Krause v. Rhodes, No. 71-1622 to 71-1624.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: WEICK and CELEBREZZE, Circuit , and O'SULLIVAN, Senior Circuit
• Citation: 471 F.2d 430
• Docket Number: No. 71-1622 to 71-1624.
• Decision Date: 17 November 1972
• Parties: Arthur KRAUSE, Administrator of the Estate of Allison Krause, Deceased, Plaintiff-Appellant, v. James RHODES, Governor of the State of Ohio, et al., Defendants-Appellees. Elaine B. MILLER, Administratrix of the Estate of Jeffrey Glenn Miller, Deceased, Plaintiff-Appellant, v. James RHODES, Individually and as Governor of the State of Ohio, et al., Defendants-Appellees. Sarah SCHEUER, Administratrix of the Estate of Sandra Lee Scheuer, Deceased, Plaintiff-Appellant, v. James RHODES, Governor of the State of Ohio, et al., Defendants-Appellees.

471 F.2d 430 (1972)

Arthur KRAUSE, Administrator of the Estate of Allison Krause, Deceased, Plaintiff-Appellant,
v.
James RHODES, Governor of the State of Ohio, et al., Defendants-Appellees.
Elaine B. MILLER, Administratrix of the Estate of Jeffrey Glenn Miller, Deceased, Plaintiff-Appellant,
v.
James RHODES, Individually and as Governor of the State of Ohio, et al., Defendants-Appellees.
Sarah SCHEUER, Administratrix of the Estate of Sandra Lee Scheuer, Deceased, Plaintiff-Appellant,
v.
James RHODES, Governor of the State of Ohio, et al., Defendants-Appellees.

Nos. 71-1622 to 71-1624.

United States Court of Appeals, Sixth Circuit.

November 17, 1972.

471 F.2d 431

COPYRIGHT MATERIAL OMITTED

471 F.2d 432

Steven A. Sindell, Sindell, Sindell, Bourne, Markus, Stern & Spero, Cleveland, Ohio, Joseph Kelner, New York City, Michael E. Geltner, American Civil Liberties Union of Ohio, Columbus, Ohio, for appellants; Melvin L. Wulf, Sanford Jay Rosen, New York City, Nicholas Waranoff, American Civil Liberties Union Foundation, Stanley K. Laughlin, Jr., Michael E. Geltner, American Civil Liberties Union of Ohio, Columbus, Ohio, Niki Z. Schwartz, Eugene S. Bayer, American Civil Liberties Union, Cleveland, Ohio, Michael S. Harshman, American Civil Liberties Union, Youngstown, Ohio, Nelson G. Karl, American Civil Liberties Union of Ohio, Walter S. Haffner, American Civil Liberties Union of Ohio, Cleveland, Ohio, on brief

Charles E. Brown and Robert F. Howarth, Jr., Crabbe, Newlon, Potts, Schmidt, Brown & Jones, Columbus, Ohio, for appellees; R. Brooke Alloway, Columbus, Ohio, C. D. Lambros, Cleveland, Ohio, on brief.

Before WEICK and CELEBREZZE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WEICK, Circuit Judge.

The Governor of Ohio called out the Ohio National Guard to suppress a riot in the City of Kent, Ohio, and on the

471 F.2d 433

campus of Kent State University. Two proclamations of the Governor with respect thereto are appended to this opinion. They were attached to motions to dismiss filed by certain defendants in the District Court. During the riot each of the plaintiffs' decedents, who were students at Kent State University, allegedly were shot and killed by one of the unnamed and unknown members of the National Guard. Their personal representatives filed separate actions in the District Court to recover a total of $11,000,000—damages against the Governor of Ohio, the Adjutant General, and the Assistant Adjutant General. Two of the suits named four officers and various unknown and unnamed officers and enlisted men of the National Guard. The two suits even named the President of Kent State University as a defendant, in one of which suits it was alleged that he recklessly, wilfully and wantonly omitted to take any action to control the troops on the campus, or to decrease the risk of injury to the students, and in the other suit he was charged with a conspiracy. The suits were brought under the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C.A. §§ 1331, 1334, and also under the wrongful death statutes of Ohio, on the theory of pendent jurisdiction

The complaints alleged generally and in conclusory terms that the defendants conspired to call out the National Guard and were guilty of wanton, wilful and negligent conduct when they knew or should have known that there was no cause or insufficient cause therefor; that the troops were not properly trained in the correct and reasonable use of weapons to suppress civil disorders; and that the troops were permitted to be armed with loaded weapons. It is alleged that as a result the decedents, who allegedly were not participating in any way in a riot and were not negligent in any manner, were shot and killed.

