Lieberman v. Marshall

• Decision Date: 28 May 1970
• Docket Number: No. 38787,38787
• Citation: 236 So.2d 120
• Parties: Jack LIEBERMAN et al., Appellants, v. J. Stanley MARSHALL, as Acting President of the Florida State University, a part of the University System of the State of Florida, Appellee.
• Court: Florida Supreme Court

Page 120

236 So.2d 120

Jack LIEBERMAN et al., Appellants, v. J. Stanley MARSHALL, as Acting President of the Florida State University, a part of the University System of the State of Florida, Appellee.

No. 38787.

Supreme Court of Florida.

May 28, 1970.

Rehearing Denied June 26, 1970.

Richard J. Wilson, and Margaret Kathleen Wright, Gainesville, for appellants.

Wilfred C. Varn, of Ervin, Pennington, Varn & Jacobs, Tallahassee, for appellee.

ADKINS, Justice.

This is an interlocutory appeal from an order denying a motion to dissolve a temporary injunction enjoining certain members of a Chapter of Students for a Democratic Society (SDS) from holding any meeting or rally in any buildings of the campus of Florida State University, a state supported institution, until further order of Court. The interlocutory appeal was first taken to the First District Court of Appeal, but that Court granted appellee's motion to transfer the cause to this Court because constitutional questions in the area of rights claimed by appellants under the First and Fourteenth Amendments to the Constitution of the United States and Sections Five and Nine of Article I, Declaration of Rights, Florida Constitution, F.S.A., are involved. It was alleged that the purpose of the rally was to sponsor a speaker. By virtue of this allegation, appellants' rights under Section Four, Article I, Declaration of Rights, Florida Constitution, are involved. In view of the fact that a final judgment would be directly appealable to this Court, we accept jurisdiction of the interlocutory appeal. Dade County v. Kelly, 149 So.2d 382 (Fla.App.1963).

At the outset, certain basic principles should be considered. The powers and responsibilities of The Board of Regents, a university president, or principal of a public school, are awesome and extensive. The administrator has wide discretion in dealing with the requirements of campus order and discipline, and with the time, place, and manner of extracurricular lectures. This Court will not ordinarily review the wisdom with which that discretion is exercised. But this Court will review the exercise of governmental power where there is a tenable claim that it has been exercised in a manner inconsistent with the Constitution. See Brooks v. Auburn University, 296 F.Supp. 188 (M.D.Ala.1969).

A college education is no longer a luxury for the wealthy, but is regarded as a necessity for most high school graduates. College students today, through the television, radio, and news media, are usually well-informed in national affairs and reliant. Unfortunately, many limit their interests to rights and privileges to the extent of ignoring their duties and responsibilities to our Great American Heritage. Be that as it may, the State cannot condition the granting of a college education, even though a privilege, upon the renunciation of constitutional rights. Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

The leaders of great universities are frequently required to make agonizing, hard decisions which may well affect the very existence of the university as a free institution. On one side the university president must consider what the Legislature may think; on the other, he must consider what the militant students may think. The long-term interests of the institution require the right decision, regardless of immediate consequences. So it is that the Constitution furnishes a straight, well-defined path for the preservation and continued improvement of our great educational institutions.

Under the United States or Florida Constitution, any college, university, or public school authority may enact rules and regulations denying a compus group access to the institution's buildings, as well as denying an invitation to a guest speaker requested by a campus group, if it reasonably appears that such group or the speaker would, in the course of the use of the building, advocate or attempt:

(1) Violent overthrow of the Government of the United States, the State of Florida, or any political subdivision thereof (2) Willful destruction or seizure of the institution's buildings or other property;

(3) Disruption or impairment, by force, of the institution's regularly scheduled classes or other educational functions;

(4) Physical harm, coercion, intimidation or other invasion of lawful rights of the institution's officials, faculty members or students; or

(5) Other campus disorder of violent nature.

