Petition for Writ of Certiorari — Bridges v. Davis

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‘Supreme Court, U.S.

FIL ED

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Page Court af th Batted Stes

OcToBER M 1971 .

' _ No. Ti S 2 ci 2 4.

a — >

REVEREND Us2t 8Bnpaes, et“al., |

| 7 :beweeanee,

—

— Apsara D. C. Davis ef aly 4

_ Respondents. wm:

PETITION FOR A WRIT OF. CERTIORARI TO THE —

‘UNITED STATES COURT OF APPEALS | es ad

FOR THE NINTH CIRCUIT =

— L. Wuir ulate

American Civil Liberties ; Fie

Union Foundation

¢ 156 Fifth Ayenue

' ‘New: York, New York 10010

o ; EDWARD R. BENDET

333 Queen Street

Honolulu, Hawaii 96888

JoHN §. EDMUNDS

1149 Bethel Street

Honolulu, .Hawaii 96813 -

. Brook Hart ; .

. 1149 Bethel Street *

- Honolulu, Hawaii 96813

Attorneys for Petitioners

. - - i % e a : = Fb ae

. . | ‘ ,

INDEX.

‘PAGE

. Opinions Below .. 3 es ve a sapee jon ae

Jurisdiction anand ‘ : — roads a

Question ‘Presented . > i.

~~ Statutes and Regulations Involved lint rr

iahageaal ‘of the Case moe , ae . ee 4

| Reasons for Granting the Writ Skene |

; & The Court should defing the proper scope of ie

; rule. in Cafeteria & Restaurant * Workers ve

McElroy. a wetncenaretemees SA |

2: The order barring petitioners Bridges and

. Jones from giving: religious ‘counsel ta the peti-

tioning military prisoners at tlieir request. Vio- -

_ lates the First Amendment‘in the absence of

evidence that Bridges and Jones are a clear and

7 sae — to military. prison discipline .. 14

Concxusion .

i ,

_ APPENDIX: 5 :

_ Opinion of the United States Cpurt of Appeals _ =

Dated June 18, PT is ; las

Opinion of the United States Couit of —-

Dated August 27,1971 . ma ion ae

ee, oa

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| ‘2 SE. PAGE = :

: ° Sadgment of the United States Court of Appeals )

-for the Ninth Cireuit wii 12a

- Opinion of the United States District mee inal l4a .

A udgment of the United States District Court - 268

17 -

- Cafeterig & Restaurant Workers v. MeElroy, 367 ico

886 (1961) ....... ; ~~ S008, OS, 08

ped, Cooper v, Pate, 382 F.2d 518 (7 th Cir. 1967), on remand

; . from: 378 U.S. 546 (1964) es teeetneeeeninnn nn BG

te Cox Vv. Lauisiana (I), 379 U.S. 536 (1965) eens ‘17

7 awirds v. South Carplina, 372. U.S. 229 (1963) .

" \ Follett v. McCormick, 321 U.S. 573 chen’ Seeliies oe 16

. Fortune Society v. paiheme, 319 F. Supp. 901 (SD. °°

a N.Y. 1970) ‘ m 17°

Founding. Church of ices V. —_— States, 409

. F.2d 4146 (D.C. Cir. 1969) .. st ) AT:

ee — v. Rhode inland, 345 U. S. 67 (1953) ....... au 17

Jackson + . tein, 400 F.2d 529 (5th Cir 1968) ae 7

; Kauiffinan Vv. Secretary of the Air. Fores, 415 F.2d 991 |

(D.C. Cir.’ (1969) cadude — 15-

: Kiiskila v. Nichols, _ F.2d 745 (ith Cir. 1970). Seni 11, 12,

- _” °14,17,18

Knuekles v. Prasse, 302 F. Supp. 1036 (E.D. Pa. 1509) 16

) r :

| iii:

ee ee eee : 7 Se PAGE

. Long v. Paiker, 390 F.2d 316 (3rd Cir: 1968) vie 7, 18°

“ e gears af ‘ .

“o°Gallaban Vv. Parker, 395 USS. 258 (1969). san a ae

Pierce v. La Vallee, 93 F.2d 933 (2d. Cir. 1961) Lge ie

Street v. New. York, 394 US! 516 (1969) ms NS Se

United States v. leiden: 418 F.2d 688. (4th Cir...

oS I Sign ce eee. * cscincieNhy ty LT

_-_ United States v. Flow er, Slip Op. No. 31143 (Sth Cir,

Nov. 8, 1971) perenne iclevsiesk ly AD

United. oe Vv. Jelinski, 411 F. 2 4AT6 2... essences th

” Walker v. Blackwell, aii F.2d 93 (oth Cir: 1969) 72s. 15:

# Washington Vv. Lee, 263 F: Supp. 327 (M.D. Ala. 1966), set

ele gf’ d per curiam, 390 U.9§. 333 (1968) 2... eceeneeneee ‘. ob.

Weissman v. United States; ied Fr. 2d 271 (10th Cir.

a Sainentntnene ai aan) ost ; senesctiatiineed hy B

. Wah’ v. Resor, 431 F. 2d. 691 (4th Gir, 1970) ....... 214 <7

Yotinger Vy. Gilmore,’ 40 U.S.L.W: 4003. sas S. Nov em- -.

AE OE oot epson tee Macnee ROS

: Canciones Provisions:

| United States Constitution

- First Amendment %........... a Reeeeomae aaa ae

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Regulations: :

Section 07024, JN

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ay PETWIION FORA A WRIT OF CERTIORARI TO THE

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“Rupee Court of the Huited States.

