A Quaker Action Group v. Hickel

• Decision Date: 10 February 1970
• Docket Number: No. 23625.,23625.
• Citation: 429 F.2d 185,139 US App. DC 1
• Parties: A QUAKER ACTION GROUP et al., Appellants v. Walter J. HICKEL, Secretary of Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

139 US App. DC 1, 429 F.2d 185 (1970)

A QUAKER ACTION GROUP et al., Appellants v. Walter J. HICKEL, Secretary of Interior, et al.

No. 23625.

United States Court of Appeals, District of Columbia Circuit.

Argued on Motions November 13, 1969.

Decided February 10, 1970.

Motion for Reconsideration Denied March 6, 1970.

Messrs. Joseph L. Rauh, Jr., James F. Fitzpatrick, and William A. Dobrovir, Washington, D. C., entered appearances on behalf of appellants. Messrs. Ralph J. Temple and Lawrence Speiser, Washington, D. C., were also on the pleadings for appellants.

Mr. Thomas A. Flannery, U. S. Atty., and Messrs. John A. Terry, Joseph M. Hannon and Gil Zimmerman, Asst. U. S. Attys., entered appearances on behalf of appellees.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

ORDER

PER CURIAM.

This cause came on for consideration on appellants' motion for summary reversal or for stay pending appeal, and on appellees' motion for summary affirmance, and the Court heard argument of counsel. On consideration of the foregoing, it is

ORDERED by the Court that the order of the District Court entered on November 6, 1969, appealed from herein, is reversed, and this case is remanded to the District Court with directions that said Court proceed to trial on an expedited basis, and it is

FURTHER ORDERED by the Court that the preliminary injunction entered in the District Court on April 26, 1969, as modified by this Court's opinion of June 24, 1969, 137 U.S.App.D.C. 176, 421 F.2d 1111 shall remain in effect pending conclusion of the trial in the District Court or until further order of this Court.

PER CURIAM:

This case involves an action instituted by several citizens groups seeking declaratory judgment that certain regulations of the Department of the Interior restricting picketing in front of the White House to 100 persons and in Lafayette Square to 500 persons are unconstitutional.

When this action¹ was previously before the court it approved a temporary injunction, pendente lite, that established a notice system enabling the government to avoid proposed picketing threatening the President's safety. A Quaker Action Group v. Hickel, 137 U. S.App.D.C. 176, 421 F.2d 1111. On the merits the District Court (June 24, 1969) granted the government's motion for summary judgment. Appellants seek summary reversal, the government a summary affirmance.

The District Court erred in adjudicating the issues in summary fashion. Summary judgment was granted partially on the basis of affidavits of Secret Service officials, submitted by the government, which enumerated factors pertaining to the safety of the President and integrity of the White House, which factors they believe justify imposing the restrictions in question. Thus at least one issue in this case is the perennial question of the reasonableness and validity of a regulation which impinges on the exercise of constitutionally protected rights. Second, it would appear that the issue raised by the allegations of discriminatory administration of the regulations is still a viable one. We are guided in highlighting the second issue by the findings of the District Court in its earlier decision to grant a preliminary injunction to the appellant group before us. At that time the District Court found that the permit system had been subject to maladministration. Those findings were not negatived or superseded by any findings in the disposition on the merits.

Both of these issues are deserving of further exploration by the full processes of a trial on the merits, not simply by presentation of untested affiants' statements and lawyers' arguments. In this way, the issues may be clarified, substantiated, and resolved after having been subjected to the rigors of an evidentiary hearing. Nor is there any reason why this process of illuminating facts and issues should not go forward in an accelerated manner in the District Court. We further point out that this case is being returned to the District Court for a complete determination on the merits, for treatment as a res nova. Nothing this court has said or is saying should be taken as directed toward a decision of the issues on their merits, since all prior decisions have been directed at resolving the issue of preliminary injunctive relief only.

