Fortune v. Molpus, 29659.

• Citation: 431 F.2d 799
• Decision Date: 12 May 1970
• Docket Number: No. 29659.,29659.
• Parties: Porter L. FORTUNE, Jr., et al., Defendants-Appellants, v. David L. MOLPUS et al., Plaintiffs-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

431 F.2d 799 (1970)

Porter L. FORTUNE, Jr., et al., Defendants-Appellants, v. David L. MOLPUS et al., Plaintiffs-Appellees.

No. 29659.

United States Court of Appeals, Fifth Circuit.

May 12, 1970.

A. F. Summer, Atty. Gen. of Mississippi, William A. Allain, Asst. Atty. Gen., James E. Rankin, Special Asst. Atty. Gen., Jackson, Miss., Will A. Hickman, Oxford, Miss., for defendants-appellants.

Douglas C. Wynn, J. Wesley Watkins, III, Eugene M. Bogen, Fred C. DeLong, Jr., James L. Robertson, Greenville, Miss., for plaintiffs-appellees.

Before WISDOM, THORNBERRY, and CLARK, Circuit Judges.

ORDER

BY THE COURT:

On February 19, 1970, the University of Mississippi chapter of the Young Democratic Clubs of Mississippi requested Chancellor Porter L. Fortune's permission to invite Tyrone Gettis, President of the Student Body at Mississippi Valley State College, to speak on the University campus February 26, 1970. During January and February the allblack student body at Gettis's college had staged almost continuous demonstrations in support of numerous demands made by them upon college officials. Chancellor Fortune concluded that Gettis's appearance as a guest speaker at the University would constitute a "clear and present danger to the institution's orderly operation". He therefore disapproved of the request, and the Young Democrats withdrew their request.

On March 4, 1970, the Young Democrats requested permission for Gettis to speak March 18, 1970. Chancellor Fortune notified them the same day that he would not approve the request. The Young Democrats, by letter to Chancellor Fortune, promptly requested a review of this denial by the Campus Review Committee. The Review Committee conducted a hearing. March 7 it disapproved the request by a vote of four to one. The Review Committee maintained no record of its hearing and assigned no written reasons for its decision.¹

Three members of the Young Democrats (Molpus, Cupit, and Webb) then instituted a class action in the Northern District of Mississippi seeking injunctive relief to require the University to approve the plaintiffs' request for permission to invite Gettis to speak. The plaintiffs also sought an injunction to restrain the University from further interfering with the rights to assemble peaceably and to hear speakers of their choice. After a full hearing, the district court concluded that its jurisdiction was not foreclosed by Stacy v. Williams, N. D. Miss.1969, 306 F.Supp. 963. In Stacy, a three-judge court promulgated rules concerning guest speakers at institutions of higher learning in Mississippi. That court in its final decree "retained jurisdiction for the enforcement of this order and all matters relating thereto". But the rules it set forth provided that "any sponsoring organization aggrieved by the action of the Campus Review Committee in denying the request may obtain judicial review thereof upon application to any court of competent jurisdiction, state or federal, by presenting its verified petition setting forth the grounds of complaint * * *." 306 F.Supp. at 980. The district court here concluded that it could not amend the rules adopted in Stacy, establish procedural guidelines for the Campus Review Committee, or prohibit future interference with peaceable assembly, but that it could rule on the propriety of the University's refusal to allow Gettis to speak on campus under the Young Democrats' sponsorship.²

The rules set out in Stacy do not provide a procedure whereby the head of the University or the Review Committee is to reach a decision. They do provide, however, that the Review Committee shall give the request "de novo consideration". Since the Review Committee maintained no record of its hearing, the district court concluded that in reviewing the Committee's decision, the court must receive live testimony and conduct a de novo hearing of its own. Since first amendment rights were at stake, moreover, the district court concluded that the university bore the burden of proof

to show by clear and convincing evidence that the speech of Mr. Gettis will constitute a clear and present danger to the University\'s orderly operation because of the speaker\'s advocacy of the willful damage and destruction, or seizure and subversion, of the buildings or other property of the University; or the forcible disruption or impairment of, or interference with, the regularly scheduled classes or other educational functions of the University, or the physical harm, coercion, intimidation, or other invasion of lawful rights, of the officials, faculty members or students of the University; or some other campus disorder of a violent nature.