OcTOBER ay 1971 |

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; REVEREND Gen Brivais, et al.,

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at 3 a “Apmirat D. @: Davis, et al.,

‘Respondents.

—

UNITED STATES. COURT OF APPEALS

FOR ‘THE NINTH errr

“The pettiioness pray that a writ of nahinnuiet issue to -

review the judgment of the United Statés Court of. Appeals

- for the Ninth Circuit, entered on Jim ine 18, 1971, affirming a

decision of the United States District Court fo-*the District-

of Hawaii which had denied diccanugs 8 motion for injunes -

tive relief.

; & | Opinions Below \

” The. re Ba ae the United States Court of Monae }

. affirming the judgment,of the District Court and denyi ing |

_ petitioners’ petition ‘for ‘a rehearing en. bap are: reported | :

‘at 443 F.2d 970 (Judge Koelsch econeurring

and. dissenting),

and 44) F.2d 1401, ‘respectively, and are set out in the | t

. * Appendix,/ infra, pp. la-lla. The dpinion of the District | |

~- Court ah reported at 311 F: Supp. 935, and! is set out in the |

iat = infra, Pp. 1éa- 25a. ; Rs -. : |

ee eas,

eas

Jurisdiction

The judgment of the United States Court of Appeals

for the Ninth Cireuit was entered on June 18, 1971, and

the petition for a rehearing ex banc was denied on August

27, 1971: The jurisdiction of. this Court ig. invoked pur-

suant to 28 U.S.C. §1254(1).

Whether an order barring civilian clergymen from giving

feligious counsel to military prisoners at their request vio-

lates the First Amendment in the absence of ev ideneé of

a clear and present danger to military prison discipline?

Statutes and Regulations Involved

Title 10, United States Code, Section wanes 4 — ides in

pertinent part as follows: 5 :

. $031. Secretary of the Nave ‘y: Responsibilities.

(e) The Seeretary of the Navy has custody and charge

of all . aad of the Department [of the Navy].

Title 5, United States Code, Section 301 provides in per-.

_ tinent part as follows: < .

§301. candaiasil Regulations.

The head ofa. _ military hepentenati ws may presesibe

regulations for the government of his department, .

anc the custody, use, and preservation of its . . . a

erty.

eee neennenereenncen,

—————e-

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‘|

Section 0702A, aes Regulations, provides in Pertinent

part as follows: re

O702A. Cotimanders’ Duties of Exampli and Cor rec-

_° tion.

All commanding officers . . . in authority in the naval

service are required . .. to promote and safeguard the

morale, tlie physical well-being, and the general wel-

- fare of the officers and enlisted persons under their

command or charge.

Section 0704.1, Navy Regulations, a ides as follows!

- O704. Effectiveness for Servi ice.

The commaniing officer shall:

1. Exert every effort to majntain his eommand in

a state of maximum effectiveness for war service con-

sistent with the degree of readiness prescribed by

proper authority.

Section 0709.1, Navy Hicqulations, | provides as follows:

: 0709. Welfare of Personnel. oh

& The commanding officer shall:

1. Use all proper means to promote the morale, and °

to preserve the moral. and spiritual well-being of the _ “

‘personnel under his command.

Statement of the _—

' The petitioners, two clergymen and ‘seven “servicemen :

_ confined in the brig at the Pearl Harbot Naval Correctional

Facility at Pearl Harbor Naval Station (hereinafter, “the

base”] brought this suit for injunctive relief. ag@@nst. the

enforcement of military orders barring the ministers from

_ the base.’ The suit challenged the validity of the bar orders

on the ground that they constituted ‘a denial of petitioners’

First Amendment freedoms of speech and religion, the ser-

vicemen having expressly requested religious counsel from

the petitioning clergymen. The events out of which the

lawsuit ‘arose areas follows: . a '

In August 1969 the congregations of two Honolulu

churches voted to open their doors to servicemen who had

temporarily absented themselves without leave from their

_ military units. As the minister of one of the two churches,

petitioner Bridges frequently talked with servicemen, in-

. cluding the other petitioners, who had come to his church.

. Contrary to the assertion of fhe court below [App., infra,

p. 4a], however, he was not responsible for the decision

of his congregation to offer sanctuary? [R: Il, 141,. 202, -

‘A third clergyman, Robert Warner, originally jeined the suit

‘as a plaintiff in the District Court and as an appellant in the Court

of Appeals. His appeal-was abandoned as moot, however, in appel-

lants’ petition to the Ninth Circuit for a rehearing en banc, because

he was then a fugitive under Federal indictment. _ se, hy

-* Reverend Bridges testified under cross-examination in he

Unitarian Church, to which his congregation belongs, “has a na-

tional policy urging our churches to offer their premises for

symbolic -sanctuary. ... . The congregation offers those premises,

and there’s nod Way in which any ministér is involved in. offering

that holla that’s by vote of the congregation” [R. II, 202, 209}.

