Jeannette Rankin Brigade v. Chief of the Capitol Police ( 1969 )

FAHY, Senior Circuit Judge:

The appellant Brigade was an ad hoe group of some 5000 ladies who, together with 58 plaintiffs as individuals, gathered in Washington January 15, 1968, the opening day of Congress, to march in a body from Union Station to the Capitol, and there to assemble across the East Front Plaza. This demonstration was to be in protest against the country’s involvement in Vietnam. On January 2, 1968, the Chief of the Capitol Police, an appellee, had advised their representative that to march in this manner was prohibited by 40 U.S.C. § 193g (9 D.C. Code § 124), set forth in the margin.¹ The ladies were also advised, as hereinafter set forth more fully, how they might proceed without interference. This was unacceptable. They accordingly filed suit in the District Court to enjoin appellees, including the Chief of the Capitol Police, from enforcing Section 193g against them and members of their class, as he threatened to do. They alleged that Section 193g was repugnant to the First Amendment “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” They moved for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2282 and 2284, and also requested a judgment declaring 40 U.S.C. § 193a et seq. (9 D.C.Code § 118 et seq. See note 1, swprct.) to be unconstitutional. The District Judge, deeming the constitutional question to be insubstantial, denied the motion for a three-judge court. In the same order he also denied all injunctive relief and dismissed the complaint. The present appeal is from his order.

Appellants were permitted to march to the rear of the Capitol at the foot of the hill there. Miss Rankin, their leader, and a 15-woman delegation, presented their petitions to the Speaker of the House and to the Majority Leader of the Senate.²

After the demonstration and presentations were made as permitted the Brigade disbanded, with announcement of the intention of the ladies to return to their communities “to mobilize women on all levels to exercise their political power to reshape American society.”

At oral argument on appeal counsel for appellants abandoned their request for present injunctive relief, represented to the court that no particular parade was planned, and urged this court to declare Section 193g unconstitutional on its face. Due to the position thus stated, counsel contends a three-judge District Court need not be convened. She stated her position to be, however, that the allegation of the complaint that appellants intend to return for demonstration purposes individually and as an organization is to be taken as true, and that should it be necessary an injunction based on this court’s declaration would then be sought. Appellees contend that since the Brigade has dispersed and neither it nor any individual appellant has any present intention of taking any step the statute would inhibit, the case has become moot. They also urge that if the case is not moot then dismissal of the complaint by the single District Judge should be affirmed since the constitutional question is insubstantial, and therefore, the motion for a three-judge court was properly denied.

We hold (1) that the case is not to be dismissed by this court as moot; (2) that the constitutional question is not insubstantial; and (3) that a three-judge District Court should have been convened and should now be convened to dispose of the several facets of the case hereinafter outlined, as they might appear at the hearing on the remand.

1. Firstly as to mootness. While the events of January 15, 1968, when the Brigade assembled here, have long since ended appellants have been denied, by reason of the challenged statute, rights of assembly and petition in a manner they claim the Constitution protected. The statute as enforced continues to be a bar to assertion of those rights, which the complaint alleges will be reasserted, and at argument counsel for appellants stated that injunctive relief would then be sought again if necessary. Should appellants seek to resume exercise of the claimed rights the availability of timely judicial action to avoid interference cannot be predicted. The rights asserted, imbedded in the Constitution, are of a continuing character, and the Vietnam problem remains. As in Southern Pacific Terminal Co. v. I.C.C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310, the questions involved are continuing and “their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review * *

The rights of peaceable assembly and petition at the seat of government have more than ordinary significance. The history of enforcement of the challenged statute, with sound reason to view the controversy initiated by appellants to be of a continuous character, persuades us on the present record that the justiciable character it originally assumed has not dissolved. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1; Carroll v. President and Commissioners of Princess Anne County, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325. On the remand, however, which we shall order for reasons later to be stated, we do not foreclose the issue of mootness from consideration by the District Court as the situation may then appear.

2. Since we do not dispose of the case as moot we have the question whether it is within the jurisdiction of a three-judge court convened under 28 U.S.C. § 2284. Insofar as this depends upon the substantiality of the constitutional question we think the case was one for a three-judge court. The broad sweep of Section 193g, and the absence of more definite legislative guidelines to govern its application, raise not insubstantial questions whether the First Amendment rights asserted were invalidly infringed by the invocation against appellants of that section of the statute. Carroll v. President and Commissioners of Princess Anne County, supra.; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Cox v. Louisiana, 379 U.S. 536, 559, 85 S.Ct. 453, 476, 13 L.Ed.2d 471, 481; Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149. Dismissal of the complaint by a single District Judge accordingly was inconsistent with 28 U.S.C. § 2282. The operation of an Act of Congress as repugnant to the Constitution was sought to be enjoined and the constitutional challenge was not insubstantial.³

