SCHEUER v. RHODES

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Argument of Michael E. Geltner

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-914, Scheuer against Rhodes.

Mr. Geltner, you may proceed whenever you’re ready.

Mr. Michael E. Geltner: Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

The plaintiffs’ decedent, Sandra Scheuer, was killed by a national guardsman’s bullet on Kent State University campus in 1970.

Thereafter, the plaintiffs brought an action in federal court alleging a deprivation of civil rights under Section 1983, Section 1 of the Civil Rights Act of 1971, specifically detailing the alleged conduct and misconduct of the defendants charged.

The defendants moved to dismiss on the ground that while the action was in form against the defendants individually, in fact, it affected the State of Ohio, therefore, it was a suit against the State of Ohio and barred by the Eleventh Amendment.

Appeal was taken to the United States Court of Appeals for the Sixth Circuit and in a divided opinion, a panel of the circuit affirmed again on the Eleventh Amendment ground.

Judge White, in writing his majority opinion, went beyond the Eleventh Amendment ground and concluded that he reached the same result under the Doctrine of Executive Immunity which he held covered the field in actions arising under the Civil Rights Act.

So, we’re here without a record.

We’re here with a complaint and motions, and here on a theory which is heretofore had not been applied to actions charging individuals with misconduct under the Civil Rights Act or against any other jurisdictional basis which would otherwise lodge jurisdiction in the court.

As to the first issue, the Eleventh Amendment sovereign immunity issue so-called, the novelty to the issue is mentioned in my brief.

It has been our position throughout the litigation that this ground was repudiated long ago, it’s inconsistent without basic notion of federalism.

The Fourteenth Amendment can be made to co-exist with the Eleventh Amendment only insofar as the Doctrine of Ex parte Young is and remains viable and the Doctrine of Ex parte Young applies a fortiori in a case in which the plaintiffs seeks damages against an individual and charges the individual for misconduct.

Justice William J. Brennan: The petitioner here is an Ohio resident, is that right?

Mr. Michael E. Geltner: Yes, Your Honor.

Justice William J. Brennan: You make no point of the applicability of the Eleventh Amendment in the case?

Mr. Michael E. Geltner: I understand Your Honor’s dissenting opinion in the Employees of the Department of Mental Health in the State of Missouri versus the Department of Missouri.

I certainly am willing to take advantage of that position.

I don’t think it’s necessary to reach out for that proposition to decide this case on that issue.

In point of fact, this Court has never suggested that an action against an individual, an individual who -- or here individuals, who are governmental officers, which doesn’t seek in any way to get at the state treasury or at public property, is an action which falls under the Eleventh Amendment.

Therefore, I didn’t feel it was necessary to reach out for what you refer to in your opinion about it.

The Missouri case, which is the most recent decision of the Court on point, it seems to me, pins down quite clearly that there has been no sentiment in this Court for the proposition that the Eleventh Amendment could conceivably reach the case such as this one.

The majority opinion of Justice Douglas makes it quite clear that if the Congress, under Section 5 of the Fourteenth Amendment, were to attempt to lodge jurisdiction even against the state, if it were acting validly within a grant of legislative power, could do so.

Justice Marshall’s opinion for -- himself and Justice Stewart specifically exempts actions against individual officers from the thrust of his opinion which is that the Eleventh Amendment is a jurisdictional limitation, in effect, a gloss on Article III.

So that, it’s quite clear to me that what the Court of Appeals and what the District Court did was simply express its hostility to the plaintiffs’ view of the case by going out on a grant of decision which is totally unsupported by precedents of this Court, excuse me.

So, we get to what I believe is the heart of the case and that is the question of whether or not an executive immunity, so-called or sometimes called a governmental or official immunity, attaches in suits arising under Section 1 of the Civil Rights Act of 1871, specifically whether or not a governmental official can say “I’m immune from suit” and, therefore, though the plaintiff has charged him specifically with a deprivation of a constitutionally protected right, nevertheless, because of one’s position, one may not be sued.

The precise issue has not been adjudicated before in this Court.

We have Barr versus Matteo which is a defamation case arising under the District of Columbia in which the Court framed what I view as a federal common law defense to a state tort action.

Barr versus Matteo, for the reason summarized in our brief, does not really cover the ground here.

We don’t have a libel action here.

I express some doubt as to whether or not the same result would be reached in Barr versus Matteo on the basis of the law of defamation as it now stands after the Court’s opinions leading up to Rosenbloom, but I think it’s pretty clear that Barr versus Matteo does not cover this case.

The only expression of judicial opinion in this Court of significance on the immunity question here is Justice Harlan’s concurring opinion in the Bevins case.

If you may remember, the Bevins case presented both the question of whether or not there was a cause of action arising under the Fourth Amendment and, likewise, the question of whether or not defendants were immune from suit assuming there was a cause of action.

Justice Brennan’s opinion for the majority did not reach that second question because the Court of Appeals had not reached it.

Justice Harlan noted at the end of his long concurring opinion that it was not appropriate or necessary for him to decide the question, but he believed that it was appropriate to venture the opinion that, for the most flagrant examples of governmental abuse of power, there would certainly be a right to redress.

That is essentially the basis of the claim asserted by these -- by the plaintiffs of this case.

The issue has been spoken to by many Courts of Appeals.

By and large, the Courts of Appeals have distinguished actions arising under the Civil Rights Act from state tort actions have noted, as did Justice Harlan, that a deprivation of a constitutional right is significantly more serious than a tort arising under state law.

For that reason, they concluded that, irrespective of the state rule of immunity which might be applicable, it was clear to those courts that there was no such executive immunity under the Civil Rights Act.

This conclusion, it seems to me, is the appropriate one.

It certainly fits the intention of the Congress.

The Congress of 1871 perceived the problem before as essentially a problem of violence and saw the problem that was sought to be raised by both Sections 1 and Sections 2 of that Act as governmental and non-governmental violence.

The non-governmental violence being essentially covered by Section 2 of the Act which is presently Section 1985, and the governmental violence being covered primarily by Section 1 of the Act, that is, this is an appropriate case fitting within the precise legislative intention of the Congress.

The Congress’ intention was recently summarized for the Court in Justice Brennan’s opinion in District of Columbia versus Carter.

It certainly supports that conclusion that that is what Congress is concerned with.

Chief Justice Warren E. Burger: You haven’t mentioned Moyer against Peabody or cited it in your brief.

I take it, you think that there’s not much left of that.

Mr. Michael E. Geltner: We discuss Moyer versus Peabody at some length in our brief.

Chief Justice Warren E. Burger: In your reply?

Mr. Michael E. Geltner: Moyer versus --

Excuse me, Your Honor?

Chief Justice Warren E. Burger: It must be in your reply brief.

Mr. Michael E. Geltner: No, it is discussed, I believe --

Chief Justice Warren E. Burger: Well, don’t trouble yourself now.

Mr. Michael E. Geltner: In the main brief.

Chief Justice Warren E. Burger: I couldn’t find it in your Index.

Mr. Michael E. Geltner: There are two relatively long briefs.

There’s a main brief and a reply brief.

We see Moyer versus Peabody, first of all, as being substantially limited by the Court’s opinion in Sterling versus Constantin.

Secondly, to the extent that Moyer versus Peabody makes an expression that the government of the state can do whatever the governor of the state believes is appropriate to do, it is both overruled by Sterling versus Constantin and, furthermore, fundamentally inconsistent with the thrust of this Court’s decision preceding it as specifically inconsistent with Ex parte Milligan which was decided the year Congress passed the statute.

The sole question that seems, as to the legislative intention, is what that Congress intended.

It’s inconceivable that that Congress with its view point could have intended an immunity of this kind for a state governor in view of the fact that state law enforcement was primarily what the Congress was attempting to reach with both Section 1 and Section 2.

And so, we get to the prevailing history and it is pretty clear that, unlike the legislative history -- legislative immunity which was recognized in 1871 both by the federal constitution and by parallel state constitutions, and unlike the Law Extending Doctrine of judicial immunity, there is no substantial support for the view of executive immunity at the time that this Congress acted.

Congress simply must have seen it as an appropriate purpose to reach governmental misuse of force and there is no basis to believe from the debates that Congress intended to carve out any individuals as immune from the reach of its legislative power.

Now --

Justice Thurgood Marshall: In one of those three cases, Strutter, one of them -- wasn’t that a judge involved in that case, wasn’t it Ex parte of Strutter or --

Mr. Michael E. Geltner: Ex parte Virginia.

Justice Thurgood Marshall: Was it one of them?

Mr. Michael E. Geltner: Yes, Your Honor, Ex parte Virginia.

Justice Thurgood Marshall: Yes, the judge was involved.

Mr. Michael E. Geltner: Well, we distinguish clearly judicial immunity here from executive immunity.

As I mentioned in my brief, the legislative history to my mind does not even support judicial immunity.

I reckon that we’ve got Pierson in this Court and Bradley versus Fisher at that time to cope with, this is clearly a different issue.

Now, it is in fact true that many states now have a Doctrine of Executive Immunity for state torts and similar actions.

It’s likewise true that this court has recognized such an immunity in Barr versus Matteo with respect to a parallel issue, namely state libel actions, involving federal officials.

They don’t cover this issue and secondly, to the extent that there is an implication in any of these opinions that it is appropriate to distinguish for immunity purposes between ministerial officials and so-called officials exercising discretionary functions, we believe that any such distinction is basically inconsistent with the purpose of the Civil Rights Act and inconsistent with logic.

There is, for example, in the remand opinion of the Second Circuit in the Bevins case an suggestion that while the particular parties before the Court, they are Federal Narcotics Bureau Agents, were not immune, possibly the Director of the Federal Narcotics Bureau or somebody else who made basically discretionary decisions would be immune from suit.

Now, the distinction has never been applied in Civil Rights Act cases.

In tort cases, the distinction has always been a distinction based upon the immunability of lower level officials to mandamus where there is a positive declaration by law that they must do an act.

So, for example, a court clerk might be subject to mandamus to compel the court clerk to give a copy of the document to somebody.

Similarly, those courts have said where refusal to engage in an act, which could be compelled to a mandamus, could be a basis for liability.

But those courts have also said a discretionary act, that is one not subject to mandamus, might be immune from suit.

Now, to hold that as to the Civil Rights Act seems anomalous.