The motions to dismiss were filed by the defendants Rhodes, Del Corso, Canterbury, Jones, Martin and Srp. These defendants were the only defendants who were served with process in the cases in the District Court, or who filed motions in the cases.

The theory of the motions to dismiss was that these suits, although nominally against the Chief Executive and officers of the State, in substance and effect were against the State of Ohio since they directly and vitally affected the rights and interests of the State in the performance of its highest function, namely, the suppression of riots or insurrection and the protection of the public.

It was on this theory and that of executive immunity that the District Court dismissed the actions and the plaintiffs have appealed.¹ We affirm.

Amendment XI of the Constitution of the United States provides:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . ."

471 F.2d 434

In Ex Parte New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057 (1921), the Supreme Court held:

"That a state may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a state without consent given; not one brought by citizens of another state, or by citizens or subjects of a foreign state, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the amendment is but an exemplification."

The Court made it clear that the applicability of the Eleventh Amendment "is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record." Id. at 500, 41 S.Ct. at 590.

The general rule was stated in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), as follows:

"The general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,\' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947), or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.\' Larson v. Domestic & Foreign Corp., supra, 337 U.S. at 704, 69 S.Ct. 1457, at 1468, 93 L.Ed. 1628; Ex parte New York, 256 U.S. 490, 502 41 S.Ct. 588, 591, 65 L.Ed. 1057 (1921)."

Moyer v. Peabody, 212 U.S. 78, 29 S. Ct. 235, 53 L.Ed. 410 (1909), like the present case, was an action brought under the Civil Rights Act to recover damages against the former Governor of Colorado, the former Adjutant General of the National Guard of the same state, and a Captain of a company of the National Guard, for an imprisonment of plaintiff by them while in office. In upholding the dismissal of the complaint on demurrer, Justice Holmes stated:

"In such a situation we must assume that he had a right, under the state Constitution and laws, to call out troops, as was held by the supreme court of the state. The Constitution is supplemented by an act providing that `when an invasion of or insurrection in the state is made or threatened, the governor shall order the national guard to repel or suppress the same.\' Laws of 1897, chap. 63, art. 7, § 2, p. 204. That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office, on the ground that he had not reasonable ground for his belief. If we suppose a governor with a very long term of office, it may be that a case could be imagined in which the length of the imprisonment would raise a different question. But there is nothing in the duration of the plaintiff\'s detention or in the allegations of the complaint that would warrant submitting the judgment of the governor to revision by a jury. It is not alleged that his judgment was not honest, if that be material, or that the plaintiff was detained after fears of the insurrection were at an end." (pp. 84-85, 29 S.Ct. pp. 236-237)

471 F.2d 435

He further said:

"When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L.Ed. 327, 328. This was admitted with regard to killing men in the actual clash of arms; and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm. As no one would deny that there was immunity for ordering a company to fire upon a mob in insurrection, and that a state law authorizing the governor to deprive citizens of life under such circumstances was consistent with the 14th Amendment, we are of opinion that the same is true of a law authorizing by implication what was done in this case. As we have said already, it is unnecessary to consider whether there are other reasons why the circuit court was right in its conclusion. It is enough that, in our opinion, the declaration does not disclose a `suit authorized by law to be brought to redress the deprivation of any right secured by the Constitution of the United States.\' See Dow v. Johnson, 100 U.S. 158, 25 L.Ed. 632." (Id. at 85-86, 29 S.Ct. at 251).

In Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932), Chief Justice...