There is not a scintiila of evidence in the record to impeach this

: tgtinang. }

‘ Joe

210],° nor did he counsel servicemen to seek sanctuary or

reinain absent ‘without leave [R. (1, 204-05; R. III, 45,

60, 87,°119-20]. Petitioner Jones had no official connection

with either church [R. III, 237], although he was one of

approximately fifteen civilian ministers in Honolulu who

visited the churches occasionally. during the ‘month of

August to offer religious counsel to the servicemen who

weye there [R. II, 255-57; R. II, 45, 88-89, 152]. As in

the case of Bridges, there is not the slightest evidence that

Jones counselled or encouraged any serviceman to become °

or remain absent without leave.* Hes

On September 12, military authorities entered the church

premises and arrested those servicemen who remained

there [R. IT, 143, 222]<* Among those arrested were peti-

tioners; all of whom had designated Reverends Bridges, —

Jones or Warner as civilian ministers from whom they

wished to receive religious counsel in the exent that they

were confined on the base following their arrests [R. Il,

*“R.” references refer to the volume and page nuinbers of the

transcript of trial. = - :

_* Notwithstanding the complete absence of such eviddnce in the

record, the majority opinion in the court below impU& that both

clergymen were violating Federal law by “harbéFTing|, conceal-

[ing], protect[ing], or assist[ing]” persons known to be. military

deserters who did not intend to return to their base [App., infra,

p. 3a]. This implication is unwarranted on at least two grounds:

(1) there is no evidence that any of the servicemen intended to -

desert or that the clergymen knew of any such intention, while

there isevidence that the servicemen did not intend to desert since.

they surrendered voluntarily to military authorities [R. III, 143] ;

“gnd (2) the read yu were neither concealed nor clandestine,

received widespread \publicity, and were regularly visited by mili-

tary chaplains as as civilian clergymen [R.-II, 255-57; R. III,

152]. ‘Furthermore, there is evidence that, both ministers warned

several of the petitioning servicemen about the consequences of their

acts and constantly advised the military authoritie3 of their where-

abouts [R. III, 43-44, 60, 87, 151-52). =

tit eit et tt i

er ee eee pe ee

141-43; R. IIL, 178, 239; Exs. P-7, P-8,'P-9]. Since it is

_ Seneral policy to grant requests by Pearl Harbor brig

prisoners to see the civ ilian clergymen of their choice [Exs.

P-2; P-6], Reverend Jones visited some prisoners including

several of the petitioners in the brig on September 13 (R.

.? III, 186-88] and Reverend Bridges did likewise on Septem-

bew 21 -[R. 11; 144]. “There were no untoward incidents-dur- -" _

ing or as a result of ’ these visits, and no complaints were

lodged against cither of t] of the ministers [R. II, 32 22-24].

On September 22,-Chaplain John Markley , edordjnator of

‘military chaplains for the 14th Naval District, visited peti-

tiener Bridges to discuss -eertain aspects of a gervice for

prisoners conducted by Rey erend Warner in the base chapel |

on September 15 which had not been well received by the

military authorities, and to consider methods of establishing

a regular $chedule for visits to the prisoners by the three

requested civilian clergymen [R. 1,71, 179]. Markley in-

‘formed Bridges that Admira¥ Davis, the commanding officer

- of the base, -had disapproved of Warzer’s informal attire

and his use of wine and éake in the September 15 service

_ [R. I, 178-80]. Bridges discussed the “theology of ‘eake

Communion” with the chaplain so that the latter could

“make reeommendation&” to Admiral Dayis [R. II, 180}.

Siace his “impre ssion was somehow tlfe Navy had decided

I was the responsible member of the three ministers,” he

assumed a “coordinating role” and offered to set up‘a sched-

ule of weekly services “in aceotdance with Unitarian belief .

and practice” for those prisoners who w ished to participate’

[R. II, 179-80; Exs. P-8, P-4]. This offer was accepted and

the -schedale drawn up on September 24 in a letter to

Bridges from the commanding officer’s Chief of Staff [Ex.’

P5]. - 5 ; /

4 —_-

‘On September 25 Reverend Bridges performed ‘a ‘sched-

- uled service for prisoners, including several of the petitron-

"ers, in-the base chapel., The service consisted of two parts: .

(1) aesermon about popular musie and the desire. for

honesty among young people which was delivered -from* —

notes used by Bridges in a sermon given to his civilian con- -_

___* regation i February 25, 1968 [Ex. P-1];° and2) an in-

ai * formal discussion about drugs similar to discussions that

had-occurred between prisoners and the military chaplain

-in the brig [R. II, 109]. Thereafter the prisoners returned’

- quietly fo the brig in the custody of their guards, who testi-

fied that no disciplinary or other problems resulted from

the service [R. II, 129].° a Sag |

_ The following day Admiral Davis issued his order barring: .

Bridges, Jones and Warner from the base, under thé pur-

‘ported authority delegated to hi ‘by. Navy Regulations

0702A, 0704.1 and 0709.17 [Ex, P-2]. In response to an’

inquiry from ‘Congresswoman Mink about the grounds for

the bar order, the commanding officer stated on October 4

- that he considered “the tenor of Mr: Bridges ‘religious ser-.

“5 In a statement concerning the September 25 service, in evidence

as Ex. P-1, Rridges pointed out that he had made one minor change

in the text «#[i]n the edited version, I deleted*my earlier reference . =

to Donovan’s ‘Universal Soldier’ because I did not want to offend .

the military authorities.” .

' ©The majority opinion in the court below states thaf the day

after Bridges’ service, “a marine reacted to reports of the service

*by assaulting one. of the participants” [App., infra,* p. 5a].