We might, for example, have a situation in which a senior police official orders a policeman to engage in an unconstitutional act and the situation in which the person who commits the act, who had no basic decision making power, is left holding the bag while the officer who made the decision to engage in the constitutional deprivation is, in fact, immune.

That seems senseless in view of the fact that it was clearly the purpose of the Congress to reach both.

In addition, there doesn’t seem any sensible basis to close the doors of the court with respect to that sort of act.

The distinction between ministerial and discretionary acts, when one clearly looks at it, breaks down.

In fact, at all levels of government, at least when we’re dealing with the question of use of governmental force, discretion is exercised, so that at both levels, the concept of a ministerial discretionary distinction breaks down as being basically inconsistent with the policies sought to be served, excuse me, by the Congress.

So, what we’re left with then is the bare claim that if officials are subject to suit, it will be troublesome for them.

They are too important to be called into court.

They’ll have to spend time.

They’ll have to spend money.

They might be intimidated.

Now, it seems to me that where the Congress has declared a specific policy, the purpose of which is to prevent certain kinds of wrong, it is precisely then that the intimidation should attach.

And, in fact, the threat of liability is the way in which the Congress attempted to achieve its result in 1871, preventing the misuse of governmental force on individuals.

Your Honor, I requested that I reserve 10 minutes, and I believe my 20 minutes is up, so that if there are no further questions now, I’d like to reserve rebuttal time.

Chief Justice Warren E. Burger: Very well, Mr. Geltner.

Mr. Brown.

Argument of Charles E. Brown

Mr. Charles E. Brown: Mr. Chief Justice and may it please the Court.

The issues in this case are such as they go to very heart of federalism.

They go to the very delicate balance between our form of government, and the issue is can Federal Courts control the administration of state law?

I respectfully disagree with Mr. Governor as to the issue of jurisdiction.

In our judgment, that is a very important issue in this case.

Justice Potter Stewart: That is the Eleventh Amendment issue?

Mr. Charles E. Brown: Yes, Your Honor.

The court below, that is the District Court, at the time we filed our motion to dismiss under the Eleventh Amendment and as this Court well knows, the Eleventh Amendment applies not only to suits by the citizens of one state against another state, but the citizens of a state against its own state which is the case here at bar.

At the time we filed our motion to dismiss, there was pending before the District Judge an affidavit of General del Corso that he was not at the scene, an affidavit from General Canterbury that he gave no order for anyone to fire, and there was the Executive Proclamation of Governor Rhodes that a riotous condition, insurrection, if you will, existed in the city in county -- city of state and the Kent State University Area.

Pursuant to that, the National Guard was called out.

Now at this point, under Ohio statutes, the members of the Ohio National Guard had no choice.

They, of course, had to go.

They were ordered to go.

It is important to note, and I would like to point out to the Court that, before this Court today, we do not have the issue of the Ohio National Guard.

There are seven named defendants, and those are the only people before the court today and not the entire Ohio National Guard.

Now under the Eleventh Amendment, 12 (b) (1) motion to dismiss which goes to the question of jurisdiction, and of course as this Court well knows the 12 (b) (6) motion goes with the question of whether a cause of action is stated.

The Court has consistently held that to determine whether or not a suit is in fact against the state, you look behind the nominal parties defendant named and look at what is the essential nature and effect of the lawsuit.

Now, this test was first set out by the -- was set out by this Court in the Ford case.

Dugan versus Rank, which is a 1963 decision from this Court, defines when a state is affected.

And if a state is in fact affected, then you look behind the nominal parties defendant and determine that it is a state against the -- a suit against the sub.

And in Dugan versus Rank this Court stated, if the judgment sought would expend itself on the public treasury or domain or interfere with the public administration or in the -- if the effect of the judgment would be to restrain the government from acting or to compel it to act, then the act is considered as to be one against the state.

Now, we submit here that the seven named defendants are nominal parties only and that this action is in fact one against the State of Ohio.

Now, the case of Barr --

Justice Byron R. White: Any more so though than Sterling in the Sterling case?

Mr. Charles E. Brown: The Sterling case is distinguishable.

That is an injunction action, Your Honor, to enforce an unconstitutional statute.

Now, we don’t have that situation here.

Justice William J. Brennan: I know, but the claim was that -- the claim, at the outset, was that the court had no jurisdiction to entertain the suit.

And, this Court ruled that Federal Courts have a jurisdiction to entertain the suit.

There was no bar.

The suit against the government was not a suit against --

Mr. Charles E. Brown: Well, Your Honor, I respectfully disagree with you.

I don’t believe the Court said that.

I think what the Court said, because you have an unconstitutional statute, you don’t have the state acting, therefore, it isn’t the state acting.

The state cannot enforce an unconstitutional statute.

Now, as I read the decision, I think that’ what you said.

Justice Byron R. White: As long as you think that the Federal Court in this case would have jurisdiction if there has been indication that the defendant's violated constitutional rights.

Mr. Charles E. Brown: No, if we were acting under unconstitutional statute, Your Honor.

There is a difference, if I may say, between stating a cause of action and jurisdiction.

I’m not too stating the cause of action.

Justice Byron R. White: That’s the distinction you assert?

Mr. Charles E. Brown: Yes, sir.

There is a definite distinction in my opinion.

And, I’m saying here that if the seven named defendants were acting under a constitutional warrant at the time and there is no allegation or challenge to the contrary by the petitioners and if they were acting within the delegation of that statutory warrant, then they are agents of the sovereign and the action may not be maintained.

There is no jurisdiction.

And as I pointed out a moment ago, Your Honor, I would get to the cause of action discussion later as it relates to the Doctrine of Executive Immunity.

But this Court in Barr, in quoting from Gregoire, adopted his -- Judge Hand’s reasoning and logic to the effect that if actions are permitted to be maintained against state officials, then you will have times when a state official will abuse his power.

There will go un-redressed some wrongs, but you must weigh the equities which is more important.

This is a pragmatic, a public policy argument, if you will.

And for example, to illustrate that point, as Mr. Chief Justice mentioned a moment ago, in Moyer versus Martin we have the question of calling out the National Guard.

Justice Holmes wrote the decision in that case.

This Court held that the calling out of the National Guard was not reviewable and Justice Holmes stated “as no one would deny that there was immunity for ordering a company fire on a mob in insurrection and that a state law authorizing the governor to deprive citizens of life under such circumstances was consistent with the Fourteenth Amendment.

We are of the opinion that the same is true of a law authorizing by implication what was done in this case.”

And in that particular case, perhaps a man was unconstitutionally deprived of his liberty.

He was put in jail for, I think, two-and-a half months, but this Court held that the discretion of the Executive Branch of a state government in calling out the National Guard is his discretion.

Justice Potter Stewart: But that wasn’t an Eleventh Amendment case, was it?

Mr. Charles E. Brown: No, it was not, Your Honor.

That was --

Justice Potter Stewart: I thought we were talking about the Eleventh Amendment or you’ve moved on to --

Mr. Charles E. Brown: Alright.

Now, the petitioners on the Eleventh Amendment argument rely on Sterling, Ex parte Young, those kinds of cases, all of which are distinguishable in our opinion because we’re talking about unconstitutional statutes.

And in Sterling, before the governor called out the guard, the Federal Court had already enjoined the matter.

So, he was flying right in the face of an order of a Federal Court at that time.

The Larson case applied the Eleventh Amendment immunity.

The agents of the sovereign were immune even if their actions at the time were ultra virus.

Chief Justice Warren E. Burger: I think we will pick up at that point after lunch, Mr. Brown.

[Luncheon Recess]

Mr. Brown, you may proceed whenever you’re ready.

Mr. Charles E. Brown: Mr. Chief Justice and may it please the Court.

In going further on my jurisdictional argument as to whether the court below under Rule 12 (b) (1) had jurisdiction, I would like to point out that, contrary to what my imminent opponent stated.

Sterling versus Constantin did not in fact overruled Moyer, It cited it with approval and stated they were dealing with a different situation there, taking of property.

Moving on now to the effect test, that is if the nature of the lawsuit even though naming nominal parties as defendant in fact affects state government, then it is an action against the state.

And this Court in Dugan versus Rank, which is a 1963 decision, stated the test.

The general rule is that if suit is against the sovereign, if the judgment sought would expend itself on the public treasury, domain, or interfere with the administration of justice, if the effect of the judgment would be to restrain government from acting or to compel it to act.

Now, that is exactly what we’re talking about here.

Granted, the Dugan case is a federal government case.

But which is more important, the constitutionally granted rights to the states, that is, the Eleventh Amendment, or the common law interpretation of the immunity of a federal government?

Along that same line, as this Court well knows in Barr versus Matteo, they quoted, with approval, Judge Learned Hand in Gregoire versus Biddle and I’d like to quote a part of Judge Hand’s opinion.

“Again and again, the public interest calls for action which may turn out to be found on a mistake, in the face of which, an official may later find himself hard put to satisfy a jury of his good faith, the answer must be found in a balance between the evils inevitable in either alternative.”

In this instance, it has been thought in the end better to leave un-redressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

I submit to the Court that that is exactly a situation with which we are here confronted.

What would be the effect on state officials in every state of the Union if Federal Court would be granted jurisdiction in this kind of a situation?

Any vituperative, vindictive, plaintiff wanting to vent his spleen on a state official could file a lawsuit.

You could literally tie up state governments, just mimeograph thousands of lawsuits against all kinds of people and tie up state government.

That is exactly how it could be affected.

Justice Harry A. Blackmun: Judge Hand’s comment in the Gregoire case was not in the context of 1983?

Mr. Charles E. Brown: No, Your Honor, it was not, but the same reasoning would apply, it seems to me.

Justice Harry A. Blackmun: And that is also true of Barr against Matteo?

Mr. Charles E. Brown: Yes, sir.

That is true, yes sir.

Let’s just take a specific example of a national guardsman in any state in the Union called to act of duty, to quell riot, insurrection, what have you?

If he knew that in the performance of his duties as he was commanded to do by the Governor of the State of Ohio and his commanding officers that he could be sued, would he diligently carry out his duties?

This is a very pragmatic policy consideration.

Should officials, all state officials, be free to carryout their duties unhindered and unhampered or should they live in constant fear of being sued?

We feel, as did Judge Hand, that they must be free to carryout their duties.

Now clearly, does that leave people without a remedy?

