Goldman v. Olson

• Decision Date: 28 June 1968
• Docket Number: No. 67-C-152.,67-C-152.
• Parties: David L. GOLDMAN and Robert S. Cohen, individually and on behalf of those similarly situated, Plaintiffs, v. Jack OLSON, Robert W. Warren, Ernest C. Keppler, Leland S. McParland, Carl W. Thompson, William C. Hansen, Walter R. Chilsen, individually and as Chairman and Members of the Select Senate Committee appointed pursuant to Senate Resolution Thirteen, Senate Substitute Amendment One to Senate Resolution Thirteen, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

286 F. Supp. 35

David L. GOLDMAN and Robert S. Cohen, individually and on behalf of those similarly situated, Plaintiffs, v. Jack OLSON, Robert W. Warren, Ernest C. Keppler, Leland S. McParland, Carl W. Thompson, William C. Hansen, Walter R. Chilsen, individually and as Chairman and Members of the Select Senate Committee appointed pursuant to Senate Resolution Thirteen, Senate Substitute Amendment One to Senate Resolution Thirteen, Defendants.

No. 67-C-152.

United States District Court W. D. Wisconsin.

June 28, 1968.

COPYRIGHT MATERIAL OMITTED

Percy L. Julian, Jr., Michael A. Reiter, Madison, Wis., William M. Kunstler, Arthur Kinoy, New York City, Dennis Roberts, Harriet Van Tassel, Morton Stavis, Newark, N. J., for plaintiffs.

Bronson C. La Follette, Atty. Gen., James H. McDermott, Asst. Atty. Gen., Madison, Wis., for defendants.

Before FAIRCHILD, Circuit Judge, JAMES E. DOYLE and GORDON, District Judges.

JAMES E. DOYLE, District Judge.

This is an action for a declaration that an investigatory resolution of the Wisconsin State Senate violates the Constitution of the United States, and for appropriate injunctive relief. Jurisdiction is asserted under 28 U.S.C. § 1343(3) and (4), and 42 U.S.C. § 1983, among other provisions.

The complaint alleges that plaintiff Goldman is a student at the University of Wisconsin, and that he is president of the Madison chapter of Students for a Democratic Society. He has been subpoenaed to appear before a Select Senate Committee, operating pursuant to Senate Resolution 13, and Substitute Amendment 1 to Resolution 13, of the Senate of the State of Wisconsin.¹ He sues on his own behalf and on behalf of others similarly situated, including all members of the Students for a Democratic Society.

Plaintiff Cohen is alleged to be a graduate student and teaching assistant at the University of Wisconsin. He has also been subpoenaed to appear before the Select Senate Committee. He sues on his own behalf and on behalf of others similarly situated.

On October 18, 1967, there occurred an incident in and near the Commerce Building on the Madison campus of the University. A demonstration was conducted by a large number of people, most of whom presumably were students, against the holding of job interviews there by the Dow Chemical Company. The incident was extensively reported by newspaper, television and radio. Reportedly, the demonstration included physical obstruction of halls and doorways in the Commerce Building. Police action occurred. Injuries and hysteria ensued.

In response to these events, on October 20 the Senate adopted the Resolution under attack here. It refers generally to "the riotous situation occuring on the campus during the week of October 16th". It declares that this "situation" "appears prima facie to violate such law and policy"; "such" law and policy appear to relate to a preceding statement that it is the "policy" of the state "to encourage all persons to use the facilities of the University for all lawful purposes, including the right to interview and recruit for any lawful employment. * * *" The Resolution further declares that "student leaders of such riotous and unlawful conduct appear further to be leaders in the WEB DuBois Club and the Students for a Democratic Society". The Resolution then provides for a Select Committee "for the purpose of gathering the facts with respect to the riotous and unlawful activities of the week of October 16th and any prior or further such activities and the possible involvement of the WEB DuBois Club and Students for a Democratic Society in such activity. * * *"

Defendants are members of the Committee operating pursuant to the Resolution.