'" Nothing in the record supports this assertion. Admiral Davis testi-

fied merely that a Marine had “socked” one of the prisoners who

had attended the service [R. II, 310], but nothing in the Admiral’s

testimony or elsewhere in the record indiéates that the’ assault

was a reaction to the service. °

* The purported basis for the Admiral’s order was stated-for the

first time in the government’s motion papers in the District Court.

a , oe

Wisessastensctyicsttitivnt sicrnticinchisis ocnagyie sarc! ers

vind’ Gileaniive to our Naval community” f Ex. P- 6]. In sub-

stantiating this statement he referred (1) -to- Bridges’

“casual smoking within the sanctuary,” a common practice

in the Unitarian chureh during the informal part.of a ser-

vice anda practice. which Bridges had not been told ‘was

prohibited“ in the base chapel’ [R. II, 101 -02, 115, 121;.R.

IH, 2], and QQ). to “profanities and vulgarities” in the ser-

mon, an apparent reference to ‘Bridges’ quotation of a line.

from a song containing one four letter word.’ These two

incidents seen in the light of the ministers’ sanctuary activi-

ties off the. base apparently formed the entire basis for

Admiral Davis’-conclusion that the ministers’ were.a “dis-

ruptive influence” who should be barred from giving re-

ligious counsel to servicemen, since in his view, “[t]he U. S.

Navy’s ability to propetly serve the religious rights of any

_ member of our service is not — en the personal con-

tribution of any Single individua

— [Ex. P-6]. °

The testimony ‘of military personnel who observed the

Bridges service and had custody of the prisoners does not

“square with the Admiral’s conchision. Corporal Jimmie

Hoggatt, a military guard at the sery ice, and Chief Max

8 A passage from the sermon. [Ex.:P-1] reads as follews:

‘Sock It To Me Baby’ by Mitch Ryder actually uses the word

<' ‘fuek’, ‘althongh I understand .a second version exists which

replaces the four-letter Anglo-Saxon term by something which

is clearly something. else and yet fully suggestive of the banned

' word.

One does not kewe to approve of such explicitness to recog-

* nize that the kids have had ¢nough of the hypocritical ‘earning

in which every body knows. but nobody actually says,

This passage was delivered verbatim by Bridges to’ his civilian |

congregation in the February 28, 1968 sermon.

® The petitioning servicemen, however, testified that they had no —

interest in receiving counsel from the military chaplains, none of

whom was Unitarian, and desired the counsel and service only of

Bridges, Jones and Warner Sa III, 20, 53, 77, 94, 128, 148, 160].

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Sherley, a correctional counsellor who also attended, both

testified that no disturbances or disorders occurred during |

or followMe the. service [R. Il, 129; Exs. D-1, D-2].° They

also testified that Bridges delivered his sermon from a text’

[R. II, .101, 114]; that he quoted only one four letter word -

from a song [R. II, 114,.123]; that a conversation about

drugs took place.which was similar to, drug counselling ses- —

sions held in the brig"[R. II, 108,118]; and that tley did

not inform Bridges that smoking was prohibited and that

he did not smoke until being offered an ashtray by the

chaplain’s assistant [R. II, 102, 110, 115]. Chief Sherley

testified that his only objection to the service was that it

should have been held in the brig not in the chapel,.and that

Bridges in fact had agreed to conduct his next service in

the brig [R. II, 116-17]. Chaplain Markley, who ‘had es-

. corted Bridges into the chapel before the service, testified |

that he had told Bridges that “the Navy does not in any way

-hinder; you may ‘conduct the service in keeping with your

religious: tenets” [R. Tl, 89]; that he knew of no events

that were detrimental to discipline and order resulting-from -

Bridges’ use of the word, “fuck” [R. -U, 96]; and that he

had been opposed to barring the ministers from the base,

on the ground that freedom of religion was involved [R.

“II, 78).

Admiral Davis testified that his decision to bar Reverend -

_ Jones was based solely on his relationship to Bridges*

of the petitioning servicemen oceurreg after the bar‘order had been

‘issued, when petitioner Trendell circulated a’ petition among his

’. fellow. prisoners requesting that Unitarian services continue on a

regular basis. The brig officer eonfiscated the petition, stating,

“I will not have this shit going on in my brig,” and placed Trendell

in solitary confinement for six weeks [R. IIT, 94-99]. :

”

_ ™In his letter of September 22 to Admiral Davis proposing a

coordinated schedule of: Unitarian services, Bridges stated” that es

t *

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‘

END Ree

nat RT WEL 8

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Dem

c trict Court denied relief and held that the orders were non-

“10

and his sanctuary site ities off the base [R. IL, 322 4. R.

ITT, 288] The Admiral. testified that Jones did not- biden.

have or commit any offensive’act during either of his coun-

selling visits to prisoners [R. TI, 322-24]. On the basis of

this Aestimony, the majority in the court below conceded

_that the evidence sustaining the bar against Jones was.

“somewhat tilin” [App., infra, p. Ta], while Judge Koelsch

- would have. reversed the ‘judgment against hin [App.,

infra, ee ee te inn

Follow} jng hearings. on the petitioners’ motions for a‘tem-

porary restraining order and a preliminary and petmanent

injunction against the enforcement of the orders, the Dis-

reviewable, stating that the result w ould have been no dif-

_ ferent had it ruled on the merits {App.,- ‘infra; ps pr 23a].

* By a court divided with regard to petitioner Jones, the

Gourt of Appeals. affirmed the denial of. injuncffve relief

on the merits, while holding that “in a strict sense, the

orders befor@ us ‘are not non- v-reviewable” [App., infra,

p. va] pale >.

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“[t]}he services would either be condugted by.me ( probably a

i majority of.the time), or directly authorized by .me and under my -

supervision. The Reverends Larry Jones and “ys Warner have

‘agreed to work with me in this manner, should their assistance be

needed because of my parish commitments” [Ex. P-3].. .

