Gilligan v. Morgan 8212 1553, No. 71

CourtUnited States Supreme Court
Writing for the CourtBURGER
PartiesJohn J. GILLIGAN, Governor of Ohio, et al., Petitioners, v. Craig MORGAN et al. —1553
Docket NumberNo. 71
Decision Date21 June 1973

413 U.S. 1
93 S.Ct. 2440
37 L.Ed.2d 407
John J. GILLIGAN, Governor of Ohio, et al., Petitioners,

v.

Craig MORGAN et al.

No. 71—1553.
Argued March 19, 1973.
Decided June 21, 1973.

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

Page 2

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. 4 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.

Thomas V. Martin, Columbus, Ohio, for petitioners.

Solicitor Gen. Erwin N. Griswold for the United States, as amicus curiae, by special leave of Court.

Michael E. Geltner, New York City, for respondents.

Page 3

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 an with respect to the

Page 4

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 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

Page 5

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 tragic occurrence at Kent State. Nor is it an action seeking a restraining order against some specified and imminently threatened unlawful action. Rather, it is a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard. This far-reaching demand for relief presents important questions of justiciability.

Respondents continue to seek for the benefit of all Kent State students a judicial evaluation of the appropriateness of the 'training, weaponry and orders' of the Ohio

Page 6

National Guard. They further demand, and the Court of Appeals' remand would require, that the District Court establish standards for the training, kind of weapons and scope and kind of orders to control the actions of the National Guard. Respondents contend that thereafter the District Court must assume and exercise a continuing judicial surveillance over the Guard to assure compliance with whatever training and operations procedures may be approved by that court. Respondents press for a remedial decree of this scope, even assuming that the recently adopted changes are deemed acceptable after an evidentiary hearing by the court. Continued judicial surveillance to assure compliance with the changed standards is what respondents demand.

In relying on the Due Process Clause of the Fourteenth Amendment, respondents seem to overlook the explicit command of Art. I, § 8, cl. 16, which vests in Congress the power:

'To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' (Emphasis added.)

The majority opinion in the Court of Appeals does not mention this very relevant provision of the Constitution. Yet that provision is explicit that the Congress shall have the responsibility for organizing, arming, and disciplining the Militia (now the National Guard), with certain responsibilities being reserved to the respective States. Congress has enacted appropriate legislation pursuant to Art. I, § 8, cl. 16,10 and has also authorized the Presi-

Page 7

dent—as the Commander in Chief of the Armed Forces—to prescribe regulations governing organization and discipline of the National Guard.11 The Guard is an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war. The...

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414 practice notes
  • Vance v. Rumsfeld, Nos. 10–1687
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 7, 2012
    ...than injunctive relief because they do not require the court to engage in operational decision-making. Compare Gilligan v. Morgan, 413 U.S. 1, 11, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) (rejecting a suit seeking judicial supervision of the operation and training of the Ohio National Guard in ......
  • Lipscomb v. Federal Labor Relations Authority, No. Civ.A. 401CV158LN.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • December 19, 2001
    ..."also may be federalized in addition to its role under state governments, to assist in controlling civil disorders," Gilligan v. Morgan, 413 U.S. 1, 7, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407 (1973). As the successor to the state militias of the nation's early years, see Maryland v. United Stat......
  • Minns v. U.S., No. 97-2234
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 2, 1998
    ...of an area of governmental activity in which the courts have less competence." Id. at 302, 103 S.Ct. 2362 (quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973)). Thus, even where a judicial action does not "contest the wisdom of broad military Page 449 policy," t......
  • Strang v. Marsh, Civ. A. No. 83-0409 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • February 21, 1985
    ...enmesh a court in numerous "professional military judgments" regarding matters about which the court knows little, e.g. Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973), this case creates no such risk. To the contrary, plaintiffs ask this Court to perform its c......
  • Request a trial to view additional results
413 cases
  • Vance v. Rumsfeld, Nos. 10–1687
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 7, 2012
    ...than injunctive relief because they do not require the court to engage in operational decision-making. Compare Gilligan v. Morgan, 413 U.S. 1, 11, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) (rejecting a suit seeking judicial supervision of the operation and training of the Ohio National Guard in ......
  • Lipscomb v. Federal Labor Relations Authority, No. Civ.A. 401CV158LN.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • December 19, 2001
    ..."also may be federalized in addition to its role under state governments, to assist in controlling civil disorders," Gilligan v. Morgan, 413 U.S. 1, 7, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407 (1973). As the successor to the state militias of the nation's early years, see Maryland v. United Stat......
  • Minns v. U.S., No. 97-2234
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 2, 1998
    ...of an area of governmental activity in which the courts have less competence." Id. at 302, 103 S.Ct. 2362 (quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973)). Thus, even where a judicial action does not "contest the wisdom of broad military Page 449 policy," t......
  • Strang v. Marsh, Civ. A. No. 83-0409 P.
    • United States
    • U.S. District Court — District of Rhode Island
    • February 21, 1985
    ...enmesh a court in numerous "professional military judgments" regarding matters about which the court knows little, e.g. Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973), this case creates no such risk. To the contrary, plaintiffs ask this Court to perform its c......
  • Request a trial to view additional results
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