This case cannot be disposed of by reference to a legislative authority to prohibit all picketing in front of the White House. For even assuming such legislation would be consistent with the Constitution, questions would arise whether that prohibiting authority has been delegated to the Interior Department, and further, whether it could be exercised by internal administrative action of subordinate officials rather than regulations duly exercised by the head of the cognizant department or agency. Moreover, a legislative authority to prohibit all picketing would not comprehend the power to authorize an administrative permit system that tolerated picketing for favored groups and denied it to others; obviously serious constitutional questions are involved in a regulation according such administrative latitude, questions that are not eased by the findings of discriminatory application previously made in this action by the District Court. The authority to prohibit all picketing does not establish as a corollary the authority to establish unreasonable rules for determining which picketing will be permitted and which denied. It may be that the 100-500 criteria evolved by subordinate officials will be found to be reasonable and authorized, but that is to be determined after a hearing at which evidence, that may be tested on cross-examination, establishes the reasons for the regulatory provisions and the feasibility of others that provide satisfactory safeguards against violence with less interference with the right of peaceful protest.

The District Court expressly found that the 100-500 criterion was put forward in 1967 by the regional director of the National Park Service — not in a regulation or even public notice, but in an internal memorandum to subordinate officials administering the permit system — as a means of achieving traffic control and avoidance of damage to park greensward and shrubbery. We may assume that the consideration of need to avoid danger to officials, put forward in 1969, may be taken into account by the Park Service as a reason for continuing the standard. But that, too, must be subject to evidentiary testing, and cannot be taken on affidavits alone as a conclusive ipse dixit.

In reversing, we are nullifying a decision which by summary judgment dismissed the action and dissolved the modified preliminary injunction then in effect. This process leaves a void in the critical area of providing security in the vicinity of the White House. It is obviously necessary that some interim rule be promulgated. We think that the limited findings as to the misuse of the permit system warrants reinstitution of the notice system delineated in the modified preliminary injunction. We choose the notice system not only because of the suspicion cast upon the earlier permit system, but also because the government has not contended that the notice system is objectionable because of any of its administrative aspects, such as length of time required.² So far as we are now advised the notice system satisfies its contemplated objective of providing the government sufficient opportunity, at least during an interim period, to take preventative measures should the government feel that safety of the President is endangered. We reverse and remand with directions to proceed to trial on an expedited basis.

So ordered.

MacKINNON, Circuit Judge (dissenting):

The rising crescendo of national militancy and confrontation, with isolated instances of the preachment of assassination and violent revolution, brings this case to us because of the increasing extent to which the White House and Washington, D.C. have become the objective of such action. Such activities always contain the threat of political violence. The National Commission on the Causes and Prevention of Violence headed by Dr. Milton S. Eisenhower found in October, 1969 that

"The present decade, though by no means the worst in American history, has witnessed disturbingly high levels of assassination and political violence. * * * In comparison to the other nations of the world, the level of assassination in the United States is high."

To deal with a small segment of this threat, on August 10, 1967, limits on the size of gatherings were administratively established for the north sidewalk of the White House at 100 and for Lafayette Square across the street to the north at 500. This was done in exercise of the obligation imposed by applicable regulations¹ to issue offical permits upon proper application for public gatherings unless, inter alia,

(ii) The event will present a clear and present danger to the public health or safety.

(iii) The event is of such nature or duration that it cannot reasonably be accommodated in the particular area applied for. (36 C.F.R. § 50.19(c)(2) (1968)).

In addition to the regulation, statutory obligations are also imposed by Congress upon the officials involved to protect the White House area and its occupants. See footnote 3, infra. The Superintendent of the National Capital Region, National Park Service, was designated as the issuing authority for permits. The regulations had previously set limits for the size of demonstrations at certain other public places and parks in Washington, D.C., which limits varied depending on available facilities and the size and character of the area.

Appellants' challenge here is twofold: First, they contend that a number of permit applications were not properly handled by the Superintendent, and Secondly, they contend the 100-500 limitations are unconstitutional. Both points are grounded in their rights to free speech, assembly and petition.

As to their first point, the stated...