the Paris Peace Treaty; and (2) return of the regalia would be effectuated only after negotiation of an appropriate treaty between the United States and a legitimate Hungarian government at some future date. The plaintiff contends that this "silent agreement" is an integral part of the Paris Peace Treaty of 1947 that cannot be varied or modified without the making of another formal treaty ratified by the Senate. In the alternative, he claims that any agreement to return the coronation regalia to Hungary in and of itself constitutes a new bilateral treaty for which the President must seek Senate approval. Therefore, the President's unilateral undertaking to return said regalia, evidenced by the December 13, 1977, exchange of letters, is said to be ultra vires and beyond the scope of his lawful constitutional authority.

In assessing the merits of the plaintiff's motion for injunctive relief, the court commences with the fundamental rule of law that a preliminary injunction is an "extraordinary remedy" that should be granted only upon a proper showing. The burden is clearly upon one requesting such relief to make a "prima facie case showing a reasonable probability" that he will ultimately prevail on the merits of his claim. E. g., Penn v. San Juan Hospital, Inc., 528 F.2d 1181 (10th Cir. 1975); Continental Oil Company v. Frontier Refining Company, 338 F.2d 780 (10th Cir. 1964). In addition, the applicant has the burden of showing that "irreparable injury" will result if the requested injunction is not granted. E. g., Chris-Craft Industries, Inc. v. Bangor Punta Corp., 426 F.2d 569 (2 Cir. 1970); Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969).

In determining whether the plaintiff here has established a reasonable probability of success on the merits of his claim, the court must confront the two crucial issues in this case: (1) whether the alleged "tacit agreement" is such an integral part of the Paris Peace Treaty that it can be modified only by enactment of a formal treaty approved by a two-thirds vote of the Senate; and (2) whether the President's agreement to return the Hungarian coronation regalia constitutes a treaty obligation that must be ratified by the Senate.

The first issue must be resolved contrary to the plaintiff's argument. The only evidence he produces in support thereof consists of affidavits by individuals who allegedly are familiar with the circumstances under which the coronation regalia was turned over to American authorities. No affidavits have been provided from individuals who were involved in the actual treaty negotiation process. Defendant, however, has provided us with the affidavit of Mark B. Feldman, Deputy Legal Advisor of the Department of State. Mr. Feldman states that after having searched all relevant files he "has not discovered any indication of any understanding between United States and Hungarian authorities concerning the application or nonapplication of the 1947 Treaty of Peace to the Crown of St. Stephen, tacit or otherwise." The record is void of anything indicating that Hungarian officials who approved the 1947 Paris Peace Treaty, President Truman, and United States Senators who voted in favor of ratification of the treaty, were aware of and understood the "silent agreement by tacit omission." The court is not impressed with plaintiff's contention that this alleged "silent agreement" can rise to the level of a formal treaty which can only be modified by another formal treaty ratified by the Senate.

We turn now to the plaintiff's argument that the agreement to return the coronation regalia to Hungary in and of itself constitutes a treaty which must be ratified by the Senate. It is well established, and even plaintiff admits, that the United States frequently enters into international agreements other than treaties. Indeed, as of January 1, 1972, the United States was a party to 5,306...