Hammond v. Brown

• Decision Date: 28 January 1971
• Docket Number: C 70-1039.,Civ. A. No. C 70-998
• Citation: 323 F. Supp. 326
• Parties: Kenneth J. HAMMOND et al., Plaintiffs, v. Paul W. BROWN, Individually and as the Attorney General of Ohio, et al., Defendants. Raymond J. ADAMEK et al., Plaintiffs, v. Paul W. BROWN, Individually and as the Attorney General of Ohio, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

323 F. Supp. 326

Kenneth J. HAMMOND et al., Plaintiffs, v. Paul W. BROWN, Individually and as the Attorney General of Ohio, et al., Defendants.

Raymond J. ADAMEK et al., Plaintiffs, v. Paul W. BROWN, Individually and as the Attorney General of Ohio, et al., Defendants.

Civ. A. Nos. C 70-998, C 70-1039.

United States District Court, N. D. Ohio, E. D.

January 28, 1971.

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Gerald A. Messerman, Benjamin B. Sheerer, Jerry Gordon, Cleveland, Ohio, David Scribner, New York City, for plaintiffs.

Robert D. Macklin, Columbus, Ohio, Robert L. Balyeat, Sp. Counsel, Lima, Ohio, Perry G. Dickinson, Seabury H. Ford, Ravenna, Ohio, for defendants.

MEMORANDUM AND ORDER

WILLIAM K. THOMAS, District Judge.

Each of these actions seeks declaratory and injunctive relief, and each is founded on 42 U.S.C. ? 1983 (1964) (deprivation of civil rights). Consolidated for trial each action requests a permanent injunction to bar the prosecution of the 25 persons secretly indicted on October 16, 1970, by a Special Grand Jury of Portage County (Ohio) Common Pleas Court, in 30 true bills of indictment covering 43 offenses. Also requested is an order to expunge a written report presented by the Special Grand Jury to the Honorable Edwin W. Jones, Judge of the Common Pleas Court of Portage County, at the same time the indictments were secretly returned.

The indictments grow out of events of May 1 through May 4, 1970, that took place on and off the campus of Kent State University in Kent, Ohio. Dealing with those events on October 4, 1970, the President's Commission on Campus Unrest issued a "Special Report ?€”The Kent State Tragedy." The Special Grand Jury Report, the validity of which is an issue in this case, attempts to chronicle the same events. The issues in these cases, as this court sees them, neither require nor permit a general factual inquiry, and this court makes no independent findings as to what transpired during those four days in May in the Kent community.

However, it is material to record that responsive to a request of the Mayor of Kent, Ohio's Governor James A. Rhodes on the evening of May 2, 1970, dispatched units of Ohio National Guardsmen to duty in Kent, Ohio to assist the local authorities. Apparently martial law was not declared. On the afternoon of May 4, 1970, confrontations involving students and Ohio National Guardsmen climaxed on Blanket Hill in the vicinity of Taylor Hall on the university campus. Ohio National Guardsmen shot and killed four students and wounded nine other students.

Three persons are indicted for offenses alleged to have happened on Friday, May 1, 1970. These offenses include malicious injury to property and riot, second degree. Ten persons are charged with offenses alleged to have happened on Saturday, May 2, 1970. These offenses include arson of uninhabited building; attempt to burn property; throwing stones at a fireman; assault and strike a fireman; interfering with a fireman at scene of fire; riot, first degree; and riot, second degree. One person is charged with one count of inciting to riot on Sunday, May 3, 1970. With reference to Monday, May 4, 1970, 16 persons are each charged with a single count of riot, second degree; and one person is charged with a single count of inciting to riot. None of the National Guardsmen is indicted for any offense.

Representative of the contentions of both complaints is this quote from the Hammond complaint:

The making of the indictments, together with the Special Grand Jury Report was a bad-faith use of the State's legal machinery with the purpose of inhibiting the exercise of free speech and has caused and will continue to cause, unless nullified and expunged, significant chilling effect on speech that cannot be avoided by future state court adjudication.

There are 20 plaintiffs in the Hammond case, six of whom are indicted and are charged with riot, second degree on May 4, 1970. One plaintiff is indicted on counts of arson of uninhabited dwelling and riot, first degree on May 2, 1970. Another plaintiff is charged with counts of riot, first degree; interference with fireman at scene of fire, and throwing stones at another, all offenses alleged to have occurred on May 2, 1970. The other indicted plaintiff in the Hammond case is charged with riot, second degree on May 1, 1970; with inciting to riot on May 3, 1970; and is charged with riot, first degree and interfering with fireman at the scene of fire on May 2, 1970.

