Sellers v. Regents of University of California

• Decision Date: 17 September 1970
• Docket Number: No. 23581.,23581.
• Citation: 432 F.2d 493
• Parties: Charles SELLERS, Richard Strohman and Bruce Kirmmse, individually and as members of the Campus Draft Opposition, on behalf of themselves and others similarly situated, Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

432 F.2d 493 (1970)

Charles SELLERS, Richard Strohman and Bruce Kirmmse, individually and as members of the Campus Draft Opposition, on behalf of themselves and others similarly situated, Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, a corporation, Appellee.

No. 23581.

United States Court of Appeals, Ninth Circuit.

September 17, 1970.

COPYRIGHT MATERIAL OMITTED

Paul N. Halvonik (argued), Marshall W. Krause, A.C.L.U., San Francisco, Cal., for appellants.

Donald L. Reidhaar (argued), Thomas J. Cunningham, Wm. H. McKenzie, Berkeley, Cal., for appellee.

Jan Vtter, Albert M. Bendich, Berkeley, Cal., amicus curiae.

Before KILKENNY and TRASK, Circuit Judges, and FERGUSON, District Judge.^*

KILKENNY, Circuit Judge:

Appellants appeal from an order of the district court dismissing their complaint. Appellee is a corporation authorized, formed and existing under the Constitution of the State of California.¹ We treat the dismissal as a summary judgment under Rule 56, FRCivP.

The facts alleged in appellants' complaint, amended complaint and supporting affidavits are essentially undisputed. Appellants are members of a campus organization of the University of California, known as Campus Draft Opposition (CDO). On February 26, 1968, they applied, through proper channels, for the use of the GREEK THEATRE, a building on the Berkeley campus, for the purpose of holding an assembly on May 17, 1968. The proposed program was entitled "Vietnam Commencement," and was initiated for the purpose of honoring young men who had taken a pledge not to serve in the armed forces during the Vietnam conflict. On March 4, 1968, an authorized officer of the University informed appellants that the proposed use of the building had been approved subject to three conditions: (1) that the use comply with the established requirements; (2) that appellants make clear through their publicity that the event was not sponsored or approved by the University; and (3) that the appellants' use of the facility would not be illegal.

Concerned with the legality of the proposed assembly, the officials of the University desired a formal opinion and submitted the problem to the general counsel of the appellee. He was of the opinion that the proposed use of the building would be in violation of 50 U.S.C. App. § 462(a),² and he so advised the University officials in charge. Likewise, it was the opinion of the general counsel that the proposed function would be in conflict with appellee's resolution of October 20, 1967, which provides:

"University facilities shall not be used for the purpose of organizing or carrying out unlawful activity."

Subsequently, appellants submitted another application in which they assured the authorities that the proposed event would avoid mimicking the official University commencement and would be publicized in such a manner so as to make clear that it was not a University sponsored function. This application contained the following language: "Through our registration form, in our continuing daily activity on campus, and in formulating our plans for the Vietnam Commencement, we have repeatedly demonstrated our intention not to act outside the law."

The second application was submitted to the general counsel who reiterated his opinion that the proposed event would violate the law.³

The Chancellor, acting on the advice of the general counsel, denied appellants the use of the theatre. Appellants appealed to appellee. Acting on the opinion of its general counsel, appellee affirmed the decision of the Chancellor.

Appellants, on May 9, 1968, filed a complaint in the lower court seeking an injunction, declaratory judgment and damages. They alleged that the action of appellee abridged their constitutional rights to freedom of speech and assembly and equal protection of the laws. On May 16th, a district judge denied a preliminary injunction on the ground that appellants failed to show either that irreparable harm was threatened or that appellee's action was not reasonably justified by the valid interest of the University in maintaining order and decorum on its campus.

To forestall mootness, appellants then filed an amended complaint alleging that they would continue their activities as members of the CDO and that appellee would continue to rely upon the resolution of October 20, 1967, and 50 U.S.C. App. § 462(a), to deny them full freedom of speech and assembly. Additionally, they allege that the resolution was unconstitutional in that it was overbroad, vague and failed to provide adequate procedural safeguards for the protection of First Amendment rights. They also alleged that appellee acted unreasonably in denying them the use of the Greek Theatre. In this complaint, appellants sought the convention of a three-judge court, an injunction against the enforcement of the resolution and § 462(a) and a declaratory judgment that the resolution and the statute were unconstitutional on their face, or as applied. Damages were sought under the provisions of 42 U.S.C. § 1983.