If you have a dishonest official or somebody acting vindictively?

It does not because they are still subject to the electoral process and they can be recalled from office.

In conclusion, therefore, on the 12 (b) (1) motion on jurisdiction, we clearly feel the courts below were correct in their interpretation of that matter and the Eleventh Amendment.

And further, that the only material before the court when considering a motion were affidavits which I’ve previously mentioned, which incidentally were in the Krause case and not the Missouri case but they’re, in effect, companion cases and the court also took judicial notice of the facts as they existed at Kent State on this tragic day.

And I’m sure this Court is well aware of Judge O’Connor’s concurring opinion in that regard in the Sixth Circuit.

Going on now to the question of sovereign immunity; first of all 1983 says, as this Court well knows, all persons who violates someone’s rights are subject to suit, etcetera.

And yet, this Court has held in Pierson versus Ray, a 1969 decision, that judges acting within their scope as judges are immune under 1983 for acts within their discretion.

In the Tenney case, which is a 1950 case, this very Court held legislators immune while doing things within their discretion.

Now, it seems to me in Congress, that the people that passed the laws and the people that interpret the laws have immunity.

When the very person designated by the Constitution of the United States and the constitutions of the respective states would not have immunity to carryout the very laws that the legislature imposes and the judiciary interprets.

I would respectfully submit that petitioners are in error when they state that executive immunity was unknown prior to 1871 enactment of 1983, and we cite in our brief two cases, both preceding 1983: General versus Stokes and Wilks versus Demson, an 1845 case and an 1849 case.

So, executive immunity did, in fact, exist.

And another point I think worthy of comment; our laws as traditionally were adopted in this country were a carryover, of course, from the common law of England which has known immunity for some period of time.

Do we have executive immunity now?

In our judgment, the answer is clearly yes.

Barr versus Matteo which it, once again, quotes Gregoire versus Biddle and as I’ve previously stated, Moyer versus Peabody, Holmes -- the Court there held that, certainly, the discretionary act of the governor in calling out the guard was within his power and right.

Now, we go on to the diversity matters in applying the wrongful death diversity --

Justice Byron R. White: Could I inquire for a moment.

Let’s assume it is alleged that the state officials, this is with respect to immunity, it is alleged that the state officials acted deliberately and knowingly to violate a constitutional right in the sense that they intended to deprive somebody of his constitutional rights.

And let’s assume that it’s proved and everybody concedes that they knew they were and they did it deliberately.

Would you still insist on immunity?

Mr. Charles E. Brown: Probably not if they could prove all of the things which Your Honor has in fact stated.

Justice Byron R. White: Well, would say you would submit that kind of -- those kinds of allegations is to proof?

Mr. Charles E. Brown: Not the allegations, Your Honor.

A court is bound to determine the facts in the first instance as it really exists, as they truly exist and the court may do whatever it wants in that regard.

Justice Byron R. White: Would you permit a court to see if the plaintiff could prove those kinds of allegations against the state official?

Mr. Charles E. Brown: Not normally, Your Honor, unless there were some evidence before the court, concrete evidence other than sheer allegations and sheer conclusions of law and unwarranted deductions of fact, not unless there was something.

Justice Byron R. White: Well, I know but here’s the -- how -- here’s the complaint, let’s assume, that says that the official has deliberately and knowingly deprived the person, and intentionally deprived the person of his constitutional rights.

That’s the allegation, they want an opportunity to prove it.

Now, would your claim of immunity stops that suit in its tracks before it ever got started.

Mr. Charles E. Brown: If in fact that was true, Your Honor, no.

Justice Byron R. White: Well --

Mr. Charles E. Brown: But --

Justice Byron R. White: I’d say all you have is the allegation and the complaint.

Mr. Charles E. Brown: I would say that standing alone is insufficient, yes sir.

Justice Byron R. White: Well, then you would say dismiss the case without any opportunity to prove it.

Mr. Charles E. Brown: Depending on the facts as they really existed, if I were the Federal Court --

Justice Byron R. White: Well, how do you know what facts existed?

Mr. Charles E. Brown: Well, because some well pleaded facts, I think, the Court should take in.

Justice Byron R. White: Well, let’s assume that they are well pleaded facts?

Mr. Charles E. Brown: On that mere allegation, I would dismiss the complaint with nothing further before me, yes.

Justice Byron R. White: So you would say that the -- you would insist on immunity even though it is alleged and somebody stands ready to prove --

Mr. Charles E. Brown: If there is more than the sheer allegation standing alone, Your Honor, this is the distinction I’m attempting to make.

The court may call a preliminary hearing and look into the facts.

Now, I’m saying it would be a rare instance when they do that.

Justice Byron R. White: Your immunity claim would not stop that claim?

Mr. Charles E. Brown: No.

Well, for example, let’s take a gross situation where, let’s say, two highway patrolmen stop a drunk driver, summarily trying and shooting.

Certainly, I’m not claiming in that situation that you would have immunity.

I’m not.

Justice Harry A. Blackmun: Here, you are, in effect, reading the allegations of bad faith out of the complaint?

Mr. Charles E. Brown: I’m saying the court below properly looked into the facts as they existed, that is what I’m saying, Your Honor, yes and, I would point out that the petitions did not even ask for preliminary hearing.

The only evidence before the court were the facts that we have before plus the judicial notice of the facts as they took the petition.

Justice Byron R. White: You wouldn’t -- I don’t suppose you would suggest that the state officials would be immune from criminal prosecution under a federal criminal law?

Mr. Charles E. Brown: I would not, Your Honor.

I would not say that.

Justice Byron R. White: What about 242 that speaks about conspiracy to deprive people of their constitutional rights?

Mr. Charles E. Brown: Are you talking about a criminal prosecution now?

Justice Byron R. White: Yes.

Mr. Charles E. Brown: I would say they would not be immune for criminal prosecution.

Justice Byron R. White: And if the law -- if the same allegations were made in the civil suit, that would have to be proved to prove a criminal violation?

Mr. Charles E. Brown: Yes.

Justice Byron R. White: Would you say that the immunity would apply there?

Mr. Charles E. Brown: To a criminal situation?

Justice Byron R. White: In the civil suit.

Mr. Charles E. Brown: In a civil suit?

Just because it was a criminal act?

Justice Byron R. White: No, just because the very same allegations in the civil action are made that the state would have to prove in the criminal case or if the government would have to prove in a criminal case to succeed.

Do you say that criminal -- there would be no immunity in the criminal suit, but there would be in the civil suit?

Mr. Charles E. Brown: That’s right, Your Honor.

That’s the position I take.

Justice Thurgood Marshall: That would apply to the federal statute?

Mr. Charles E. Brown: Yes, sir, in my opinion.

Justice Thurgood Marshall: They both were enacted at the same time, weren’t they?

Mr. Charles E. Brown: I believe they were.

I am not positive.

Justice Thurgood Marshall: How did -- well, what justification do you have for taking the criminal and not the civil?

Mr. Charles E. Brown: Pragmatic public policy considerations have public officials carry out their duties unfettered for fear of a bunch of lawsuits.

Now, criminal --

Justice Thurgood Marshall: Then you’re telling me that Congress meant to apply this criminally, but not civilly, is that what you’re saying?

Mr. Charles E. Brown: Well, there are two different statutes you’re talking about, Your Honor --

Justice Thurgood Marshall: They were passed in the same --

Mr. Charles E. Brown: To assess in the same statutes --

Justice Thurgood Marshall: They were passed in the same batch is passed.

Mr. Charles E. Brown: Well, Your Honor, of course we --

Justice Thurgood Marshall: Are you telling me that Congress said that you are criminally liable, but not civilly liable?

Mr. Charles E. Brown: Yes, sir, that is exactly what I’m saying.

Justice Thurgood Marshall: And what in the world do you have to back that up?

Chief Justice Warren E. Burger: I suppose one difference would be that anyone can start any kind of a frivolous lawsuit to get an indictment, you’ve got to go through a grand jury. One of the historic purposes of a grand jury was to be a buffer against frivolous irresponsible charges, is that not so?

Mr. Charles E. Brown: Yes, Your Honor.

Justice Thurgood Marshall: Is that in the debate?

Of course, it’s not.

Mr. Charles E. Brown: No, sir, and neither the judicial immunity in the debate, Your Honor, or legislative immunity.

This is court interpretation.

Justice Thurgood Marshall: Well, you have now interpreting this statute, the 1871 statute?

Mr. Charles E. Brown: I’m asking that this court is going to interpret it and it has in the past, Your Honor, absolutely and they have abided --

Justice Thurgood Marshall: You want us --

Mr. Charles E. Brown: -- in certain situations.

Justice Thurgood Marshall: You want us to say that this man can go to jail, but he can’t be subject to an injunction?

Mr. Charles E. Brown: We’re talking about damages in this action, Your Honor, and I am saying --

Justice Thurgood Marshall: Either way --

Mr. Charles E. Brown: I am saying exactly that.

Justice Thurgood Marshall: Well, are you saying he can go to jail for five years, but he can’t be sued for $2 damages?

Mr. Charles E. Brown: Yes, sir, Your Honor, I am saying that loud and clear, not based upon --

Justice Thurgood Marshall: You are?

Mr. Charles E. Brown: Yes, sir.[Laughter]

-- not based upon unwarranted conclusions of law and unwarranted deductions of fact, I am saying that.

Briefly, Your Honor, my time is running out, on the diversity issue, there, we clearly apply the law of the form of Erie versus Tompkins, and there is a long line of Ohio cases cited in our brief dealing with both the question of executive immunity -- with the question of executive immunity and with officials of state government in doing their discretionary acts.

Moving on briefly to the issue of justiciability, whether or not the training and weaponry of the Ohio National Guard is a justiciable matter which this Court should consider, this Court set forth the guidelines in Baker versus Carr’s six elements.

This case, we feel, clearly falls into those.

This Court recently heard the case of Gilligan versus Morgan involving the very issue of whether or not this was a justiciable question or a political question.

They decided that it was not, that the judiciary should not get involved in these matters, and we feel that was a proper decision.

I see no distinction to be made between an injunction, which was the Gilligan case, and an ex post facto damage action which is what we have here.

Finally, Your Honors, if the political question is overruled, the federal government who sets up the standards for training the National Guard and who -- and Congress who is given the responsibility under the constitution, the federal government certainly would be an indispensible party in that regard.