-¢

Reasons for Granting the Writ

1. The _— should define the proper ‘scope of the rule

in Cafeteria & Restaurant Workers v. McElroy.

In upholding the validity of the bar order. the Distriet

. Court and the Court of Appeals’ below relied-entirely on

' Cafeteria dé Restaurant Workers v. McElroy, 367 U. S. 886

. (1961), on the ground that there this Court “lmade]- it

clear that access to a military reservation is a matter within |

the sound diseretion of the commander of the post” ADP. i.

infra, p. Sa].

sar) a é

Cofeteria Workers, wae er, involved no First Amend-,

ment question and dffers little guidance to a court weggh- .

ingA challenge to a military bar order on the basis of free- ~.

- dom of speech and religion. As a result there is general ©

confusion and ‘disarray among the Circuits ‘with regard to

standards for juélging military orders barring civilians

engaged in First Amendnient activ ity from military prem-

- ises. Compare: Kiiskilaey. Nichols, 483 F.2d 745 (7th Cir.

1970) (en banc) and United. States v. . Bradley, 418 F.2d 688.

(4th Cir. 1969) with United States v. Flower, Slip Op. No.

31143 (5th Cir. Nov. 8, 1971) and Weisenae v. United

States, 387 F.2d O71 (10th Cir. 1967).

This confusion, which/Andicates that! the scope of Ga:

teria Workers is hardly “clear”, is heightened by the de-

cision below. The conflict betw een the result reached by the —

Ninth Cireuit majority and other First Amendment de-

cisions which have been rendered.in the shadow of Cafe-—

teria Workers is most acutely demonstrated by Kiiskila v. |

Nichols, supra, where the Sev enth Cirenit sitting.en banc

unanimously rev ersed a summary judgment tered against’

ral }

“

: “12

a civilian employee who had been barred from an Army.»

base for distributing antiwar literature and: talking to an

officer on anothtr base. about an-antiwar rally. In order-

- ing. the readmission of the civilian to the base, the court

held that “unless we are to permit the a con-

stitutional ‘ rights through subterfuge, “the validity of a

commanding officer’s exclusion of a. civilian employeé must

turn upon more than his own subjective statements of .the

the reagon for his action ” 433,F.2d, at 751. Sine# Admiral -

Davis’ conclusion that the petitioners’ Treligiou activities

were “Csruptive” rested on littlé more than his/ own asser-

tions,,and, as Judge Koelsch pointed out in his concurring |

and dissenting opinion, on “hearsay, surmise and’ conclu-

"., Sory statements completely bereft of factual predicates”

[App., infra, p. 8a], it is’ difficult to imagine that the.

‘Seventh, and Ninth Cireuits-would have reached the same

result in the case at bar.??

~ While there’ is no doubt that this Court has recognized

the authority of the military summarily to axclnde civilians |

** The opinion below denying thg petition for a rehearing [App.,

infra, pp. 10a-lla] attempts to distinguish Kiiskila ‘from the facts.

-of.this case, but each distinetion is either spurious ‘or unsupported

_by the record: (1) “[t]here . . . the court recognized that. off the

~basé conduct could he considered in determining the validity of

the exclusion order,” but it -held that anti-war activity was pre-

. cisely the kind of conduct that could not be considered and . pre-

sumably would have held that religious counselling. was equally

A protected ;-(2) “[t}here, the conduct did not involve ‘proscribed

on-the-base ‘activity,’” nor did it in the case at: bar unless bne is

‘to .construe as “proscribed” those aspects of Bridges’ September

25th 8rvice Which Admiral Davis found “offensive”; and (3)

“[t]here, the, court emphasized the fact that appellant was on the

‘base as a ci¥ilian employee,” a.status which made the facts in

Kiiskila closer than the facts in ‘the case at bar to those in Cafeteria

Workers;. ON a See oP eee

«. : ‘ Si 13° ‘ ; I.

° ‘ : ? 4

from prétiises under its direct control, Cafeteria & Restau- ss

rant. Workers v. McElroy, supra; such authority does not

extend to cases where the announced grounds for exclusion .

-are “arbitrary. qr discriminatory.” Id., at 898. Both the

z majority and the dissenting opinions in Cafeteria Workers

“i imply. that the scope-of a court’s inquiry into whether -the

exclusion of a civilian engaged in onstitutionally protected

activity. was arbitrary r discri ihatory must be broader

than the Ninth Circuit would allow. J ustice: ‘Brennan in dis-

Sent, for example, explained the majority’s ‘statement that --

the petitioner “could not have been kept out because she was

a Democrat or a Methodist, ” 367 TLS. at 898, by. pointing

out that “i petitioner [? ’s].... . [security] badge had been

lifted avowedly on grounds of het race, religion, or political

opinions, the Court. would concéde that ° some constitu-

tionally protected interest—whether. ‘liberty’ or ‘property’

it is unnecessary to state—had been injured. ~ a. 900. qa

Sirice this Court has had no occasion to explain and refine

the: dicta i in Cafeteria Workers ey oe, as review of a

3 “Tn analyzing the Court’s opinion’ in Cafeteria Worker 3; its |

own description of the security aspects surrounding the Naval Gun

Factory [from which the plaintiff was excluded after’ she was

denied a security clearancg? should. be kept in mind : .

‘The Gun Factory was engaged, qn designing, sisnitienten. and

inspecting. naval ordnance, ‘including the development of weap-

ons systems of. a highly "classified nature. . Access to it

_ Was restricted, and guards were posted at all points of entry.