After affidavits had been submitted by both sides and appellants had declined the opportunity to further amend their complaint, a single district judge dismissed the complaint pursuant to appellee's motion. Our jurisdiction to hear the appeal is not questioned. Wilson v. City of Port Lavaca, 391 U.S. 352, 88 S.Ct. 1743, 20 L.Ed.2d 636 (1968); Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865 (1967).

Treating the dismissal of the district court as a summary judgment under Rule 56, FRCivP, we affirm the judgment, although not necessarily on the grounds on which the lower court relied. This is our prerogative. Jaffke v. Dunham, Trustee, 352 U.S. 280, 281, 77 S.Ct. 307, 1 L.Ed.2d 314 (1957); M.O.S. Corp. v. John I. Haas Co., 375 F.2d 614, 617 (9th Cir. 1967); Rizal Commercial Banking v. Putnam, 429 F.2d 1112 (9th Cir., July 10, 1970).

Presented for decision are two basic issues: (1) did the lower court err in failing to convene a three-judge court to consider the constitutionality of that portion of 50 U.S.C. App. § 462(a) which prohibits the counseling, aiding or abetting of another to refuse registration or service in the Armed Forces and, (2) did the lower court err in failing to convene a three-judge court to consider the constitutionality of the resolution promulgated by appellee.

(1) 28 U.S.C. § 2282 prohibits an injunction restraining the enforcement of an Act of Congress unless the application therefor is heard and determined by a district court of three judges. In this case, however, there is no threat of enforcement of § 462(a). Appellee is powerless to enforce it and there is no showing that federal authorities have any intention of prosecuting appellants under its terms. For that matter, no one with power to enforce the provisions of § 462 (a) is a party to this proceeding. Consequently, on the record before us, an injunction against enforcement of that section is not proper. Congress of Racial Equality v. Douglas, 318 F.2d 95 (5th Cir. 1963); New Standard Publishing Co. v. Federal Trade Commission, 194 F.2d 181 (4th Cir. 1952). Moreover, the prime prerequisite of injunctive relief, the threat of irreparable future harm that might be caused by enforcement of § 462(a), is totally lacking. That statute is only collaterally involved and no threat or fear of prosecution under its terms is alleged. Cameron v. Johnson, 390 U.S. 611, 619-620, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968).

(2) We now approach appellants' claim for injunctive relief under 28 U.S.C. § 2281.⁴ Assuming, arguendo, that the appellee's resolution, which is applicable to nine state university campuses throughout California, is of statewide application and thus qualifies under the terms of § 2281 as construed in Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968); and Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962), we are still at a loss to find a basis for injunctive relief on this record. Appellants, for some time, had been actively pushing their program on the campus. They had circulated form pledges which would require the signer to promise that he would refuse to serve in the military on the grounds of moral objection to the war in Vietnam. They had publicized other pledges offering support in the form of "encouragement, counsel, and financial aid" to those signing the pledge. These, and other activities, had taken place openly after the passage of the resolution, but no one interfered with appellants' activities. They allege that they will continue such activities, but do not allege that any event similar to the Vietnam Commencement is planned for the future. In these circumstances, it is impossible to find a threat of irreparable harm, nor can we find any "chilling effect" upon First Amendment rights. This is true since the only threatened penalty, should some future unspecified event be found in violation of the resolution, would be the denial of the use of campus facilities.

In the light of this factual background, we hold that a remand for consideration by a three-judge court would be a misuse of the judicial function and an action which would be beyond the requirements of the statutes or the policy behind them. Time and time again the Supreme Court has warned us that the three-judge court legislation is to be narrowly construed. Mitchell v. Donovan, 90 S.Ct. 1763 (June 15, 1970); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1941). The statute was patterned to prevent the possibility of a single judge bringing to a halt the application of the legislative process. Its purpose is the protection of the legislative branch from judicial interference. Goldstein v. Cox, 396 U.S. 471, 476-477, 90 S. Ct. 671, 24 L.Ed.2d 663 (1970); Kennedy v. Mendoza-Martinez, 372 U.S. 144,...