In conclusion, therefore, we feel that the court below considering Rule 12 (b) (1), Rule 12 (b) (6), properly applying those rules to the issues of jurisdiction and executive immunity properly dismissed the petitioners’ complaints.

If the court has no further questions.

Justice Harry A. Blackmun: Mr. Brown, I suppose your position does undercut, somewhat anyway, Section 1983, doesn’t it, to the extent you’re asking for --

Mr. Charles E. Brown: Sir, in response to that, I would say this Court has applied 1983 to two classic cases: Burnbam case and Ex parte Virginia, both involving civil rights violations; one involving a Jewish gentleman and the other one involving a judge who refused to let Black people sit on his jury.

Clearly, those are classic situations for the application of 1983, but extending it to abolish executive immunity, it seems to me, is not proper.

Chief Justice Warren E. Burger: Moyer against Peabody was under the Civil Rights Act, was it not?

Mr. Charles E. Brown: This was the Governor of Colorado calling out the National Guard, that was before the Civil Rights -- no, it wasn’t, Your Honor.

Chief Justice Warren E. Burger: No.

Mr. Charles E. Brown: That was after -- It was 1980.

That was the Governor of Colorado calling out the National Guard, and this man was imprisoned for two-and-a half months and he sued for false imprisonment.

And, the court said -- the court could not question the governor calling out the National Guard.

And, that’s where Holmes said no one would doubt that a guard would have the right to fire into a mob at a time of insurrection.

Justice Harry A. Blackmun: You’re not suggesting that Ex parte Young is wrong or should be overruled?

Mr. Charles E. Brown: It should be distinguished, Your Honor, that was an injunction action, clearly distinguishable.

Justice Harry A. Blackmun: That’s your own distinction of it?

Mr. Charles E. Brown: Yes, sir.

Justice Harry A. Blackmun: And it has to be, I guess.

Mr. Charles E. Brown: Right, and are also involved an unconstitutional statute.

Justice Potter Stewart: Well, how -- you say then that there is not immunity if it’s an injunction, an action for an injunction, is that right?

Mr. Charles E. Brown: No, it depends --

Justice Potter Stewart: An immunity only exists -- the immunity exists only when the action is for money damages?

Mr. Charles E. Brown: No, if you’re talking about an unconstitutional statute, these cases, the whole of the immunity does not exist.

You’re either talking about an unconstitutional statute or the officer acting outside the statutory warrant.

Now, those are two instances in all of the cases attempted to be distinguished by eminent opposition here.

We don’t have that in this case, and it is unchallenged that there was authorized statute and we were acting with that.

That’s --

Justice Potter Stewart: The distinction that my brother Blackman asked you about is not the distinction you make.

It’s not as between an injunction and the damages?

Mr. Charles E. Brown: It depends on what the injunction relief seeks, Your Honor.

I could not make the complete bold statement that every injunction action would be defeated.

Now, it would not be defeated.

It would’ve been obviously up on what was attempted to be enjoined.

But, every case relied upon by the petitioners, Your Honor, we feel is readily distinguished.

Chief Justice Warren E. Burger: The Sterling case would be an example of that.

Mr. Charles E. Brown: Yes, Your Honor.

Chief Justice Warren E. Burger: It protects this case where the injunction suit was brought to prevent the enforcement of a statute that had previously been if, as I recall it --

Mr. Charles E. Brown: Yes, sir.

Chief Justice Warren E. Burger: -- previously declared unconstitutional.

The governor was applying and notwithstanding the court's --

Mr. Charles E. Brown: He was ignoring the Federal Court, Your Honor, pure and simple.

Justice Thurgood Marshall: Barr and Matteo wouldn’t bar an injunction?

Mr. Charles E. Brown: Pardon me?

Justice Thurgood Marshall: Barr and Matteo would not bar the injunction action?

Mr. Charles E. Brown: In what regard, Your Honor?

Justice Thurgood Marshall: As here.

Mr. Charles E. Brown: As here?

Justice Thurgood Marshall: Yes.

Mr. Charles E. Brown: Well, the holding in Barr -- I’m not really sure I follow, Your Honor, an injunction action as to prohibit what?

Justice Thurgood Marshall: Action of an executive officer of a state?

Mr. Charles E. Brown: It would enjoin him, in my opinion, if he were attempting to enforce an unconstitutional statute or acting in an area of ultra virus, yes.

I’m outside the statutory warrant.

Justice Thurgood Marshall: Well, then why wouldn’t it be a flood of lawsuits, the same floods you’re talking about?

Mr. Charles E. Brown: Because we’re talking about different things.

You’re talking about, in one instance, unconstitutional statutes and people acting clearly outside the authority.

Justice Thurgood Marshall: Well, you said if there is a possibility of an action for damages, there will be a flood of lawsuits.

You now say there’s a possibility of an action for injunction.

My question is why wouldn’t it be just as much of a flood of lawsuits?

Mr. Charles E. Brown: We are talking about executive immunity, whether it exists as to damages or injunction, Your Honor.

And I’m saying that if the elected public officials of this country cannot constitutionally carryout their duties under their proper statutory warrants, there will be a flood of lawsuits.

Now, if they’re acting outside of either of those two and if they do something wrong, clearly they are subject to lawsuit -- an injunction.

Justice Thurgood Marshall: Some of these are not elected officials?

Mr. Charles E. Brown: No, many of them, most of them.

The best majority are appointed, but they still fall within the Executive Branch of the government.

Chief Justice Warren E. Burger: It appears on an examination of Moyer against Peabody that that was brought under 1983 in the Federal Court by the gentleman who was imprisoned for two or three months.

So, there was the same kind of an action as we have here.

I guess there are no further questions.

Thank you, Mr. Brown.

Mr. Charles E. Brown: Thank you very much, Your Honor.

Chief Justice Warren E. Burger: Mr. Geltner.

Justice William J. Brennan: Do you agree that Moyer was an old 1979 before 1983, right?

Rebuttal of Michael E. Geltner

Mr. Michael E. Geltner: Yes, Moyer was and, Your Honor, if I could mention, the thing about Moyer is, Moyer was a case in which the Governor of Colorado concluded that there was an insurrection.

As a consequence of his conclusion that there was an insurrection, he imprisoned the plaintiff and the plaintiff later brought an action charging a deprivation of the constitutional right.

Now, the thing about Moyer is Moyer holds that the governor’s decision of insurrection is unreviewable.

That part of Moyer is clearly overruled by Sterling versus Constantin.

The dictum in Justice Holmes’ opinion in Moyer to the effect that the governor could do more than imprison, it seems to me, is completely out of consonance with our traditions.

The concept is basically that in an insurrection, which we did not have here, in an insurrection the governor could do whatever he pleases to put down the insurrection.

In fact, in Ex parte Milligan, the Court held that there was only one thing that an insurrection or rebellion change, and that was he permitted the writ of habeas corpus to be suspended during the continuation of the insurrection.

We don’t have either of those issues here.

We don’t have an insurrection.

We don’t have here the question of whether or not the writ was properly suspended.

Justice Byron R. White: It seems to me that that was sort of whether or not a compliant would state a cause of action --

Mr. Michael E. Geltner: Yes, Your Honor.

Justice Byron R. White: -- rather than immunity.

Mr. Michael E. Geltner: Absolutely, Your Honor.

Justice William J. Brennan: And, wasn’t there immunity talk in Moyer?

Mr. Michael E. Geltner: I view that talk as being basically connected with the Court’s decision on the cause of action.

That is all that I see there and I think that the opinion bears it out.

Chief Justice Warren E. Burger: Do you think the expressions that the action of the Governor in Colorado calling out the guard was an unreviewable action.

That was dictum by Justice Holmes?

Mr. Michael E. Geltner: No, I think that was the holding of the case.

I think that --

Chief Justice Warren E. Burger: Well, it’s in the case, isn’t it?

Mr. Michael E. Geltner: That aspect of the case was specifically overruled by Chief Justice Hughes’ opinion in Sterling versus Constantin, the specific holding of the un-reviewability of the determination of the existence of insurrection and so what we’re left with as to Moyer is the dictum that Justice Holmes issued.

Justice Byron R. White: With respect to immunity?

Mr. Michael E. Geltner: Yes, sir.

Well, with respect -- I read that dictum as being related to the power of the governor to do whatever the governor feels necessary.

Justice Byron R. White: If that’s the way you read it, the case has nothing to do with immunity?

Mr. Michael E. Geltner: Yes, Your Honor.

That’s exactly what I read.

Justice William J. Brennan: So it doesn’t make any difference what Constantin did to it?

Mr. Michael E. Geltner: Yes, Your Honor.

I read it that way.

I read the case -- I read both cases as having no bearing on immunity, but having bearing on the cause of action.

Justice Lewis F. Powell: Mr. Geltner, is it essential to your position that bad faith be proved?

Mr. Michael E. Geltner: No, Your Honor.

Justice Lewis F. Powell: Well, what would have to be proved?

Mr. Michael E. Geltner: Our position is we rely for a substantive theory.

Again, going to the cause of action rather than immunity issue, we rely on Monroe versus Pape and the few expressions in dictum in this court’s opinions in D.C. versus Carter and in Moore versus Alameda County.

Specific intention to cause injury or deprive one of the constitutional right is a prerequisite to establishing criminal liability under Section 18 US Code, Section 241 which is the criminal analogue of Section 1983.

In Monroe, the Court specifically dealt with the distinction on how that specific intention is not necessary, rather, Section 1983 was to be interpreted in line with the intention of Congress to reach governmental misuse of force and with the preexisting body of tort law which founded liability on fault.

So that, the only question that relates to the viability of the cause of action is whether or not we have alleged and proved fault on the part of the individual defendants which fault lead to the deprivation of a constitutional right, in this case, the right not to kill.

Justice Lewis F. Powell: You’re using fault in same sense as the word “negligence” is used?

Mr. Michael E. Geltner: I’m using fault in the sense of either wrongful intention, recklessness, wanton and willful misconduct, or negligence.

Justice Lewis F. Powell: Mere negligence?

Mr. Michael E. Geltner: Mere negligence.

Now, as to mere negligence, this Court has not passed directly on that issue.

The weight of authority in the Circuit Courts is that mere negligence when tied to a deprivation of a constitutional right, for example negligence leading to a misuse of weapons by governmental troops, states a claim under Section 1983.