Identificafion badges were issued to persons authorized to enter

the premises by the Security Offi ‘eer, a.naval officer subordinate .

to the S Supegintendent. > 367 TLS. ‘at 891.”

: é

United States v. Flower,:supra at 30-31 (Simpson, J. dissenting).

[emphasis supplied]. Not,only. does the ease at bar involve substan-

tial First ‘Amendment questions, but it is completely devoid of

‘any “security aspects.”

OPE Rarey yer

2 her

military bar order when a compelling First Amendment

question is involved, the lower céurts have been left to their .

~ own devices in conduéting such review. Acting in this

vacuum the ‘majority of a llate eourts have held that

'the_authority to exelude does not encompass cases(where

‘the conduet in question was generally protected by the First

Amendment and did not, “promote disruption,” United

States v. Bradley, supra, at 691, or was not “directed to in-

citing or producing imminent lawless conduct,” Kiiskila ‘vy.

_ Nichols, supra, at 751, or did not clearly undermine “disei-

pline,” Yahr v. Resor, 431 F.2d 691 (4th Cir. 1970).

Accordingly, the’ Court should grant the ‘petition for a

writ of certiorari in the case at bar to define the scope of

~ the rule in Cafeteria Workers and resolve the conflicts in

application of that rule among the circuits.

It is diffienlt to understand how the majority in the court

below could have characterized Admiral Davis’ order as a.

reasonable “[ rjegulation as to the time, place, and manner,

'* Decisions upholding summary. exclusion of civilians by a

military cothmander are often based on findings that the constitu-

tional claims advanced were: either spurious or nonexistent. as

. 22° Weissman vy. United States, supra, at 273 (10th Cir. 1968)

(“At the time of their arrest [the civilians) . . . did not assert a

right to enter the reservation because of any representation of the

press. We douht that their belated self-serving declarations entitle

them to be heard on that point.”); United States v. Jflinski, 411

F.2d. 476, 478 (“[ A]ppellant’s primary interest in citering the

base was the ¢licht “economic advagtage gained thro his use

of the military facilities, ; - + [T]his was a mere privi im the

first instance.”).

”

of [the éxercise of petitioners’ freedom of religion]” [App., —

‘infra, p. Ta] (emphasis supplied). The effect of the order

was to deny the petitioning military prisoners, all of whom.

were adherents to the Unitarian faith TR. III, 42, 54, 84,

121, 128, 148, 172], the right to practice their religion st

any time or in any place or manner under the guidance of

their own ministers, who, the record indicates, were the ©

only available Unitarian clergymen [R. II, 65-66, 182-83].

Indeed, there is evidence that a request by the petitioning

prisOwers to continue Unitarian services after the bar order _

had been given was summarily denied and one prisoner

was punished for making the request by the officer in charge

. ™~ .

ofthe brig“ _. ~ os

A citizen does not forfeit his constitutional rights either -

when he enters military service, 0’Callahan v. Parker, 395

“U.S. 258 (1969) ; Kauffman v. Secretary of the Air F orce, ~

415 F.2d 991 (D.C. Cir. 1969), or when he is sent to prison,

Younger v. Gilmore, 40 U.S.LW. 4003 (U.S. November 8,

1971) ; Cooper v. Pate, 378 U.S. 546 (1964) (per curiam) :

Washington v. Lee, 263°F. Supp. 327, 331 (M.D. Ala. 1966),

aff'd per curiam, 390 U.S. 333 (1968). His religious free-

dom, rhoreover, is a préferred and fundamental right, and

“[eJourts will closely scrutinize the reasonableness of any

restriction imposed on a prisoner's activity \n the exercise

of his religion, especially so where the adh>yents of “one

faith are more heavily restricted than the a ierents of

anothes,” Cooper v. Pate, 382 F.2d518, 52f (7th Cir. 1967);

* on remand from 378 U.S. 546 (1964). See also Pierce ¥.

La Vallee, 293 F.2d 233, 235 (2d, Cir. 1961). A erucial aspect

of this scrutiny is whether a prisoner has reasonable access

to a minister of his faith, Walker v. Blackwell, 411 F.2d 23, -

29 (Sth Cir. 1969) ; moreover, “[s]Jhould-a recognized’. . .

8 See n. 10 supra. :

Pe OB *qeeeowe cee oy

- 16 .

ae nie an - .

minister make his - services available to the prison, .. .

and space and normal prison routine permit, those who >

sincerely believe in [the {6 should be allowed to attend

any service he shall conduct.” Cooper v. Pate, 382 F.2d, at

_ 522. See also Knuckles v. Prasse, 302 F. Supp. 1036, 1057-

09 (E.D. Pa. 1969). This right of -reasonable access to

ministerial services, of course, is reciprocal, since “(t]he

priest or preacher is as fully protected in his function as. the

parishioners are in their worship.” Follett y; McCormick,

321 U.S. 573, 574 (1944).

The grounds asserted by Admiral Davis for abridging the: .

petitioners’ exercise of this reciprocal First Amendment

right were that the Unitarian services “were offensive to

our Naval community” and that the clergymen associated

with them were a “disruptive influence.” If these assertions

-are based upon the conduc¢ of the clergymen while on the

base they are insufficient to sustain the abridgement.

In addition to the testimonial assertions of Admiral Dgvis

characterized al, “gossip and unconfirmed rumor” in the

concurring and dissenting opinion of J udge Koelsch [App.,

infra, p. 9a], the testimony of three. government eye wit- .

nesses that they were personally offended -by certain aspects

of the Bridges service, including the sermon, cannot justify

the bar order, Even in thesetting of a prison the exercise

of religious freedom “does not involve mere matters of con-

venience or preference, but rather basie questions of con-

Sstitutionally protected religious rights.” Knuckles vy.

