Handverger v. Harvill, 71-1557.
| Decision Date | 13 June 1973 |
| Docket Number | No. 71-1557.,71-1557. |
| Citation | 479 F.2d 513 |
| Parties | Richard A. HANDVERGER et al. Plaintiffs-Appellants, v. Richard A. HARVILL et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
W. Edward Morgan (argued), William Messing, of Messing & Hirsh, Tucson, Ariz., for plaintiffs-appellants.
Thomas Chandler (argued), of Chandler, Tullar, Udall & Richmond; Lesher & Scruggs, Tucson, Ariz., for defendants-appellees.
Before BARNES, DUNIWAY and TRASK, Circuit Judges.
OPINION
Plaintiffs brought this action in the district court under 42 U.S.C. § 1983 and 28 U.S.C. § 1343. The district court held for the defendants, and the plaintiffs appeal. We affirm.
The seven appellants claim that they suffered damages when they were prevented from holding a meeting styled a "Vietnam Commencement" on the grounds of the University of Arizona. Six of the appellants were students or professors at the university; one was on the faculty of another university and was to be a guest speaker at the "commencement". The appellees were officials of the university.
In early May of 1968, a reservation for May 29 was made on behalf of the Student Peace Association (SPA), a recognized campus group, for the senior ballroom located on the campus.1 The purpose of the reservation was to set aside a time and place for the "commencement." The "commencement" was to honor those draft-eligible men of the university who signed pledges not to serve in the armed forces until the United States was no longer involved militarily in Southeast Asia. Also to be honored were those persons, not eligible for the draft, who pledged their support to those pledging to refuse induction.2 Various speakers were to be featured, most of them from the university community. On about May 7, approximately 2,200 invitations to the "commencement" were mailed to senior and graduate students at the university. These invitations contained the statement, "please feel free to invite your parents, relatives, and friends."
At about this time appellee Johnson, vice president of the university in charge of community relations, learned of the planned activity. After consultation with appellee Harvill, president of the university, Johnson cancelled the reservation. It was felt that the reservation was improperly made, that use of the term "commencement" might mislead the public to the conclusion that the university was sponsoring the event, that the activity might touch off violence, and that the event probably involved illegal activity. Later, Johnson met with leaders of the SPA. They said that they would be willing to change the name of the event from "commencement" to "convocation," and would be willing to limit the meeting to faculty and students. However, Johnson refused to change his mind. The court found that Johnson acted in good faith.
The SPA then tried to arrange to hold the "commencement" off campus. A local church agreed to make its facilities available. This offer was withdrawn just a few days before the event was to be held.
On the morning of May 28, 1968, appellant Axler, a leader of the SPA, telephoned President Harvill to see whether the "commencement" could be held on campus after all. Harvill refused, for the reasons discussed above. Later that same morning Axler had delivered to Harvill a letter informing him that the SPA intended to use the campus for the ceremony, whether permission was granted or not. Harvill got in touch with appellee Hall, a lawyer and advisor to the Board of Regents and administration, and showed him the Axler letter. Harvill told Hall that if he, Harvill, could legally stop the "commencement" from taking place on university property, he wanted to do so. He asked Hall to find out if this could be accomplished. Hall talked with various university officals, and then talked again with Harvill. He told Harvill that in his opinion the activity would likely violate federal law,3 and that he was going to discuss the matter with the office of the Attorney General of the State of Arizona. The Attorney General is by statute legal advisor to the University of Arizona Board of Regents and administration. Hall talked with the Attorney General's office, and was told to take the matter up with William Kimble and Robert Lesher, attorneys who were special assistants to the Attorney General.
That afternoon a meeting was held involving Kimble, Lesher, Johnson, Hall, and other university officials. Harvill was not present. At the meeting various manners of responding to the threatened "commencement" were discussed, including the use of a temporary restraining order. Another meeting was held the next morning, May 29, involving substantially the same group. By the end of that meeting a final decision had been made to seek a restraining order. The court found that this decision was made independently by Lesher and Kimble on the basis of the information that they had been given. The basis of the decision was their opinion that the "commencement" would involve illegal activity. The decision had the approval of the administration officials present. A Superior Court judge issued a temporary restraining order at about 1:30 P.M. on May 29, in response to a complaint drawn up by Kimble and Lesher. The judge handled the request on an ex parte basis.
When the appellants and others arrived at the campus that evening, they were served with a temporary restraining order restraining them from entering the campus. The group did not try to enter the campus, but instead assembled at an area near a student union building, which they apparently believed was not university property. There the group attempted to begin the ceremony, but were informed that they were on university property and were asked to leave. Subsequently the group, by then substantially reduced in number, assembled at a public park where the "commencement" was held. There were no incidents of violence.
Appellants argue that the action of the university officials deprive them of their constitutional rights of free speech, association, and assembly. Appellees contend, inter alia, that they should not be held liable because their actions were taken in good faith. We agree.
The activity which the appellants were hoping to carry out arguably involved illegal activity. The invitation to the "commencement" stated as much. In relevant part the invitation reads:
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