And, in my brief, I’ve cited the case on which you rely for that proposition.

I believe Monroe versus Walter (ph).

Justice Lewis F. Powell: I was going to ask whether you read Judge Seligricci’s (ph) dissent that way?

Mr. Michael E. Geltner: Well, there again, Judge Seligricci's dissent didn’t have to reach out to the question of the cause of action.

We have alleged, and I believe we can prove, although we have no record before us, that what we allege.

We have alleged intentional conduct.

We’ve alleged recklessness and, we’ve alleged wanton and willful misconduct.

We believe that this point is not incumbent in us to prove it.

We can’t prove that before this Court.

Chief Justice Warren E. Burger: Would you consider it a showing of negligence meeting the standards you have just suggested if the evidence was that the governor had signed the proclamation for calling out the guards or signing the order on the basis of newspaper accounts as to what was happening down in some southern county in the state?

Mr. Michael E. Geltner: Your Honor, we are not claiming the liability of the governor flows from the fact that the government called out the guard, that is not the basis for liability in this case.

We have alleged with great specificity what we rely on.

We rely on orders.

We rely on the rules of engagement which existed at the time in the Ohio National Guard which the governor knew about, specifically the orders to carry loaded weapons, the orders to march head on with bayonets out into a crowd.

These are matters of record as a consequence of Gilligan versus Morgan and, we rely on them.

We do not rely on the mere act of calling out the guard.

Chief Justice Warren E. Burger: You agree with Justice -- I don’t remember whether it was Justice Marshall or Justice Powell, it seems to me, you indicated that negligence in traditional sense would be enough to support liability of the governor, and I thought you had indicated negligence in calling out the guard would be one of those areas.

Mr. Michael E. Geltner: I didn’t mean to say that.

We’re not claiming negligence in calling out the guard.

We’re claiming negligence in the way in which the guard is supervised, in the way in which the governor acts himself, at the scene.

Those are the things that we’re relying upon.

We don’t have to reach out for the question of whether or not the guard was negligently called out here.

Now, Your Honors --

Justice William H. Rehnquist: Mr. Geltner, what constitutional right is it that you clam your client was deprived of?

Mr. Michael E. Geltner: Now, we are claiming that the constitution protects one from being killed or injured by the use of governmental force without due process of law and by due process of law, we simply mean a hearing.

The government to the extent that the governments can injure one or can kill one, it can only do so insofar as it acts legitimately in defense of appropriate interests or it does so through the criminal process.

Now, we rely --

Justice William H. Rehnquist: Do you rely on any of our cases?

Mr. Michael E. Geltner: We rely primarily on the Screws case.

I rely very heavily on the legislative history.

This is precisely what the 1871 Congress was concerned with.

The Civil Rights Act has reached out to cover many areas.

The core of the Congress is concerned with killings and beatings.

We rely on Screws which holds that specifically.

I rely on the dictum in District of Columbia versus Carter and we rely on a long line of Circuit Court opinions which reached the conclusion that the use of governmental force outside of the criminal process is a violation of a deprivation of due process.

The latest opinion which is cited in our reply brief, which explores the area most carefully, is Chief Judge Friendly’s opinion in Johnson versus Glick.

We rely on that case and the cases it cites.

Now if could, we have heard a lot in this case about the facts.

It has been my feeling all along, as expressed by the opinion of the courts below, that somehow they read the newspapers and took judicial notice of the conclusion that everything the guard did was proper and that there was an insurrection or something close to it.

The fact of the matter is there are no affidavits in this case.

There are no such facts.

The affidavits were filed in the Krauss case.

These cases have not been consolidated.

But, in either case, what we have here is a complaint that they’re more than complaints and the newspapers and the opinions that the judges garnished from the newspapers below don’t seem to be to have any bearing on the way in which the precise legal issues ought to be decided here to the extent that there is any documents in existence which has any bearing on the facts of the case.

It is the Stratton Commission Report which is not in the record, it is the only doctrine of which, under the rules of evidence, the Court at this point should take judicial notice.

I did not propose the Stratton Commission Report as a finding effect.

If this -- but, if the Court feels some necessity to go beyond the pleadings, that is the only finding of the governmental agency which has dealt with the subject matter.

Now, there -- we’ve been hearing throughout the case the view that this immunity is necessary because, in the absence of immunity, the court’s opinion flooded with complaints These complaints are all going to be frivolous and as a result of only these frivolous complaints, the government is going to stop.

People are just going to stop acting.

It is not a description of this case.

A member of the Bar of the Federal District Court should not be presumed to be filing frivolous paper.

He signs, Rule 11 requires the complaint to be signed.

He’s subject to disbarment for filing frivolous complaints.

And finally, the argument, when you analyze it, supposedly comes down to the old argument that if you permit this kind of suit, the courts are going to be flooded.

That is precisely the argument that was made in the Bevins case.

Chief Justice Warren E. Burger: I didn’t understand Mr. Brown to be worried about the courts.

I understood him to be concerned about the governors or mayors or individuals, including judges, who would have to take time off from, among other things, from their duties to defend the suit and be in state of apprehension as they approached the decisional process.

Mr. Michael E. Geltner: I understand the distinction, but underlying it is the view that the courts will be flooded by complaints of this kind, which, flooding will then result in lawsuit judicial time, lawsuit attorney’s time, lawsuit official time and intimidation.

In substance it's the same argument that was made in the Bevins case.

It’s the same argument that was rejected.

And further, it requires this Court to make basically a legislative finding of fact and I think the Congress has made that finding of fact.

Congress considered these issues when Congress acted.

And at this point, the Court, in order to reverse the congressional decision, would in effect be making a legislative act in a face of another legislative act without any empirical basis to support it.

So, I think that all of those theories are just untenable as a basis for either the Eleventh Amendment ground or the executive immunity ground.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.

Print this transcript Transcript: 

Argument of Steven A. Sindell

Chief Justice Warren E. Burger: We’ll hear arguments next in 1318, Krause against Rhodes.

Mr. Sindell, you may proceed whenever you’re ready.

Mr. Steven A. Sindell: Mr. Chief Justice, may it please the Court.

I don’t believe that this case can be decided with respect to the questions of law that are presented without a reference, at least some reference point to what the record contains with regard to the facts and I think something has to be said in that regard.

The complaint filed in this action clearly state what would otherwise be a cause of action as at least, I can best understand it.

We have alleged that four innocent students were shot on a college campus without any justification.

We have alleged, members of this Supreme Court, we have alleged that the Governor and the Generals conspired intentionally to deprive these people with the specific intent and bad faith in effect of their rights under the Federal Constitution and under 1983.

We have alleged that these facts are true and that they can be proven.

We were confronted with a motion to dismiss on which as I understand it and notwithstanding any affidavit that was ever filed, and this record contains, if anything, the liberal invocation of the privilege against self-incrimination by some of these defendants.

We have alleged, in these cases, that there was no justification for it and nevertheless, and not withstanding that and based upon what we felt in effect were news media accounts of this incident that the passions of the headlines were substituted for the rules of evidence in this case.

And I quote specifically, where the concurring opinion in the lower court said that “the pleadings clearly contrive to hide rather than disclose the true background of the events” and the predicated causes of action without disclosing their true subject matter, without any evidence before that Court to so find, that is exactly what was said.

The majority opinion in the lower court is infected with statement after statement that there was a riot, that there was an insurrection, that there was a rebellion and members of this Court, even the Governor of the State of Ohio the after it occurred never used a word like that, in his proclamations to justify it, not one word to that effect, nevertheless, the Court has so found.

Now, I’m not suggesting anything except that there is a colorable claim.

What as juxtaposed to these allegations have the defendants set?

They have invoked the privilege against self-incrimination at least nine times in response to material interrogatories and more importantly, if we are going to take judicial notice, let us then take judicial notice of one responsible investigative organ of this nation and that is the Federal Bureau of Investigation, where it was specifically stated and I’m quoting at pages 24 and 25 of our brief things like these.

“We have some reason to believe that the claim by the National Guard that their lives were endangered by the students was fabricated subsequent to the event.

One guardsman admitted that his life was not endangered and that he fired indiscriminately into the crowd.

He further stated that the guardsman had gotten together after the shooting and decided to fabricate the story that they were in danger of seriously bodily harm or death from the students.

No, the guardsmen were not surrounded.

No guardsman claims he was hit with rocks immediately prior to the firing.

There was no sniper.

Some guardsman are known is yet had to be physically restrained from continuing to fire their weapons,” directly quoted.

The people shot in this case were over a football field away.

One man sits here today in a wheelchair for the rest of his life.

And I say that if we are going to substitute in the Court of Law, in the Court of Appeals, news media headlines or whatever predilections of the facts the Court may have for the presentation of evidence in its orderly course then I say that we have really reached the stage where the rudimentary concepts of due process of law have been violated and I think that would be a shocking departure from procedure at least as I’ve always understood it in the past.

We have here a situation where there was no claim of insurrection.

There is no evidence in this case, not only the day after the shooting and having this proclamation did he use insurrection, rebellion, invasion, riot, tumult or any such words, but Your Honors, in addition to that, months later with the advice presumably of competent counsel, my brother here, then he indeed not say anything more than if there were threatened disorders and breaches of the peace in the answers to interrogatories that are part of the record of this Court.

The President’s Commission on Campus Unrest said that this shooting was unwarranted, inexcusable and unjustified.

It is our view that the rules of evidence cannot be supplemented by the factual predilections of a judge reviewing a complaint not a summary judgment motion, but a complaint.

Now, specifically dealing with the question of immunity and I think it’s important that we do that here, in this regard.

In Sterling against Constantin, that Supreme Court was confronted with a situation where a Governor, Governor Constantin had issued a proclamation which was stronger than the one issued by Governor Rhodes.

It said that there was an insurrection.

It said that there was a rebellion.

It said that there was a state of affairs which justified the calling of martial law.

And nevertheless, the District Court went on to find behind those allegations of the Governor in his proclamation that that wasn’t true.

And in fact, no such thing existed except what they characterized as breaches of the peace and when the Governor and the Generals came to this Court and said, “We are immune under the Eleventh Amendment,” this Court specifically held that a Federal Court has ample jurisdiction to determine the veracity of those allegations with evidence properly presented before them.