3. The question remains, however, whether counsel’s position stated at argument of the appeal, that only a declaratory judgment at the hands of this court was sought, removed the case from the embrace of Section 2282, notwithstanding the constitutional challenge continues. This requires consideration of Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. The case was an action by Mendoza-Martinez (1) for a declaratory judgment firstly that he was a citizen, secondly that Section 401(j) of the Nationality Act of 1940, 58 Stat. 746 (1944), under which the Government claimed his citizenship had been lost, was unconstitutional, and (2) for voiding of all orders of deportation directed against plaintiff. Section 401 (j) provided that one who remained outside the United States to avoid military service thereby lost his American citizenship. Plaintiff had been found to be factually within this provision. For this reason the Government had ordered him deported as an alien. A single District Judge, however, held Section 401 (j) unconstitutional. When the case reached the Supreme Court it was considered as a threshold question whether the proceedings should have been heard by a three-judge court convened pursuant to 28 U.S.C. § 2282. The Court answered in the negative. It pointed out that the original complaint asked for no injunctive relief, and none was granted. An amended complaint, which raised an issue of collateral estop-pel, did include a prayer that the court enjoin and restrain defendants from enforcing deportation orders against plaintiff ; but the Court thought it clear from the stipulation which governed the course of the trial that the issues were framed so as not to contemplate any injunctive relief. The relief granted was a declaration that the challenged section was unconstitutional on its face and as applied to the plaintiff, and that he was a national and citizen of the United States. The Court stated:

Thus, despite the amendment to Mendoza-Martinez’ complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401 (j) was at issue, § 2282 was not in terms applicable to require the convening of a three-judge District Court.

Whether an action solely for declaratory relief-would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that in the present case the congressional policy underlying the statute was not frustrated by trial before a single judge.

372 U.S. at 154, 83 S.Ct. at 560.

Our case seems to us to be quite different. Not only was injunctive relief sought, but plaintiffs properly moved for a three-judge court. The case fell within the jurisdiction of such a court. Injunctive relief “was material to the disposition of the case” as it was presented to the District Court. Moreover, should a declaratory judgment now be issued that Section 193g is unconstitutional it would have a restraining effect comparable to injunctive relief; for ap-pellees might well deem themselves restrained in the - day to day operation and enforcement of the statute. The fact is the court itself might well deem an in-junctive order appropriate to accompany its declaration, as originally sought. In contrast, the Mendoza-Martinez decision, “which in form was for declaratory relief and which in its agreed substance did not contemplate injunctive relief,” was a declaration of the plaintiff’s status as a citizen, though as a necessary incident to such declaration the statute invoked by the Government was held to be unconstitutional, as, for example, in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435, and comparable cases. There is the solid distinction between our case and Mendoza-Martinez, Nestor and comparable cases,⁴ that this case clearly should have been disposed of under Section 2282. The allegations of the complaint which gave it that character remain, and even the representations of counsel in argument on appeal, upon which reliance is placed to remove it from those sections, include the representation that injunctive relief is contemplated to make effective the declaration of unconstitutionality when appellants or some of them reassert the rights they claim, which leads us now to hold that the case is not moot. It accordingly seems to us that this litigation, which began as a three-judge court case, has not lost its character as an effort to place out of operation as repugnant to the Constitution an Act of Congress protective of the national legislature in the environs of its national home. We accordingly shall remand the case for disposition by a court to be convened under Section 2284. No time element thus involved affects the question of jurisdiction. Moreover, no present urgency appears.

Other matters we think need mention. The authority of a federal court to issue a declaratory judgment is discretionary. In addition, such a judgment will not be rendered unless the case has the “immediacy” and “reality” essential to the exercise of this particular authority.

As to the court’s discretion, see Alabama State Federation of Labor v, McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725,⁵ cited approvingly in Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 284 n. 47, 89 S.Ct. 518, 21 L.Ed.2d 474, where Zemel v. Rusk, 381 U.S. 1, 18-20, 85 S.Ct. 1271, 14 L.Ed.2d 179, is also cited. In Zemel v. Rusk, it is said inter alia:

* * * the Declaratory Judgment Act, 28 U.S.C. § 2201 (1958 ed.), “is an enabling Act, which confers a discretion on the courts rather than an absolute right upon the" litigant.” Public Serv. Comm’n of Utah v. Wy-coff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 239, 97 L.Ed. 291.

See, also, United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L. Ed. 754.

As to whether, aside from the question of discretion, the case retains such “immediacy” or “reality” as justifies the rendering of a constitutional decision, see Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113. At an earlier stage of the Zuñckler litigation, Zwickler v. Koota, 389 U.S. 241, 244 n. 3, 88 S.Ct. 391, 19 L.Ed.2d 444, and see id. at 255, 88 S.Ct. 391, the Court had remanded the case to the District Court for further proceedings which would include consideration by that court of whether “the prerequisites to a declaratory judgment” had been adjudicated. On the remand the District Court had decided this as the facts appeared at the time the complaint was filed. When the case returned to the Supreme Court, however, as Golden v. Zwickler, supra, the Court held this was erroneous:

The proper inquiry was whether a “controversy” requisite to relief under the Declaratory Judgment Act existed at the time of the hearing on the remand.

