Stamler v. Willis, 15268

• Citation: 371 F.2d 413
• Decision Date: 13 February 1967
• Docket Number: 15668,15269,15669.,No. 15268,15268
• Parties: Jeremiah STAMLER, M.D. and Yolanda F. Hall, Plaintiffs-Appellants, v. Honorable Edwin E. WILLIS et al., individually and as Chairman and Members of the Committee on Un-American Activities of the United States House of Representatives, Defendants-Appellees. Milton M. Cohen, Intervening Plaintiff-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

371 F.2d 413 (1966)

Jeremiah STAMLER, M.D. and Yolanda F. Hall, Plaintiffs-Appellants, v. Honorable Edwin E. WILLIS et al., individually and as Chairman and Members of the Committee on Un-American Activities of the United States House of Representatives, Defendants-Appellees Milton M. Cohen, Intervening Plaintiff-Appellant.

Nos. 15268, 15269, 15668, 15669.

United States Court of Appeals Seventh Circuit.

November 10, 1966.

Rehearing Denied February 13, 1967.

Albert E. Jenner, Jr., Harry Kalven, Jr., Richard Orlikoff, Chicago, Ill., Arthur Kinoy, New York City, Thomas P. Sullivan, Lael F. Johnson, Chicago, Ill., Raymond, Mayer, Jenner & Block, Chicago, Ill., Kunstler, Kunstler & Kinoy, New York City, for appellants.

Edward V. Hanrahan, U. S. Atty., Jack B. Schmetterer, Atty., Chicago, Ill., J. Walter Yeagley, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Kevin T. Maroney, Lee B. Anderson, Attys., Dept. of Justice, Washington, D. C., John Peter Lulinski, Asst. U. S. Atty., of counsel, for appellees.

Before KNOCH, KILEY and CUMMINGS, Circuit Judges.

Rehearing Denied February 13, 1967 en banc.

KILEY, Circuit Judge.

Plaintiffs appeal from a judgment of the district court denying their motion for a three-judge court¹ and dismissing their complaints. We order the judgment vacated.²

Since this court has no greater jurisdiction in this case than the single district judge, the sole question is whether the complaints presented a substantial constitutional question so as to deprive the district court of jurisdiction to dismiss the complaints.

The district court did not reach this question, but dismissed on the basis of rulings on "threshold questions" as to the propriety of a decision on the merits. But in our view, the district court, in reaching its conclusions on the "threshold questions," relied in part upon decisions on the merits of the case presented and in doing so exceeded the single-judge preliminary inquiry jurisdiction. We think that if the complaints present a substantial constitutional question, the three-judge court request ought to be granted, since there is no doubt that the complaints "at least formally alleges a basis for equitable relief * * *" and that "the case presented otherwise comes within the requirements of the three-judge statute."³ Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962).

The complaints alleged generally that the interpretation of section 18 of Rule XI⁴ as expressed by the continued conduct of the Subcommittee of the House Un-American Activities Committee attributes a meaning to the rule which renders it unconstitutional, and that this conduct consisted of the exposure of witnesses, including plaintiffs, to public scorn and obloquy and harassment and intimidation of these witnesses without any legislative purpose but rather to chill and deter them and others in the exercise of their first amendment rights.

These allegations raise a substantial constitutional question not foreclosed by the Supreme Court in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).

In Barenblatt the Court rejected the contention that Rule XI was unconstitutionally vague in delineating the limits of Subcommittee inquiry when judged, as it must be, in the concrete. The Court held that the Committee's history and the "persuasive gloss of legislative history" disclosed authority, unassailable on grounds of vagueness, to investigate Communist influence in education. 360 U.S. at 122, 79 S.Ct. at 1097. On the issue of violation of first amendment rights, the Court said "there is no indication in this record that the Subcommittee was attempting to pillory witnesses." 360 U.S. at 134, 79 S.Ct. at 1097. Here it is alleged that Rule XI, section 18, is unconstitutional as continually interpreted by the Subcommittee to justify the effectual "pillorying" of plaintiffs and other witnesses.⁵ We think the Court's language in Gojack v. United States, 384 U.S. 702, 86 S.Ct. 1689, 16 L.Ed.2d 870 (1966), supports our conclusion that the complaints raise a question not foreclosed by Barenblatt: "In the circumstances of that caseBarenblatt, the Court sustained the constitutionality of the investigation. * * *" (Emphasis added.) Id. at 706, 86 S.Ct. at 1692. We hold that a substantial constitutional question was presented and that the district court had no jurisdiction to dismiss the complaints.

The cause is remanded with directions to vacate the judgment and to grant the request for a three-judge court.

KNOCH, Circuit Judge (dissenting).

Reluctantly I find myself in disagreement with my colleagues. It seems to me that the District Judge properly considered the threshold questions of standing to sue and the...