And I think the case of Moyer against Peabody is clearly distinguishable from this one And I want to address myself to that point.

Indeed, Moyer was a 1983 action and there’s no question about that.

But what is important to recognize about Moyer and again I must return to the facts because I think they’re critical.

In that case, the Governor and the complainant both agreed on two things.

They agreed, number one, without dispute that an insurrection existed and they agreed that the Governor acted in good faith.

Those were stipulated facts before that Court and I quote the language when I say that the Court, the Supreme Court, in its opinion said, “we are here assuming that there was no insurrection, excuse me, that there was an insurrection and that he exercised good faith and the only claim is that he was unreasonable in arresting Moyer under those circumstances.”

Now, this is not such a case.

There is no agreement amongst counsel in this case that a state of insurrection existed.

Instead, we have alleged there was a peaceful gathering on a college campus with bullets intervening, the break up what otherwise was a peaceful gathering on a college campus.

Now, if we can't prove that, then we should lose.

But if we can prove it, it’s not a Moyer case.

We do not agree, as counsel did in Moyer that there was good faith on the part of the Governor.

To the contrary, it is our allegation in this case, and it is our intention to prove that the Governor was personally involved in this situation.

That as Commander-in-Chief, remember this was a trial several days before the Republic Senator, senatorial primary and without editorializing on the validity of the law and order position that he was taking the fact is that that was his position that he advanced in that particular situation and here was threatened disorder and he just wasn’t sitting behind his desk, receiving information of an alarming situation and sending troops out, he went down there to that campus, the day before this incident occurred.

He made a speech in the presence of the Commanding General --

Justice Thurgood Marshall: Mr. Sindell, --

Mr. Steven A. Sindell: Yes sir.

Justice Thurgood Marshall: How far you can go away from this record?

Mr. Steven A. Sindell: I would want to -- I want to stop going away from this record for this reason.

Justice Thurgood Marshall: You’ve been talking about 15 minutes, you’ve gone --

Mr. Steven A. Sindell: Your Honor, I want to go to Court and I want to prove these things and the reason that I bring these things into the case is to, is simply because three of the reviewing judges in this case, three of them, have gone outside the record and refused to believe that the allegations were true.

That’s why I go outside the record not to convince you that what I say is proof as a matter of law, but to convince you that there are allegations which weren’t the right to present evidence in a Court.

Justice Thurgood Marshall: I don’t have to try you, do I?

I don’t have to follow you outside directly to keep that, do I?

Mr. Steven A. Sindell: All you have to do is agree with me that the complaint’s allegation should be taken as true and it seems to me that we’re entitled to prove them.

I would like specifically, in regard to the Eleventh Amendment intention and I’d like to address myself to that for a moment.

It seems to me that the distinction that has been made here between a statute that an unconstitutional action under a statute that is allegedly unconstitutional is different than an action which is just plain unconstitutional because of the nature of the action, really was never intended as a distinction to be engrafted upon the Civil Rights Act at all.

Congress intended to reach the unconstitutional effect if I understand the decisions of this Court.

It says, “Every person who acts not under a statute, not under without a statute, within the statute, every person who acts under color of law to violate the constitutional rights of another is libel for that action.”

Every person and it doesn’t engraft any distinction at all.

The only reason we’re not seeking an injunction in this case and it says in that statute, an action at law equity or other proper redress the breadth is broad.

We can't seek an injunction in this case.

All we have is the available remedy of damages.

That’s obvious from the circumstances and therefore we are well within the terms of the Civil Rights Act and to say that only where a statute exists that’s unconstitutional, can the Civil Rights Act apply as to I think emasculate the very purpose that Congress had in mind which was to reach the State official himself for the affect of what he did.

And this Court has never held for example in dealing with police officers in Monroe against Pape or Egan against the City of Aurora, in any of those cases that because they were acting under color of a valid statute, that therefore for some reason, they were immune.

That would be inconsistent, I think with the entire purpose of the Civil Rights Act.

They were conducting actions not under a statute, but on their own which were unconstitutional, which violated the rights of those individuals, and therefore, they were held inappropriately so by this Court to be within the purpose and intent of the Civil Rights Act.

It seems to me that cases like Ex parte Young, Sterling against Constantin, Griffin against the Board of Prince Edward County, all the way ranging from the passage of the Civil Rights Act right up until the present time have all held that where an injunction is the appropriate form of redress, the Civil Rights Act makes no distinction between damages and injunction.

That issue has been raised here and I don’t think there is any difference because the Sterling specifically holds that an injunction is a more extraordinary remedy and damages is a less extraordinary remedy and other cases if so held as well of this Court and I don’t see the difference.

It depends on the remedy that’s needed.

It would seem on the damage that has been done and not upon the nature of the relief sought.

Congress never intended, as I read the legislative history, as interpreted by this Court, to make a distinction between damages and injunctive relief as to whether or not there’s immunity.

I never read that in any of the decisions and I don’t think it’s supportable by any of the rules of law that have been promulgated by this Court and I’m thinking of cases like Mitchum against Foster, Monroe against Pape, Zwickler against Koota and particularly those various circuits like McLaughlin against Tilendis, Jenkins against Averett was a damage action, many cases under the Civil Rights Act about damages where damage is the appropriate remedy.

And what I think is critical here is that we did bring a case against the State of Ohio.

We sued the State in its own Courts.

We brought that case and we contended that the Doctrine of Sovereign Immunity was unconstitutional in violation not only of the Ohio Constitution, but the Federal Constitution.

Justice Byron R. White: What’s the statute where you would think that (Inaudible) 1983 as an action?

Mr. Steven A. Sindell: Mr. Justice --

Justice Byron R. White: I know you alleged in the complaint intentional wrong, but certainly you think that that would state a cause of action.

How much further would you say would the section reach?

Mr. Steven A. Sindell: It seems to me, Mr. Justice White in this regard and I don’t mean to not answer your question, but I do want to emphasize that we couldn’t have alleged anything stronger, but taking it a step down, it seems to me that perhaps negligence in the tort sense may not be appropriate --

Justice Byron R. White: You would say, it was not -- if it were reasonable for a person to understand that a certain act did not violate the law, he hasn’t been negligent?

Mr. Steven A. Sindell: Well, that’s the tort standard as I understand it, reasonable conduct under the circumstances.

Justice Byron R. White: So it really doesn’t depend on how it final it turns out whether it violated the law or not?

Mr. Steven A. Sindell: Well, I think that it’s critical too as you point out.

I think it’s critical to an interpretation of the Civil Rights Act to ask what the state of mind of the person you’re suing is, in addition to what the result was.

A mere accident can cause a terrible tragedy and yet not create liability.

It is my suggestion to this Court that the appropriate standard that occurs to me for a police type situation is in Jenkins against Averett.

A case before the Fourth Circuit, I believe, where it was held that in that particular case, an act of wanton misconduct, a very high degree of reckless was sufficient to establish a cause of action --

Justice Byron R. White: But they would require at least that?

Mr. Steven A. Sindell: At least a high degree of recklessness.

Yes.

I would say that would be the appropriate standard but I would not suggest to you that a lower standard is not possible.

I’m simply saying that as the state of this case is now, I don’t see how we could have alleged anything stronger and that’s really what I’m suggesting in this particular situation.

I would emphasize that with respect to the Eleventh Amendment claim, Your Honors, that this case is not a case against the State.

The State is not a party to this action.

No money is being sought from the State Treasury at all.

No judgment rendered in this case will require a state official to take any action or prohibit a state official from taking any action.

This is not an action even against State officials.

The present defendants in this case aren’t even officials from the State of Ohio at all and I would suggest that the entire body of Eleventh Amendment law as I read it suggests that in such a case where the individual act is allegedly unconstitutional that that is not barred by the Eleventh Amendment and I think Sterling specifically so holds.

What is being attempted and I think this is the critical distinction here and if I understand the defendant’s argument is that we shouldn’t just consider these things, but we should ask ourselves what will be the effect on the Governor in the future.

How fearful will the Governor be, the Chief Executive be or other executives below him and I might add it goes all the way down to the trigger man in this particular case and the Court held that everyone to be immune not just the Governor, but let’s ask that question.

What will be the effect that the State Government will not be able to operate that people will be fearful that they will have come in and defend lawsuits and so on and so forth, if I understand that argument correctly?

And I would have this to answer to it.

I would say that that argument can be made in every single case under 1983.

There is no case where it cannot be argued that the effect of suing an individual for damages for violating constitutional rights be the Governor or anyone else would not have some effect on their future conduct, would not give them some “pause for concern,” would not inconvenience them in some way, but it is my suggestion that the Act was exactly what Congress had in mind.

That was the very effect that was intended. Congress passed the Civil Rights Act in part to deter this very kind of thing and if we are to give meaning to that enactment, I think we to recognize that the purpose and intent of that particular enactment was to effectuate the deterrence that any tort remedy has and this a congressionally sanctioned tort.

As I understand Section 1983, it is both a compensatory tort action as well as having a deterrent effect and the deterred effect that is complained of here is the very purpose of enactment in the first place and so to say, that because it has an effect, that should be the reason to bar suits.

For that reason alone, it seems to me that that run completely contrary to the whole intent.

It seems to me that if this Court should hold and we’ve sued the State of Ohio which has immunized itself in the state courts, If this Court holds that this too is an action against the State, then we are really left without a remedy.

We have no place to go.

Then this Court has permanently and forever foreclosed any right to appear in a Court of Law anywhere against anyone to test the allegations in these complaints and to establish any form of redress.

This Court will -- “This is it!

This is our last opportunity to have redress.

There will be none.

We can't sue the State in its own Courts and we can't if this Court should hold we can't sue here and we’re without redress.”

And finally, I would like to conclude with the question of immunity as it applies to legislators and judges and that has been raised and I am cognizant of Pierson against Ray and Tenney against Brandhove, and I think this is very important.

First of all, let me say that I have some empathy with the dissenting opinions of Mr. Justice Douglas in those cases that a dishonest legislature if it so alleged and a dishonest judge should be subject to suit, but we have those decisions and they stand as they do now and I suggest this.

That after all a legislative process and a legislator is involved in a deliberative thing, the result of what he does is open to the public.

He has the opportunity, first he must concur with other people.

If his enactment is going to be harmful, a Court can review it.

