Jeannette Rankin Brigade v. Chief of the Capitol Police, 21566.

Citation421 F.2d 1090,137 US App. DC 155
Decision Date20 June 1969
Docket NumberNo. 21566.,21566.
PartiesJEANNETTE RANKIN BRIGADE et al., Appellants, v. CHIEF OF THE CAPITOL POLICE et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Miss Harriet Van Tassel, Newark, N. J., with whom Messrs. Joseph Forer and William M. Kunstler, New York City, were on the brief, for appellants.

Mr. Alan S. Rosenthal, Attorney, Department of Justice, with whom Asst. Atty. Gen. Edwin L. Weisl, Jr., at the time the record was filed, Messrs. David G. Bress, U. S. Atty. at the time the record was filed, and Ralph A. Fine, Attorney, Department of Justice, were on the brief, for appellees. Messrs. Frank Q. Nebeker, Asst. U. S. Atty. at the time the record was filed, Joseph M. Hannon and Gil Zimmerman, Asst. U. S. Attys., and Morton Hollander, Attorney, Department of Justice, also entered appearances for appellees.

Messrs. Richard Shlakman and Lawrence Speiser, Washington, D. C., filed a brief on behalf of American Civil Liberties Union and National Capital Area Civil Liberties Defense and Education Fund, as amici curiae, urging reversal.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and BURGER,* Circuit Judge.

FAHY, Senior Circuit Judge:

The appellant Brigade was an ad hoc group of some 5000 ladies who, together with 58 plaintiffs as individuals, gathered in Washington January 15, 1968, the opening day of Congress, to march in a body from Union Station to the Capitol, and there to assemble across the East Front Plaza. This demonstration was to be in protest against the country's involvement in Vietnam. On January 2, 1968, the Chief of the Capitol Police, an appellee, had advised their representative that to march in this manner was prohibited by 40 U.S.C. § 193g (9 D.C. Code § 124), set forth in the margin.1 The ladies were also advised, as hereinafter set forth more fully, how they might proceed without interference. This was unacceptable. They accordingly filed suit in the District Court to enjoin appellees, including the Chief of the Capitol Police, from enforcing Section 193g against them and members of their class, as he threatened to do. They alleged that Section 193g was repugnant to the First Amendment "right of the people peaceably to assemble, and to petition the Government for a redress of grievances." They moved for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2282 and 2284, and also requested a judgment declaring 40 U.S.C. § 193a et seq. (9 D.C.Code § 118 et seq. See note 1, supra.) to be unconstitutional. The District Judge, deeming the constitutional question to be insubstantial, denied the motion for a three-judge court. In the same order he also denied all injunctive relief and dismissed the complaint. The present appeal is from his order.

Appellants were permitted to march to the rear of the Capitol at the foot of the hill there. Miss Rankin, their leader, and a 15-woman delegation, presented their petitions to the Speaker of the House and to the Majority Leader of the Senate.2

After the demonstration and presentations were made as permitted the Brigade disbanded, with announcement of the intention of the ladies to return to their communities "to mobilize women on all levels to exercise their political power to reshape American society."

At oral argument on appeal counsel for appellants abandoned their request for present injunctive relief, represented to the court that no particular parade was planned, and urged this court to declare Section 193g unconstitutional on its face. Due to the position thus stated, counsel contends a three-judge District Court need not be convened. She stated her position to be, however, that the allegation of the complaint that appellants intend to return for demonstration purposes individually and as an organization is to be taken as true, and that should it be necessary an injunction based on this court's declaration would then be sought. Appellees contend that since the Brigade has dispersed and neither it nor any individual appellant has any present intention of taking any step the statute would inhibit, the case has become moot. They also urge that if the case is not moot then dismissal of the complaint by the single District Judge should be affirmed since the constitutional question is insubstantial, and therefore, the motion for a three-judge court was properly denied.

We hold (1) that the case is not to be dismissed by this court as moot; (2) that the constitutional question is not insubstantial; and (3) that a three-judge District Court should have been convened and should now be convened to dispose of the several facets of the case hereinafter outlined, as they might appear at the hearing on the remand.

1. Firstly as to mootness. While the events of January 15, 1968, when the Brigade assembled here, have long since ended appellants have been denied, by reason of the challenged statute, rights of assembly and petition in a manner they claim the Constitution protected. The statute as enforced continues to be a bar to assertion of those rights, which the complaint alleges will be reasserted, and at argument counsel for appellants stated that injunctive relief would then be sought again if necessary. Should appellants seek to resume exercise of the claimed rights the availability of timely judicial action to avoid interference cannot be predicted. The rights asserted, imbedded in the Constitution, are of a continuing character, and the Vietnam problem remains. As in Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, the questions involved are continuing and "their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review * * *." The rights of peaceable assembly and petition at the seat of government have more than ordinary significance. The history of enforcement of the challenged statute, with sound reason to view the controversy initiated by appellants to be of a continuous character, persuades us on the present record that the justiciable character it originally assumed has not dissolved. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1; Carroll v. President and Commissioners of Princess Anne County, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325. On the remand, however, which we shall order for reasons later to be stated, we do not foreclose the issue of mootness from consideration by the District Court as the situation may then appear.

2. Since we do not dispose of the case as moot we have the question whether it is within the jurisdiction of a three-judge court convened under 28 U.S.C. § 2284. Insofar as this depends upon the substantiality of the constitutional question we think the case was one for a three-judge court. The broad sweep of Section 193g, and the absence of more definite legislative guidelines to govern its application, raise not insubstantial questions whether the First Amendment rights asserted were invalidly infringed by the invocation against appellants of that section of the statute. Carroll v. President and Commissioners of Princess Anne County, supra; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Cox v. Louisiana, 379 U.S. 536, 559, 85 S.Ct. 453, 476, 13 L.Ed.2d 471, 481; Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L.Ed.2d 149. Dismissal of the complaint by a single District Judge accordingly was inconsistent with 28 U.S.C. § 2282. The operation of an Act of Congress as repugnant to the Constitution was sought to be enjoined and the constitutional challenge was not insubstantial.3

3. The question remains, however, whether counsel's position stated at argument of the appeal, that only a declaratory judgment at the hands of this court was sought, removed the case from the embrace of Section 2282, notwithstanding the constitutional challenge continues. This requires consideration of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. The case was an action by Mendoza-Martinez (1) for a declaratory judgment firstly that he was a citizen, secondly that Section 401(j) of the Nationality Act of 1940, 58 Stat. 746 (1944), under which the Government claimed his citizenship had been lost, was unconstitutional, and (2) for voiding of all orders of deportation directed against plaintiff. Section 401(j) provided that one who remained outside the United States to avoid military service thereby lost his American citizenship. Plaintiff had been found to be factually within this provision. For this reason the Government had ordered him deported as an alien. A single District Judge, however, held Section 401(j) unconstitutional. When the case reached the Supreme Court it was considered as a threshold question whether the proceedings should have been heard by a three-judge court convened pursuant to 28 U.S.C. § 2282. The Court answered in the negative. It pointed out that the original complaint asked for no injunctive relief, and none was granted. An amended complaint, which raised an issue of collateral estoppel, did include a prayer that the court enjoin and restrain defendants from enforcing deportation orders against plaintiff; but the Court thought it clear from the stipulation which governed the course of the trial that the issues were framed so as not to contemplate any injunctive relief. The relief granted was a declaration that the challenged section was unconstitutional on its face and as applied to the plaintiff, and that he was a national and citizen of the United States. The Court stated:

Thus, despite the amendment to Mendoza-Martinez\' complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401(j) was at issue, § 2282 was not
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