Other plaintiffs in the Hammond case include a student of Kent State University, not indicted by the Grand Jury, who sues on behalf of himself and all other students of Kent State University; and 10 persons who describe themselves as "concerned members of the Kent State University community or elsewhere in the community of Portage County, Ohio * * *."

All plaintiffs in the Adamek case, 32 in number, are professors at Kent State University. The complaint charges that First, Fifth, Sixth, and Fourteenth Amendment rights are violated by the issuance of the Report. It stresses that First Amendment Rights (including academic freedom) have been jeopardized by the indictment of fellow plaintiff Professor Thomas Lough. His indictment charges him with inciting to riot on May 4, 1970.

Attorney General Paul W. Brown and his appointed Special Counsel, Robert L. Balyeat, Seabury H. Ford, and Perry G. Dickinson, are defendants in each case. They are sued individually and in their respective capacities as Attorney General of Ohio and Special Counsel to the Attorney General. Attorney General Brown appointed these Special Counsel to conduct the investigation called for by Governor Rhodes on August 3, 1970. Governor Rhodes directed Attorney General Brown to convene a Special Grand Jury in Portage County, Ohio.

In the Hammond case also sued are foreman Robert R. Hastings and 15 other members of the Special Grand Jury, and Lucy S. DeLeone, Clerk of the Common Pleas Court of Portage County. In the Adamek case, Robert W. Hastings, is sued individually and as a member of the Special Grand Jury and so are all others similarly situated.

On November 13, 1970, this court overruled a consolidated motion of the plaintiffs in both cases to convene a three-judge court to pass on the constitutionality of Ohio's anti-riot laws (Ohio Rev.Code ? 2923.52-54). As seen, these sections, adopted in Ohio in 1968, form the most frequent basis of the offenses charged in the indictments. In plaintiffs' motion it was claimed that these sections of law "on their face and as applied violate the Constitution of the United States and are, therefore, null and void." In denying the motion for a three-judge court this court concluded and determined that "there is no substantiality to the claim of unconstitutionality of the Ohio anti-riot law."

An evidentiary hearing on the remaining issues of the two actions, involving the request for permanent injunctive and declaratory relief, was held from November 23, 1970 through December 3, 1970. Following the submission of proposed findings of fact and conclusions of law, oral arguments were presented on January 5, 1971.

I.

In considering a case that petitions a federal district court to intervene in a state criminal case it is timely to first mark the permissible limits of federal intervention. The criminal jurisdiction of our country is apportioned between the coordinate federal and state judicial systems. Under Ohio law, state grand juries or state prosecutors have exclusive jurisdiction to charge (accuse) a person with violation of a state criminal law. Only a grand jury may indict (accuse) a person of a felony. A felony is any crime for which the sentence of incarceration may exceed one year. A state grand jury may also indict a person for a misdemeanor, a crime having a lesser sentence than a felony. An accused person may waive indictment and authorize a state prosecuting attorney to charge him by criminal information. A state common pleas court has exclusive jurisdiction to try a person charged with a felony. Comparably, persons may only be required to stand for trial for federal crimes amounting to felonies upon indictment by a federal grand jury. A federal grand jury may also indict (accuse) for a misdemeanor. A United States Attorney may prosecute by criminal information in misdemeanor cases or in felony cases when accusation by indictment is waived. United States district courts (federal trial courts) have exclusive jurisdiction to try persons accused of federal crimes.

The complaints of the plaintiffs in both actions are founded on 42 U.S.C. ? 1983 (1964) (deprivation of civil rights under color of state statute); and, therefore, this court has jurisdiction of these actions by virtue of 28 U.S.C. ? 1343(3) (4) (1957) (jurisdiction in civil rights cases). Jurisdiction under other sections is claimed, including 28 U.S.C. ?? 2201, 2202 (1958) (declaratory judgment). Abjuring damages the plaintiffs seek declaratory and injunctive relief under 42 U.S.C. ? 1983 (1964).

Title 42 U.S.C. ? 1983 (1964) is a frequent foundation for cases currently being brought in federal court. Enacted April 20, 1871, the Civil Rights Act of 1871, and its successors (now section 1983), soon will be a hundred years old. As here relevant this section provides:

Every person who, under color of any statute * * * of any State * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In applying section 1983, one must consider the effect of 28 U.S.C. ? 2283 (1948). Known as the Anti-Injunction Law, section 2283 and its predecessors have been in force since early in this country's history. Section 2283 sta...