Plaintiffs claim that the defendants, acting under color of the Resolution, have undertaken to subject plaintiffs and others similarly situated to the deprivation of rights, privileges and immunities secured to them by the Constitution and laws of the United States; that the Resolution is invalid as written in that it violates the First and Fourteenth Amendments to the United States Constitution by reason of vagueness and overbreadth; that the Resolution is invalid as applied to plaintiffs and others similarly situated in that it would force public disclosure of opinions and associations of private citizens and would create and stimulate public stigma and scorn; that subpoenas were served upon plaintiffs on November 7, 1967, commanding them to appear before the Committee at a public hearing on November 9, 1967, "for the purpose of embarrassing, harassing and intimidating plaintiffs" and to deter them from the exercise of their First Amendment rights; and that there is no legitimate legislative purpose of the Committee investigation.

The record reveals that plaintiff Goldman was called to testify on November 9 and did testify. He was advised that questioning of him would be resumed on another occasion, and he and plaintiff Cohen were instructed that they would be given notice of the next meeting of the Committee and that they would be expected to be present. A temporary restraining order has been issued enjoining the defendants from requiring either or both of the named plaintiffs to appear before the Committee for the purpose of being questioned, pending hearing and determination by a three-judge court.

The matter came on for hearing before this three-judge court, convened pursuant to 28 U.S.C. § 2284. The parties were invited to discuss in their briefs and orally: (1) whether this United States District Court enjoys jurisdiction over the subject matter; (2) whether the complaint states a claim upon which relief may be granted; and (3) whether the action is appropriate to a single-judge court or a three-judge court. In their pleadings, brief, or oral argument, defendants have reasserted, in addition, that by virtue of Amendment XI to the United States Constitution this court lacks jurisdiction over the persons of the named defendants, and that this action is not properly a class action.

SUBJECT MATTER JURISDICTION

Defendants' contention that Amendment XI to the United States Constitution deprives this court of jurisdiction over the subject matter is without merit. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Wright, Handbook of the Law of Federal Courts (West, 1963), § 48.

Subsections (3) and (4) of 28 U.S.C. § 1343 confer upon federal district courts original jurisdiction of actions brought under 42 U.S.C. § 1983. There is no requirement of a jurisdictional amount. Hague v. C. I. O., 307 U.S. 496, 513, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Douglas v. City of Jeannette, 319 U.S. 157, 161, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). For jurisdictional purposes, the complaint meets the requirements of § 1983, by alleging that the defendants, under color of law, have undertaken to subject the plaintiffs to the deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States.

Defendants contend that § 1983 reaches only to persons who act "under color of any statute, ordinance, regulation, custom, or usage of any State or Territory", and that a resolution of one house of the bicameral Wisconsin legislature is neither a statute, ordinance, regulation, custom, nor usage of a state. This historic remedial Act of 1871 is not to be so strictly construed. Monroe v. Pape, 365 U.S. 167, 170-187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Thus, a resolution of the Wisconsin Senate is a "statute" for purposes of § 1983, despite questions whether it is a statute for other purposes, such as those reflected in 28 U.S.C. § 2281. In any event, it is not the Resolution alone under which defendants act. It is an implied power or "usage", presumably having its roots in the state constitution, State ex rel. Rosenhein v. Frear, 138 Wis. 173, 176-177, 119 N.W. 894 (1909), by which the legislature is authorized to conduct investigations.

In Jordan v. Hutcheson, 323 F.2d 597 (4th Cir., 1963), which involved a statute rather than a resolution, the court reversed a holding by the district court that it lacked jurisdiction to entertain a suit for injunctive relief brought under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 by persons subpoenaed to appear before a Committee of the Virginia State Legislature. The court stated (at p. 601):

"Although the federal courts will recognize and respect the state's right to exercise through its legislature broad investigatory powers, nevertheless these powers are not unlimited and it remains the duty of the federal courts to protect the individual's constitutional rights from invasion either by state action or under color thereof. Especially is this true in the sensitive areas of First Amendment rights and racial discrimination."

This court has original jurisdiction over the subject matter of this action under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4).

JURISDICTION OVER THE PERSONS OF THE DEFENDANTS

Defendants contend that Amendment XI to the United States Constitution deprives this court of jurisdiction over their persons. This contention is also without merit. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Wright, Handbook of the Law of Federal Courts (West, 1963), § 48.

CLASS ACTION

Whether either of the plaintiffs is entitled to bring this action on behalf of the class described in the complaint is an issue not yet explored. For the purpose of this opinion, the action will be viewed as an action by only the named plaintiffs as individuals.

THE NECESSITY OF THREE JUDGES

This action insofar as it seeks injunctive relief is appropriately determined by three judges.² 28 U.S.C. § 2281 reads:

"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes,

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