All of this process can take place and there is full opportunity for the public in the democratic process to participate and so perhaps we can say as does our Constitution that a legislature shall not be examined in any other place and with the judge, the same is true.

It is an open process, presumably, a deliberative one.Before any finality takes place, a Court can review that action, but such is not the case with an executive.

In the case of an executive, you have a situation where the actions maybe or may not be taken with deliberation, but not necessarily with public participation at that time.

The Governor, in theory, in his own chambers and secretly without making it public, open up and decide to wheel the weapons of death without any such legislative or judicial process as a result which the instant action of a bullet terminates a youngster or man or anyone’s life.

Now, it seems to me that the executive immunity is applied in that situation is clearly distinguishable from what occurs with the legislator and with the judge.

And under those circumstances, I suggest to you that to say that they are all in the same kind is contrary to the purpose of the Civil Rights Act itself.

To say that a Governor cannot even be or a General or a guardsman cannot be even subject to inquiry and we -- only has that he acts honestly in this case, we say he can make a mistake, that’s okay.

Is that he act honestly, that is the only claim we make and I suggest to you to say that we can't even inquire into his honesty which has never been subject to any open democratic process is in effect to seriously endanger the citizenry and to give a Governor or Generals an absolute unbridled license without any review or inquiry at all except who knows how long after in the electoral process.

I don’t think that’s the intent of the Civil Rights Act at all and I would like to reserve whatever remaining time I have, unless there are questions, for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Alloway.

Argument of R. Brooke Alloway

Mr. R. Brooke Alloway: Mr. Chief Justice, may it please the Court.

I’d like to address a preliminary remark as to my posture in this case while I am of counsel in both the Scheuer case which has just been heard and the Krause and Miller cases which are being heard together at this time.

I represent Governor Rhodes in his individual capacity and I am fully cooperative with all defense counsel in this case and I endorse my brother, Charles Brown’s argument in all respects.

There are some things that I believe are applicable peculiarly to Governor Rhodes which ought to be brought to the attention of the Court.

I’m prepared to answer questions on any aspect of the case, but my argument in chief will be addressed to the Governor Rhodes’ position primarily.

There has been a great deal of talk about the case of Sterling versus Constantin as it may have limited or may not have limited ex parte Moyer.

I believe it did not limit it in any material respect.

The requirement of Sterling versus Constantin is expressed at 287 United States 399 by virtue of his duty to cause the loss to be faithful executive, faithfully executed.

The executive has appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has a arisen.

His decision to that effect is conclusive.

Now, the way Sterling versus Constantin arose there were stipulations and there was evidence taken which made it appear to the Court, to the District Court which had also had some prior jurisdiction on some of the same controversy that this exercise of discretion on the part of the Governor of Texas was not in entire good faith, that is, it was not within the limits of his discretionary power.

Since he was using it for the purpose of controlling the production of oil, even though the expression was made that there were tumultuous conditions, the proclamation, I might say, in the Sterling case is very similar to the proclamation in the instant case.

That is, I am speaking of the proclamation of April 29th, 1970.

But in this case, the Governor was exercising as executive discretion with respect to calling out the guard and had proclaimed that there were riotous conditions, that there was tumult, that there was danger to persons and property and this, the Court of Appeals and the District Court felt was a matter of judicial notice.

That there was sufficient notoriety in the situation of the campuses in Ohio and indeed throughout the nation in May of 1970 that the Court could not effect to be ignorant of the situation.

My brother, Mr. Sindell, has made a very emotional argument with respect and running along pretty much along the lines of his brief, but he does not get into the actual allegations of the complaint.

If one goes to the actual allegations of the complaint, one must find that there are only mere conclusions as to the part which Governor Rhodes took in the matter other than the fact that he did issue a proclamation and that he did call out the guard.

In order to state a cause of action, here, I can understand that the question might be anticipated just what can a plaintiff do.

Suppose a governor maliciously and corruptly and wantonly and evilly, let us say, decides to call out the National Guard for the specific purpose of extinguishing a life.

If he does that, surely there are facts which could be stated in a complaint other than the bare conclusion that the defendants conspired to deprive the plaintiff or the decedents of their Civil Rights in each of these cases.

There are -- there must be other facts available which could be pleaded which would support that situation.

Obviously, there are not and obviously, there was a situation in which it could not be reasonable to conclude from the allegations of the complaint itself in either of these cases or in any of these cases.

That the Governor conspired and -- evilly, corruptly and we can use other adverbs, to deprive these decedents of their civil rights.

These conclusions are not reasonable under the facts well-pleaded in the complaints.

Therefore, we submit that the judgment of the District Court below and that the judgment of the Court of Appeals and the majority of the two was correct that the 12 (b) (1) motion to dismiss was properly sustained.

We submit further that there are other reasons on which looking only at Governor Rhodes’ particular situation one must conclude reasonably from the allegations of the complaints that there were substantial intervening causes, if anything, in connection with Governor Rhodes’ proclamation cause the death of these unfortunate people.

There were intelligent intervening substantial forces which intervened between the proclamation which is all that is actually shown to have been promulgated by Governor Rhodes.

Therefore, on other grounds, the motion to dismiss would properly have been sustained.

I submit also that the question of whether a state employee, if a National Guard can be an employee or a state officer, whether the Doctrine of respondeat superior applies and in this instance, we submit that there is no authority for applying the Doctrine of respondeat superior so as to bring Governor Rhodes within the ambit of a proper action against him in these cases.

And for all of those reasons and for the reasons, my brother, Mr. Brown has set forth, I would say that Governor Rhodes is in a fortiori situation with respect to all of the defendants.

We must bear in mind that there are only seven defendants in this case.

There are, as Mr. Sindell refers to them, the trigger man, there are no persons alleged to have been trigger man in these instances.

And those must be taken as admissions in the briefs and as judicial admissions that there are no persons who are so charged in this case.

So, with respect to Governor Rhodes, any liability which applies to him must be on the Doctrine of respondeat superior which we suggest is clearly not applicable.

I have nothing --

Justice Potter Stewart: As I understood the complaint, the allegation was that he ordered out the National Guard onto that campus at a time when he knew -- when he himself knew or should have known that arming them with live ammunition and sending them there in their state of training was an imminent danger to the lives of the students on that campus and that’s alleging personal culpability on his part not on any Doctrine of Respondeat Superior.

Isn’t that correct under this complaint?

Mr. R. Brooke Alloway: I would say if the arming of the National Guard is in and of itself an act on his or is a culpable act, yes just as he is personally charged with having issued the proclamation which called out the guard.

Yes, he is, if that is a culpable act, he is culpable.

I submit that neither of those acts is one on which culpability can arise because the training of the guard is and this is a matter of judicial notice and is in the record, that the training of the guard is under the supervision of the United States Government and was at that time.

The training of the guard was a responsibility of the United States Military Officers and the duty, the constitutional and statutory duty of Governor Rhodes was to call out the guard and the arming of the guard and the actions of the guard were the responsibility of the individuals and of any commanding officers who issued commands.

I would submit that the act of calling out an armed guard is the risk that one takes anytime a National Guard unit is called out.

It is within the realm of possibility that in the discretion of officers having discretion, there may be live ammunition used.

Justice Potter Stewart: Because we’re dealing Mr. Alloway, are we not, with the allegations of the complaint?

Mr. R. Brooke Alloway: Yes.

Justice Potter Stewart: And we, for the purposes of this case in its present posture under well settled principles of law, we must assume they’re all true.

All those well pleaded allegations are true in facts, that’s correct, isn’t it?

Mr. R. Brooke Alloway: I think I should place the emphasis on the words well-pleaded.

Justice Potter Stewart: Yes, but what I said is generally accepted.

Mr. R. Brooke Alloway: Yes, it is certainly an accepted proposition, yes.

And I would place strong emphasis on the matter of the words well-pleaded because I would submit that this Court should not approve retrospectively or prospectively the irresponsible use of inflammatory language in pleadings, and therefore, then take the allegations as true.

Justice Potter Stewart: Of course, the claim of your brother on the other side is that a very serious error was made by the Court of Appeals when they disregarded the allegations of the complaint and instead called upon what they understood to be their personal knowledge or judicial knowledge of what the true facts were and that the majority of the Court of Appeals therefore violated what you and I have just agreed is a fundamental, very elementary principle of law that on a motion to dismiss, the well-pleaded allegations of the complaint are assumed to be true?

Mr. R. Brooke Alloway: Plus, if Your Honor please, matters of which the Court can properly take judicial notice and the only fact which I’m suggesting --

Justice Potter Stewart: Well, as far as that go.

I can understand that if a complaint depended upon the plaintiff's allegation and he was Napoleon Bonaparte, for example that a Court could assume that probably wasn’t true, but beyond the extreme cases like that, how many exceptions are there to this rule?

Mr. R. Brooke Alloway: I would say, Your Honor, that one exception to the rule would certainly be the situation of the campuses in the State of Ohio and in the, over the country generally in May of 1970.

And that there were at those times riotous situations where unusual measures had to be taken.

Justice Potter Stewart: Well, that may well all be very true, as a matter of fact, but we have here a lawsuit in which a complaint was filed, making certain allegations which as I read them are not emotionally charged allegations.

They are very serious allegations and a motion to dismiss.

What you say may all be very true, as a matter of fact and they all come out in the trial, but this is a motion to dismiss the complaint?

Mr. R. Brooke Alloway: That is correct.

Justice Potter Stewart: And isn’t -- didn’t the Court err in saying, “Well, whatever the complaint may say, we know that the real facts are such and such and therefore, the District Court was correct in dismissing the complaint?

Mr. R. Brooke Alloway: If the Court did commit error in respect of its statements, nevertheless, the judgment of the Court taking the narrowest construction of any judicial notice which it had a right to take was sufficient on which to dismiss the complaint.

I would say, Your Honor, that for instance, the proclamation of Governor Rhodes is a document of which judicial notice could and should properly have been taken judicial notice.

And that the facts well-pleaded plus properly judicially noticed facts are sufficient.

Now, I would suggest, for instance, if the Court please, that if we’re going to take facts well-pleaded and let’s say that we have to allege in order to plead a cause of action that there were no roving bands of men bent upon destruction of property and endangering life, that allegation might have been made, but it was not made.

That would not have been a conclusion.

That would have been a statement of fact.