394 U.S. at 108, 89 S.Ct. at 959. Saying “we now undertake that inquiry,” the Court pointed out as follows the prerequisites for constitutional adjudication, including such adjudication by declaratory judgments:

“[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, ‘concrete legal issues, presented in actual cases, not abstractions,’ are requisite. This is as true of declaratory judgments as any other field.” United Public Workers of America v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947). “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

394 U.S. 103, 108, 89 S.Ct. at 959. Further, said the Court:

It was not enough to say, as did the District Court, that nevertheless Zwickler has a “further and far broader right to a general adjudication of unconstitutionality * * * [in] [h]is own interest as well as that of others who would with like anonymity practice free speech in a political environment * * The constitutional question, First Amendment or otherwise, must be presented in the context of a specific live grievance. In United Public Workers of America v. Mitchell, supra, at 89-90, 67 S.Ct. at 564, we said:

“The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.”

394 U.S. 103, 109-110, 89 S.Ct. at 960.

While the Supreme Court itself concluded the prerequisites for issuance of a declaratory judgment had not been established on the remand, it did so on the record made in the District Court on the remand. The posture of our case differs. We have no such record; and the issue of immediacy and reality — of aliveness of the appellants’ grievances— should be determined initially by the District Court on the record at the time of the hearing on the remand, subject to such review as might be appropriate.

Since the case in our view is not moot and falls within the jurisdiction of a three-judge court we shall remand it for the convening of such a court, the questions of mootness and what adjudication and relief should be granted to be determined by that court on the basis of the situation which is shown to exist at the time of the hearing on the remand.⁶

It is so ordered.

1 . § 193g. [United States Oapitol Grounds;) parades or assemblages; display of flags It is forbidden to parade, stand, or move in processions or assemblages in said United States Capitol Grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement, except as hereinafter provided in sections 193j and 193k of this tide.

40 U.S.C. § 193g (9 D.C.Code § 124). The Capitol Grounds are described as follows:

The United States Capitol Grounds shall comprise all squares, reservations, streets, roadways, walks, and other areas as defined on a map entitled “Map showing areas comprising United States Capitol Grounds”, dated June 25, 1946, approved by the Architect of the Capitol and recorded in the Office of the Surveyor of the District of Columbia in book 127, page 8, including all additions added thereto by law subsequent to June 25, 1946,

40 U.S.C. § 193a (9 D.C.Code § 118). From the map referred to in the section, the main area of the Capitol Grounds is bounded on the north by Union Station, extends some three blocks south of the Capitol to include the fountains beyond the House Office Building, a similar three blocks west to the base of Capitol Hill and three blocks east to the rear of the Library of Congress annex.

2 . Appellants had also been advised by ap-pellee Chief of Capitol Police that,

if they came on to the Capitol grounds in groups of ten to fifteen persons and remained in such small groups all of them would be allowed on the grounds just as any other group of persons would be. [They would be] free to visit the members of Congress, present whatever petitions they desired and could go anywhere else on the Capitol grounds that other members of the public could go upon.

Further,

that the only prohibition was that they not march and assemble as one large group on the Capitol grounds.

They were also informed that although Louisiana Avenue was within the Capitol Grounds they could, pursuant to 40 U.S.C. § 193k (9 D.C.Code § 129), use it for their mass gathering, or that a permit to use Union Square could be obtained from the National Park Service.

3 . That the statute, though geographically applicable only to the District of Columbia, is an “Act of Congress” within the meaning of 28 U.S.C. § 2282 seems now to be settled. Shapiro v. Thompson and companion cases, 394 U.S. 618, 625 n. 4, 89 S.Ct. 1322, 1326, 22 L.Ed.2d 600. True it is, the statute affects only a part of the District of Columbia, the Capitol Grounds, but this limited geographical scope is outweighed, in considering the embrace of Section 2282, by the importance to be attached to an Act of Congress enacted to protect the national legislature at the very seat of its operations.

4 . See, e. g., Petersen v. Clark, 285 F.Supp. 698 (N.D.Cal.); United States v. Southern Railway Co., 250 F.Supp. 759, 766-770 (D.S.Car.), rev’d, 380 F.2d 49, 55 (4th Cir.). See also Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 13-20, 76-79.

5 . Chief Justice Stone’s opinion for the Court in Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 13S9, points out that “It has long been [the Court’s] considered practice not to decide * * * any constitutional question in advance of the necessity for its decision,” citing, Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 553, 9 L.Ed. 773; Trade-Mark Cases, 100 U.S. 82, 96, 25 L.Ed. 550; Liverpool, N. Y. & P. S. S. Co. v. Emigration Comm’rs, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899; Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482; Arkansas Fuel Oil Co. v. Louisiana, 304 U.S. 197, 202, 58 S.Ct. 832, 82 L.Ed. 1287. And see Chief Justice Warren’s statement of this principle in Thorpe v. Housing Authority, infra.

6 . While the problems of discretion and of the prerequisites for issuance of a declaratory judgment are separate, they are not unrelated, the latter bearing upon the former. Moreover, the facts with respect to mootness may well be relevant to the Zwichler standards for declaratory judgment adjudication.