Hammond v. Brown

• Decision Date: 22 October 1971
• Docket Number: No. 71-1278.,71-1278.
• Citation: 450 F.2d 480
• Parties: HAMMOND et al., Plaintiffs-Appellants, v. BROWN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

450 F.2d 480 (1971)

HAMMOND et al., Plaintiffs-Appellants, v. BROWN et al., Defendants-Appellees.

No. 71-1278.

United States Court of Appeals, Sixth Circuit.

October 22, 1971.

David Scribner, New York City, for plaintiffs-appellants; Benjamin B. Sheerer, Cleveland, Ohio, on brief.

Thomas V. Martin, Asst. Atty. Gen., Columbus, Ohio, and Seabury H. Ford, Ravenna, Ohio, for defendants-appellees; William J. Brown, Atty. Gen. of Ohio, Frank Josselson, Asst. Atty. Gen., Columbus, Ohio, on brief for William J. Brown.

Before PHILLIPS, Chief Judge, and McCREE and BROOKS, Circuit Judges.

PER CURIAM.

This is an appeal and cross-appeal from the decision of District Judge William K. Thomas reported at 323 F.Supp. 326. The case involves some 30 indictments against 25 persons returned by the special grand jury which was convened to investigate the tragedy that occurred at Kent State University, Kent, Ohio, on the weekend of May 1-4, 1970.¹ The indictments involve 43 charged offenses, all arising out of incidents at the university. The charged offenses are summarized at 323 F.Supp. 331.

The special grand jury also filed a special report.

The District Court ordered that all copies of the special report of the grand jury, with the exception of a few designated pages, be physically expunged and destroyed by the clerk of the courts of Portage County, Ohio.

The District Court refused to grant an injunction against the prosecution of the 30 indictments or to request the convening of a three-judge court to determine the constitutionality of the sections of the Ohio Riot Act under which some of the plaintiffs have been indicted. Ohio Rev.Code §§ 2923.52-2923.54. Central to this case are the District Court's conclusions

"* * * that Attorney General Brown and his Special Counsel were mistaken in relying on this broad custom of issuing grand jury reports when the Special Grand Jury Report violates specific law in and out of Ohio. Nevertheless, this court has weighed the sincerity and candor of Attorney General Brown\'s testimony, the forthright statements of Special Counsel Balyeat, and the frank concessions of Special Counsel Ford. * * * Their collective error of law was committed in a good-faith misconception of the controlling law applicable to a grand jury report of the type and content of the Special Grand Jury Report. Bad faith in the sense of deliberate willful perversion of the law to gain an improper purpose is not directly shown and it will not be inferred.

* * * * * *

"After considering all aspects of the claim of bad faith prosecution of the indictments amounting to a deprivation of the right to fair trial, it is determined and declared, on this record and at this pretrial stage of the State prosecutions, that a deprivation of the right to a fair trial has not been shown. Moreover * * * there is no showing of facts that clearly prove an irreparable and immediate injury to the right to a fair trial." Hammond v. Brown, 323 F.Supp. 326, 356 (N.D.Ohio 1971).

After a review of the record and consideration of the briefs and oral arguments of the parties, we have concluded that the court's findings of fact are not clearly erroneous. Fed.R.Civ.P. 52(a).

Since appellants have failed to establish that the indictments were issued in bad faith with the purpose and effect of chilling protected expression, or that they will suffer great and immediate irreparable harm from the prosecution of the indictment, the injury that appellants face "is solely `that incidental to every criminal proceeding brought lawfully and in good faith,' * * * and therefore * * * they are not entitled to equitable relief `even if such statutes be unconstitutional.'" Younger v. Harris, 401 U.S. 37, 49, 91 S.Ct. 746, 753, 27 L.Ed.2d 669 (1971); cf. Honey v. Goodman, 432 F.2d 333 (6th Cir. 1970). This is true even if the statutes should be determined to be unconstitutionally vague or overbroad as alleged in the complaint. "The mere possibility of erroneous initial application of constitutional standards" does not in this case, "amount to the irreparable injury necessary to justify a disruption of orderly state proceedings." Dombrowski v. Pfister, 380 U.S. 479, 484-485, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22. Accordingly, since no injunction could issue in this case, no three-judge court need be convened and we need not review the District Court's refusal to...