Gunn v. University Committee To End War In Viet Nam

• Citation: 26 L.Ed.2d 684,399 U.S. 383,90 S.Ct. 2013
• Decision Date: 29 June 1970
• Docket Number: No. 7,7
• Parties: Lester GUNN et al., Appellants, v. UNIVERSITY COMMITTEE TO END the WAR IN VIET NAM et al. Re
• Court: United States Supreme Court

399 U.S. 383

90 S.Ct. 2013

26 L.Ed.2d 684

Lester GUNN et al., Appellants,

v UNIVERSITY COMMITTEE TO END the WAR IN VIET NAM et al.

No. 7.

Reargued April 29, 30, 1970.

Decided June 29, 1970.

David W. Louisell, Berkeley, Cal., for appellants.

Sam Houston Clinton, Jr., Austin, Tex., for appellees.

Mr. Justice STEWART delivered the opinion of the Court.

On December 12, 1967, President Lyndon Johnson made a speech in Bell County, Texas, to a crowd of some 25,000 people, including many servicemen from nearby Fort Hood. The individual appellees¹ arrived at the edge of the crowd with placards signifying their strong opposition to our country's military presence in Vietnam. Almost immediately after their arrival, they were set upon by members of the crowd, subjected to some physical abuse, promptly removed from the scene by military police, turned over to Bell County officers, and taken to jail. Soon afterwards, they were brought before a justice of the peace on a complaint signed by a deputy sheriff, charging them with 'Dist the Peace.' They pleaded not guilty, were returned briefly to jail, and were soon released on $500 bond.

Nine days later they brought this action in a federal district court against Bell County officials, asking that a three-judge court be convened, that enforcement of the state disturbing-the-peace statute be temporarily and permanently enjoined, and that the statute be declared unconstitutional on its face, 'and/or as applied to the conduct of the Plaintiffs herein.' The statute in question is Article 474 of the Vernon's Ann. Texas Penal Code, which then provided as follows:

'Whoever shall go into or near any public place, or into or near any private house, and shall use loud and vociferous, or obscene, vulgar or indecent language or swear or curse, or yell or shriek or expose his or her person to another person of the age of sixteen (16) years or over, or rudely display any pistol or deadly weapon, in a manner calculated to disturb the person or persons present at such place or house, shall be punished by a fine not exceeding Two Hundred Dollars ($200).'

A few days after institution of the federal proceedings the state charges were dismissed upon motion of the county attorney, because the appellees' conduct had taken place within a military enclave over which Texas did not have jurisdiction. After dismissal of the state charges the defendants in the federal court filed a motion to dismiss the complaint on the ground that 'no useful purpose could now be served by the granting of an injunction to prevent the prosecution of these suits because same no longer exists.' The appellees filed a memorandum in opposition to this motion, conceding that there was no remaining controversy with respect to the prosecution of the state charges, but asking the federal court nonetheless to retain jurisdiction and to grant injunctive and declaratory relief against the enforcement of Article 474 upon the ground of its unconstitutionality. A stipulation of facts was submitted by the parties, along with memoranda, affidavits, and other documentary material.

With the case in that posture, the three-judge District Court a few weeks later rendered a per curiam opinion expressing the view that Article 474 is constitutionally invalid, 289 F.Supp. 469. The opinion ended with the following final paragraph:

'We reach the conclusion that Article 474 is impermissibly and unconstitutionally broad. The Plaintiffs herein are entitled to their declaratory judgment to that effect, and to injunctive relief against the enforcement of Article 474 as now worded, insofar as it may affect rights guaranteed under the First Amendment. However, it is the Order of this Court that the mandate shall be stayed and this Court shall retain jurisdiction of the cause pending the next session, special or general, of the Texas legislature, at which time the State of Texas may, if it so desires, enact such disturbing-the-peace statute as will meet constitutional requirements.' 289 F.Supp., at 475.

The defendants took a direct appeal to this Court, relying upon 28 U.S.C. § 1253, and we noted probable jurisdiction. 393 U.S. 819, 89 S.Ct. 119, 21 L.Ed.2d 90. The case was originally argued last Term, but was, on June 16, 1969, set for reargument at the 1969 Term. 395 U.S. 956, 89 S.Ct. 2096, 23 L.Ed.2d 744. Reargument was held on April 29 and 30, 1970. We now dismiss the appeal for want of jurisdiction.

The jurisdictional statute upon which the parties rely, 28 U.S.C. § 1253, provides as follows:

'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'

The statute is thus explicit in authorizing a direct appeal to this Court only from an order of a three judge district court 'granting or denying * * * an interlocutory or permanent injunction.' Earlier this Term we had occasion to review the history and construe the meaning of this statute in Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663. In that case a divided Court held that the only interlocutory orders that this Court has power to review under § 1253 are those granting or denying preliminary injunctions. The present case, however, involves no such refined a question as did Goldstein. For here there was no order of any kind either granting or denying an injunction—interlocutory or permanent. Cf. Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806; Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378. All that the District Court did was to write a rather discursive per curiam opinion, ending with the paragraph quoted above.² After the Texas Legislature at its next session took no action with respect to Article 474, the District Court entered no further order of any kind. And even though the question of this Court's jurisdiction under § 1253 was fully exposed at the original oral argument of this case, the District Court still entered no order and no injunction during the 15-month period that elapsed before the case was argued again.

What we deal with here is no mere technicality. In Goldstein v. Cox, supra, we pointed out that: 'This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since 'any loose construction of the requirements of (the Act) would defeat the purpose of Congress * * * to keep within narrow confines our appellate docket.' Phillips v. United States, 312 U.S. (246), at 250, 61 S.Ct. (480) at 483 (85 L.Ed. 800). See Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 375, 69 S.Ct. 606, 610, 93 L.Ed. 741 (1949); Moore v. Fidelity & Deposit Co., 272 U.S. 317, 321, 47 S.Ct. 105, 106, 71 L.Ed. 273 (1926).' 396 U.S., at 478, 90 S.Ct., at 675. But there are underlying policy considerations in this case more fundamental than mere economy of judicial resources.

One of the basic reasons for the limit in 28 U.S.C. § 1253 upon our power of review is that until a district court issues an injunction, or enters an order denying one, it is simply not possible to know with any certainty what the court has decided—a state of affairs that is conspicuously evident here. The complaint in this case asked for an injunction '(r)estraining the appropriate Defendants, their agents, servants, employees and attorneys and all others acting in concert with them from the enforcement, operation or execution of Article 474.' Is that the 'injunctive relief' to which the District Court thought the appellees were 'entitled'? If not, what less was to be enjoined. or what more? And against whom was the injunction to run? Did the District Court intend to enjoin enforcement of all the provisions of the statute? Or did the court intend to hold the statute unconstitutional only as applied to speech, including so-called symbolic speech? Or was the court confining its attention to that part of the statute that prohibits the use, in certain places and under certain conditions, of 'loud and vociferous * * * language'? The answers to these questions simply cannot be divined with any degree of assurance from the per curiam opinion.

Rule 65(d) of the Federal Rules of Civil Procedure provides that any order granting an injunction 'shall be specific in terms' and 'shall describe in reasonable detail * * * the act or acts sought to be restrained.'³ As we pointed out in International Longshoremen's Assn. Local 1291 v. Philadelphia Marine Trade Assn., 389 U.S. 64, 74, 88 S.Ct. 201, 206, 19 L.Ed.2d 236, the 'Rule * * * was designed to prevent precisely the sort of confusion with which this District Court clouded its command.' An injunctive order is an extraordinary writ, enforceable by the power of contempt. 'The judicial contempt power is a potent...