I would submit that it’s a conclusion that the plaintiff’s attorney could not in good conscience have made, but it would be a statement of fact that would be one.

If we would take for instance a statement that the ROTC building did not burn down the night before in the City of Kent, that would be an allegation of fact.

It would not be an allegation which the plaintiff could in good conscience make, but it would be an allegation of fact which would support the complaint beyond the support that it needs, beyond the support which it does not have.

Chief Justice Warren E. Burger: Well, are you saying that the Court could take judicial notice of the specific item you’ve just mentioned, namely the burning of the ROTC building?

Mr. R. Brooke Alloway: I would say, if the Court please, that the Court could take judicial notice of generally disorderly conditions in the area of Kent, Ohio including the Kent University campus.

Therefore, we are in the situation where Sterling versus Constantin applies to make the action of the Governor of Ohio not reviewable.

If not being reviewable, I would say further that the natural consequences of his act are also not reviewable under the Doctrine of Executive Immunity.

Under that, the Court had sufficient before it to make those determinations of fact in a general way.

Whether or not the Court could take judicial notice of the specific fact of the burning of the ROTC building, I would be of the opinion that it could.

That was a widely-known fact, that was perhaps almost as widely-known effect, certainly as widely-known in the Midwest area as the killing of Donald or Lee Harvey Oswald by Jack Ruby.

The burning of the ROTC building was a notorious event viewed by millions of people.

Justice Thurgood Marshall: But could the court take judicial notice that there was “insurrection” on the campus in Kent?

Mr. R. Brooke Alloway: I would say that the Court might do so, although I don’t think it’s necessary for the Court to do that because insurrection is not a sine qua non of the proper exercise of the discretionary power of the Governor to call out the guard.

Justice Thurgood Marshall: But my point is, is it outside of the judicial notice?

You take judicial notice that Kent University there or it has 18 buildings, but insurrection is a rather complicated legal term --

Mr. R. Brooke Alloway: It is a --

Justice Thurgood Marshall: -- which is the basis of the lawsuit.

Mr. R. Brooke Alloway: It is a very complicated term.

I don’t think it is a term which we necessarily must find in order to find the judgment of the Court of Appeals and of the District Court.

Justice Thurgood Marshall: Well, would all of the other terms that are on the Governor’s proclamation, can the Court take judicial notice that they are correct?

Mr. R. Brooke Alloway: I’m sorry.

I don’t believe I follow that.

Justice Thurgood Marshall: Didn’t the proclamation say there is insurrection and this and that in the Governor’s proclamation?

Mr. R. Brooke Alloway: Yes.

Justice Thurgood Marshall: Well, can the Court take judicial notice of those statements, are facts that are true?

Mr. R. Brooke Alloway: I will have to confess to you, I have not thought about it and I think that I would say, probably not.

That Your Honor has just said that the term insurrection is a very complicated term which is widely embracing and has many legal consequences.

Chief Justice Warren E. Burger: That’s a legal conclusion not a fact?

Mr. R. Brooke Alloway: It is a legal conclusion and not a fact, that’s correct.

Justice Thurgood Marshall: But in this way, you got positive allegations on one side and on the other side, all you have is the Governor’s proclamation, right?

Mr. R. Brooke Alloway: Well, we have the Governor’s proclamation, but we have some specific facts in the Governor’s proclamation that in the territory of northeastern Ohio, there were roving bands of men who were committing acts of violence.

Justice Thurgood Marshall: Well, can the Court take that as true?

Mr. R. Brooke Alloway: I think the Court can take that as true.

It is a fact.

It is a fact as distinguished from a conclusion.

Justice Thurgood Marshall: So, whatever the Governor says is a fact but whatever the petitioner say is not, where to the contrary the rule say that you must accept all well-pleaded facts in one paper.

It does say any, about that other paper.

Mr. R. Brooke Alloway: Again, I respectfully --

Justice Thurgood Marshall: Am I right?

Mr. R. Brooke Alloway: -- emphasize the words well-pleaded and I submit that if the Court will examine each complaint, it will find that the “facts” are conclusions.

Justice Thurgood Marshall: When the Court will (Inaudible) you would only taken well-pleaded?

Mr. R. Brooke Alloway: Yes.

Justice Thurgood Marshall: Right?

Mr. R. Brooke Alloway: That’s true.

I have nothing further.

Chief Justice Warren E. Burger: Thank you.

Mr. Sindell, do you have anything further?

Rebuttal of Steven A. Sindell

Mr. Steven A. Sindell: Yes, Mr. Chief Justice, I do.

First of all, I would like to indicate to the Court, if the Court will examine the proclamations of the Governor, it will find that the one that is applicable to the Kent State incident which is the main Fifth Proclamation after it occurred does not mention anything roving bodies of men.

That referred to a truckers’ strike where there may well have been roving bodies of men and that had nothing to do with Kent State.

It didn’t even include Portage County although it included vast other areas of the State of Ohio.

The fact is that the Governor’s proclamation at no time even mentions the word insurrection.

It doesn’t even, if we want to talk about well-pleaded facts, the Governors’ proclamation has no facts which would give rise to a conclusion that there was a state of insurrection or riot of any kind.

It simply refers to disorders.

Now, I want to be perfectly clear about our contention here.

It is not our contention that the Governor is liable under the Federal Civil Rights Act because he called out troops.

That is not our claim.

We are claiming and what has been read by my brother in connection with Sterling against Constantin.

What hasn’t been read is this, while the calling out of troops is unreviewable according to that case, it goes further and it says, it does not follow from the fact that the executive has this range of discretion deemed to be a necessary incident of this power to suppress disorder.

That every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the Courts otherwise available is conclusively supported by mere executive fiat.

The contrary is well-established.

What are the allowable limits of military discretion and whether or not they have been overstepped in a particular case are judicial questions and that is what we are contending in this case.

And I would like to address myself to this matter of pleadings and what is well-pleaded and what isn’t pleaded.

I understand, at least, as a trial practitioner who engages in some amount of litigation, I have always understood that the basic concept is notice to pleading.

That we are not required to plead volumes of evidence or any evidence really that I feel it was improper to plead evidence as such and that largely, the federal rules are designed to confine the pleadings to the general allegations.

Now, we have alleged a conspiracy to engage in a direct act which involved deaths of people and that’s included in that concept those orders and judgments and statements in their backs that we believe exists in good faith to back it up.

Now, what I’m simply suggesting is this.

If it wasn’t well-pleaded and not for my brother, Mr. Alloway, then he had the prerogative under the Rule 12 (e) to tell me that and to make a motion to make definite and certain and to ask me to be more specific if I didn’t plead it well enough and he didn’t do that.

He didn’t ask me for more facts.

He didn’t say, “It’s so vague that it’s not well-pleaded.”

He didn’t say, “We don’t have notice.

We don’t know what you’re talking about.”

Instead, he filed a motion to dismiss and thereafter, invited the Court to conclude.

Chief Justice Warren E. Burger: You don’t suggest that he has an obligation to ask you for more.

He can stand on your complaint and if he thinks it’s infirm, then that’s what the defense counsel does, isn’t that true?

Mr. Steven A. Sindell: You’re right, Mr. Chief Justice Burger.

He has every right to suggest that it’s infirm and I claim that where we had specifically alleged and I quote from the complaint, “All acts herein mentioned including everyone of them, the shooting and everything else were done individually and in conspiracy by these defendants with the specific intent of depriving plaintiff and plaintiff dissidents of their rights to due process and equal protection.

I contend that if that doesn’t state a violation of constitutional right, then nothing does.

Now, if he wants it more specific than that, then I suggest that he ask what he wants, that he tell me that it’s to vague and that’s the question of pleading.

But what I have said here in its allegation form and in its notice form is well-pleaded in the concept of the federal rules of civil procedure to give notice And let’s be practical about it.

I sit in an office that has four walls and I look at what facts I have at the time I plead and I know that the Governor was down there, that he was involved in this event, that he was personally present, that he was giving orders, that he was doing a lot of things.

I’m not the FBI.

I don’t have those materials available.

I only have what I know and it seems to me that on the basis of all those orders that were apparently given when he stood there and said publicly that we should eradicate people and that these people should be eradicated and that and so on and so forth, and I don’t want to get to far off the record except to say that when all those things were present before me, all I can say is, “I thought that there were some basis to make the allegation” and I think we have a right to ask him some very specific questions --

Justice Byron R. White: I did not (Inaudible) to say State eventually, locally wants to (Inaudible)

Mr. Steven A. Sindell: Absolutely.

Justice Byron R. White: Afterwards (Inaudible)

Mr. Steven A. Sindell: Absolutely, he was running for political office at the time.

He was running at a law and order platform.

I would like to ask him some questions.

What orders did you give to your guardsmen?

Justice Byron R. White: (Inaudible)

Mr. Steven A. Sindell: I’m sorry.

Justice Byron R. White: (Inaudible) supposedly concluding that he was malicious (Inaudible) running for office?

Mr. Steven A. Sindell: No.

Not because he was running for office because of his desire to be elected and to demonstrate.

I’m saying, allegedly to demonstrate to the electorate.

Justice Byron R. White: You haven’t stated maliciously.

Mr. Steven A. Sindell: As I unders -- did I have?

I had the basis for saying that he was malicious in the concept of malice that to --

Justice Byron R. White: Mostly (Inaudible)

Mr. Steven A. Sindell: Right.

Justice Byron R. White: I tend to believe this regard to malice.

Mr. Steven A. Sindell: Yes.

It seems to me, Your Honor, and again, the concept of malice is involved here vindictiveness, it seems to me that when orders are given in order to further a political goal which involves the risk of injury to an individual and perhaps an intent to create a demonstration that this particular were going to show the people that I stand for one order notwithstanding the risk to the lives of the people involved, I think that comes within the concept of certainly wanton and willful and if you will, malice.

I don’t think that --

Justice Byron R. White: (Inaudible)

Mr. Steven A. Sindell: That’s what I would like to ask him about.

That’s what I would like to get into it in this case.

Chief Justice Warren E. Burger: If you like to find out whether your allegations are true?

Mr. Steven A. Sindell: Well, [Laughter Attempt] I’d like to ask him the questions that pertain to the allegations which I think have been reasonably filed.

Yes, and I think there’s a basis for so doing.

Chief Justice Warren E. Burger: Very well.

Mr. Steven A. Sindell: I have nothing further.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.