Such rules and regulations meet the clear and present danger test, as they suppress only those activities which would result in serious substantive evil which the institution has the right to prevent. See Stacy v. Williams, 306 F.Supp. 963 (N.D.Miss.1969).

This case arose at the Florida State University in Tallahassee. J. Stanley Marshall, as Acting President of the University, secured an ex parte restraining order March 4, 1969, to prevent the alleged intended occupation that same evening, without permission of the University, of the Florida Room of the University Union. Under regulations of the Board of Regents of the University System of Florida, as well as Regulations of Florida State University, student organizations officially recognized by the Administration of the University may with permission use the university buildings for holding scheduled rallies and sponsoring speakers. The campus chapter of Students for a Democratic Society, SDS, was denied official recognition a few days previously by Acting President Marshall.

The President sought a court order forbidding use of the building for the purpose of holding a nonapproved rally or sponsoring the appearance of a speaker, which rally and speech he alleged were to be held for the sole purpose of causing a confrontation between the administration and SDS, which it was alleged would have resulted in disruption to the University and would have caused irreparable injury. The Circuit Court of Leon County enjoined occupation of campus buildings, but not use of campus grounds.

The injunctive order of the Court was served the evening of March 4, 1969 on defendants by law officers, in the Florida Room, after the occupation and rally already had begun. Although many students left the premises on reading of the Court order, a number refused to obey. Fifty-eight were arrested, and several were ordered by the Court to show cause why they should not be held in contempt.

Subsequently, the defendants moved to dismiss the injunctive complaint for insufficiency, and to dissolve the injunction forbidding use of campus buildings on grounds it violated their constitutional rights. At a hearing April 28, 1969, the trial judge refused both motions, stating his findings that the restraining order had been necessary, because the confrontation planned and staged by SDS would have created a risk of violence and would have unduly disrupted the University campus.

The issues raised and argued by defendants center on two primary questions:

First, was the injunction legally sufficient at the time it was initially issued?

Second, do the SDS members have a present constitutional right to use the Florida Room of the University Union regardless of University rules or decisions; restated, does denial of such use infringe on citizenship rights protected by the Federal or State Constitutions?

These questions will be discussed in order.

The temporary injunction was issued without notice to the defendants and without giving them an opportunity to be heard in opposition.

Rule 1.610(b), R.C.P., 31 F.S.A., contains the following:

'No temporary injunction shall be granted except after notice to the adverse party unless it is manifest from the allegations of a verified complaint or supporting affidavits that the injury will be done if an immediate remedy is not afforded and in such event the court may grant a temporary injunction until a hearing or further order of court.'

The rule also provides for bond, dispensable if the injunction is sought by a public agency. A state university is such an agency, and the trial judge had authority to issue the injunction without requiring bond.

Rule 1.610(b) rests on the rationale that courts should not intercede in the affairs of men except on a showing of necessity, where injury and damage are shown by proofs. Since orders are sustained by proofs, and proofs result from adversarial presentations, a court should never issue an ex parte order without notice to defendants and without a hearing, unless an immediate threat of irreparable injury exists, which forecloses opportunity to give reasonable notice and in which a subsequent remedy for damages or other relief would be inadequate.

To justify issuance of a restraining order without notice, it must appear that the time required to give notice of a hearing would actually permit the threatened injury to occur. Thursby v. Stewart, 103 Fla. 990, 138 So. 742 (1931); Godwin v. Phifer, 51 Fla. 441, 41 So. 597 (1906). In the present case, the ex parte order was secured when the threat of injury was immediate. The order was served on defendants after they actually had begun to commit the injury, which was occupation of the campus building. It clearly appears it would have been futile for the trial judge to attempt to give notice or schedule a hearing, since the injury already would have occurred. A preventive injunction should not be issued if the threatened injury already is complete. Drew Lumber Co. v. Union Inv. Co., 66 Fla. 382, 63 So. 836 (1913). The decision in the case Sub judice does not conflict with Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) in which an ex parte injunction without notice was issued on the same day the threatened injury, a meeting or rally, was planned, and the Supreme Court invalidated the injunction, because...