Prassé, 302 F. Supp. 1036, 1048 (E.D. Pa. 1969).*° More-

**In Street v. New York, 894 US. 576, 592 (1969), this Coprt

pointed out that ,“[i]t is firnfly settled that under our Constitution

the public expression of ideas may not be prohibited merely because

the ideas are themselves offensive to some of their hearers.” See alsa

17 wer a

over, “[t]o call the wuite ‘which one minister speaks to his

_ congregation a sermon,'immune from regulation, and the.

words of anotlier minister an address, subject to regulation,

-is merely an indirect way of preferring one religion over —

another.” Fowler v. Rhode Island, 345 U.S. 67,-70 (1953).

See also Founding Church of Scientology v. United States,

409 F.2d 1146 (D.C. Cir. 1969),

Evidence sufficient to sustain the abridgement of First <f

Amendment rights either on a military base, Kiiskila v.

Nichols, supra at.751; United States vy. Bradley, supra at

691; Yahr v. Resor, supra at 691, or in a penal institution,

law v. Parker, 390 ¥. 2d 816, 822 (3rd Cir. 1968) ; Jackson

- _V. Godwin, 400. F.2d 529, 535, 341 (5th Cir. 1968) ; Fortune

_. Soviety v. McGinnis, 319 FP? ‘Supp. 901,.904 (S.D.N.Y. 1970),

must show a clear and present danger that the exercise of

those rights will result in a breach of institutional discipline

or security. With regard to petitioner Bridges” no govern-

ment witness~testified that there were any disciplinary or

security problems during or resulting from the September

25 service, and Admiral Davis himself testified that he knew

of no specifie'disciplinary incidents but was concerned only

with “the impact of the service on the attitude of the peo-

ple ... that [sic]- observ ed_and viewed the conduct of. the |

ovement” TR. IIT, 295].* a

Bacheller v. Seaman 397*U.S. 564, 567 (1970): ef. Gor v.

Louisiana (1), 379 U.S. 536 (1965) ; Edwards v. South Carolina,

372 U.S. 229 (1963).

7In his separate " opinion Judge Koelsch insisted, “T do not

believe that 6n this record we can attribute to. Bridges many

of the misdeeds and much of the mischief so forcibly emphasized

‘by the [majority] opinion” [App., infra,.‘p. 8a).

** The insufficiency of such testimony to support the Admiral’s

order barring Bridges is dramatically illustrated by a far more

’ In the ease of petitioner Jones, the judgment against

whom Judge Kaelsch would have reversed, there is virtu-

ally no evidence of “offensive” beh r on the base, while

there is an admission on the part of Admiral -Davis that

_ he was barred solely because of his relationship to Bridges

and his antiwar activities pff the base. The First Amend-

_ Ment activity of a civilian off a military base certainly can-

not sustaimjan order barring him from’ the base “unless

that conduct directly and imminently foreshadows _pro-

"seribed on-the-base activity.” Kiiskila y. Nichols, supra*at

751. The record is devoid of any stich evidence in the case

of either clergyman. . | |

incendiary circumstance in Long v. Parker, supra at 822, where the

. Third Cireuit held that °

[mJere antipathy caused by statements derogatory of, and

offensive to the white race is not sufficient to justify. the sup-

.Pression of religious literature even in a prison. Nor does the

ere speculation that such statements may ignite racial or

< religious riots inva penal institution warrant their proscription.

To justify the prohibition of religious literature, the prison

officials niust prove that the literature creates a clear and

‘present danger of a breach of prison security or discipline or

some other substantial interference with the orderly functioning

_ of the institution. 546 [?

eins

, : ae

CONCLUSION \

For the foregoing reasons the petition for certiorari

oa be granted. - |

Renpestiaity subanitted, . .

Mety iw L. Wutr

American Civil Eibertive

~~Gnion Foundagign __

—- a 156 Fifth Avenue

New York, ‘New York 10010

Epwarp R. emer * eae ie c

- 833 Queen Street i

Honolulu, Hawaii 96813

: Jeux S..Epmunps

. 1149 Bethel Street

pare - Honolulu, Hawaii 96813

Brook Hari ~-*

_ 1149 Bethel Street _

es; cae. Honolulu, Hawaii 96813 .:

. . Attorneys for Petitioners c

November 25, 1971

Attorneys for petitioners gratefully acknowledge. the invaluable

assistance ‘of John H. F. Shattuck, LL.B. Yale - ‘Law School, 1970,

in the preparation of the Petition.

*..

Opinion of the United States Court of Appeals

Dated June 18, 1971

- UNITED STATES coukT OF APPEALS

: _ Nits Circurr’ doe At

"No. 25317

. <> ag . -

REVEREND GENE Brivces, et al.,

ApmiraL D. C. Davis, et al.,

| Appellees.

xy 2 Ns nd @ e . :

_ Reverenp GENE Brinces, . et. al.,

: Appellants, 2

v. : ina

Cotonen D. McGoven, et_al:,

or pa -.. Appellees.

—<j>—

ata: : : ' ’ tae :

EAL FROM THE UNITED STATES DISTRICT COURT

_ DISTRICT or HAWAII

e: Mitta, Canrén and KILKENN x, Cireuit J udges.