On the basis of the evidence set out in the margin,³ the district court concluded

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that Mr. Gettis's appearance on the campus would not present a clear and present danger to the orderly operation of the University. He, therefore, reversed the decision of the Campus Review Committee and directed University officials to approve the Young Democrats' request.

The district court entered its order March 31, 1970. April 6, 1970, that court denied the University's motion for a stay of the order pending appeal, saying in chambers that "a stay would be tantamount to denying the plaintiffs the right which they seek, because it would be impossible to perfect this appeal and for the appeal to be heard and decided in time for Mr. Gettis to make his speech at the university on this very timely subject".

April 16, 1970, the University petitioned Circuit Judge James P. Coleman for a stay of the March 31 order. Judge Coleman believed that the University had not abused its discretion under Stacy in refusing to allow Gettis to speak. He concluded, therefore, that the appeal was not without merit, and granted a temporary stay April 17, 1970, "subject to the rights of the appellees, if they be so advised, to move the undersigned for a dissolution of this order or to move that it be referred to a panel of this Court for its further consideration and disposition, in keeping with the usual procedure of the Court on such matters".

The plaintiffs have pursued the second option of Judge Coleman's order. They have moved this Court to vacate his order granting a temporary stay pending appeal. Plaintiffs assert by affidavit of their lawyer that neither they nor their attorneys received any notice of the University's application to Judge Coleman for a stay until Judge Coleman's order granting the stay issued April 17, 1970. In its response to the plaintiffs' motion to vacate the order, the University has not replied to this assertion. The University contends that the plaintiffs' decision to refer the matter to the Court rather than petition Judge Coleman to dissolve his stay places before the Court the merits of the University's motion for a stay pending appeal (filed with the Court April 21, 1970) and to advance the case for hearing. The plaintiffs do not oppose the motion to advance the case for hearing, but maintain that the correctness of the single-judge stay pending appeal is an issue as well as the propriety of the Court's now issuing a stay.

The merits of this case are not before us. They may be determined at a later date by an appropriate panel of this Court.⁴ The plaintiffs have moved to vacate Judge Coleman's order of April 17. Rule 8(a) of the Federal Rules of Appellate Procedure provides that in an application for a stay of a district court's order "reasonable notice of the motion shall be given to all parties". Thus, the uncontested affidavit of the plaintiffs' attorney casts serious doubt on the April 17 order. See Carroll v. President & Commissioners of Princess Anne, 1968, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325. But Judge Coleman's temporary order specifically provides that the matter may be further considered by the Court. The terms of his order therefore contemplate that the order would expire upon the issuance of an order duly arrived at by a panel of the Court. The University considers its motion to the Court for a stay to be properly before us. We conclude that we have jurisdiction to rule on the request for a stay.

This Court has said that a party seeking a stay must satisfy four basic conditions:

(1) A likelihood that the petitioner will prevail on the merits of the appeal; (2) Irreparable injury to the petitioner unless the stay is granted; (3) No substantial harm to other interested persons; and (4) No harm to the public interest.

Pitcher v. Laird, 5 Cir. 1969, 415 F.2d 743, 744-745, quoting Covington v. Schwartz, N.D.Cal.1964, 230 F.Supp. 249. We conclude that under these standards the University's request for a stay must fail.

(1) The University has not shown a real likelihood that it will prevail on the merits. It advances three grounds for overruling the district court's decision. It contends that it was denied due process because it did not know until the opinion was released that the burden of proof lay upon it to sustain its action; that the district court encroached upon the jurisdiction of the Stacy court; and that the district court's statement that the Chancellor and the Review Committee had acted in good faith and in what they considered the University's best interests required an affirmance of their decisions. First, we consider it highly problematic that the University can claim prejudice on the ground that the district court at first believed the burden of proof to lie on the other side. Stacy provided that a court should make its decision "as may be proper under the law and facts". 306 F.Supp. at 980. The University's lawyer was equipped to discover what the law on the burden of proof was and present sufficient evidence to meet that burden. With regard to the second ground, Stacy specifically provided for judicial review of the Review Committee's decisions. There was no encroachment on the Stacy court simply because the district court here was compelled to hold a de novo...