ER Curmam: Pal soars oe

This is an appeal by three ordained ministers. (Bridges,

_ Jones and Warner) and eight servicemen saben a ~iecree

Appellants, aa

“t 2a ° | - -

e. |

dismissing their actigns for. injunctions against certain”

mon authorities in | Haw aii.

Factuab Backerounp

In August, 1969, the Church of the Cheenessiti and the.

Unitarian\Church in Honolulu ptcamé sanctuaries for mili-

tary servicemen who decide 0. absent themselves without

leave. The appellant ministers were iny olved in the-sanc-_

tuaries. .The other. Bia. are servicemen who entered .

-the sanctuaries while absent withont leave from the mili- .

tary. After the .servicemen were arrested ‘and placed. in,

military prison, the ministers perforfned services for them

on the military base. Subseqi jently, the appellee command-

ing officers of Naval and MaXine bases in Hawaii barred

_the ministers from again enterifig those bases on the ground.

imical to morale, =

that their presence would be |

and good order of the .%

The facts are practically undisputed. Hawaii is an. im-

; ‘portant American staging area Tor military activities in the.

_ Pacifie. There located are the Pearl Harbor Naval Base

(Pearl Harbor) and the Marine Corps Air Station, Kaneohe

Bay, Haw aii (Kaneohe), each’ of which contribute - sig-

nificantly to the nation’s military effort. Pearl Harbor is °

~ under the command of appellee, Rear Admiral D. C. Davis,

Commandant of the 14th Naval District, and Kaneohe. is

under-the ¢ommand of Colonel James D. MeGough. |

The Naval regulations applicable to officers in command

of naval activities direct the commander to exert every ef-

fort to maintain his command ina state of maximum étee-

- tiveness. They instruet the commanding officer to take all

: necessary and proper measures. to promote and safeguard

“he morale, the phy, sical well being and the general welfare

rt 4

—_e. me 2

MA- ‘

‘ p

3a .

of.the iia and ‘enlisted men. under jis command. Appel-

’ lant servicemen, when in the sanctuaries, were defying the ,

military authorities and could well be <lassified as deserters.

_ (One who harbors; «conceals, protects | or assists any de-'

serter, knowing him to have deserted or refuses to give up |

and deliver: such pérson on the demand of an officer au-

thohized to’ receive him,. violates the lay.)? _

“AS early as August, 1969, appellant Warner opened the

doors of the Chureh of the Crossroads to servicemen who

were AWOL. This was in protest to the war. in. Vietnam.

He was designated as the “spiritual leader” of the Cros®-

roads sanctuary. On that date, the first servicemen entered

. the sanctuary. Four days later the serv icemen and Warner

“acted as leaders of a group of 350 people who marched un-

der the name of the “Hawaii Resistance”. During the course

of the march, Warner called on observi ing servicemen to join.

the. movement, and’ urged participants to “resist” any at-

tempt by civilian or military authorities to arrest the ser-

vicemen who joined the march. Six other: servicemen, ‘in-

_ cluding two of the appellants, declared themselves AWOL

and entered the Crossroads sanctuary immediately follow-

- ifig the march: Warner then issued a statement, published

in the newspapers, that approximately . 20 persons would,

barricade themselves in the sanctuary and protect the ser- °

- vicemen fugitiv es from arrest..On August. 17, 1969, Warner

published an artiele in a new spaper in which it was stated:

that the initial serviéemen to-enter the sanctuary, “openly

defied arrest” in the August 10th march, and that the total,

number of servicemen in the sanctuary had reached 15. The

article edmpared the delightful Jiving conditions ind ae-

tivities i in the sanctuary to the drab life i in the’ milifary.. A

X10 USC. § 866, 10 US.C, dacs 18 USC. $13 i

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VRID WN ST cea ak Vey: ms De OR ttn sla te Atle BE ally ee eb aE WA

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short time later,. the number of Jmilitary fugitives in the

sanctuary reached 24. On that date, three of the number

moved to the Fitst Unitarian: Church of Honolulu, whose

minister, appellant Br idges, liad decided to open the church

- asa sanctuary. Bridges, who is also.an attorney , prepared

a document’ to be signed ‘by those whe might. be. appre-

hended, which - indicated .that Bridges, .or some other

minister whom he might designate, should have imupediate

and prompt access to them 3 m any place where*they might

be confined. , :

‘In: early September, 1969), Armed Service policemen _

entered the chureh sanctuaries and arrested. 12 fugitives

. WHo were AWOL. . Eight of those areé appellants, Thirteen

others escaped., oy taahea .

. During all this period, Admiral Davis was RE aaa

ligenée reports, briefings from staff members, watching tele-

vision reports, and reading the articles inthe new Spapers.

He hesitated to ‘bar the ministers ‘from the base because

“ ... We were trying to be as open-minded as possible and

not create a situation if we [could] avoid it. ” On September

15th, Warner conducted a service for about nine prisoners

in the prison brig. Although he knew that the consumption.

_ of wine was forbidden, W arner permitted a full bottle of

—wine.to be passed among the prisoners, each ‘of w hom drank

from it. He also passed out pieces of birthday cake to the

prisoners. Certain, of his remarks w ere in derogation of the.

military. ¥ oe | ee :

Immediately following this service, a ae Davis

reached the conglusion, that Warner’s, ov erall conduct, both

on and off hig was detrimental to the good order

Pd discipline of the service and was prepared to bar him

from the base. When Bridges learngi of this, he implored

the Admiral-not to take — action. ‘The Admiral refrained

ee eee 3 Ae

SE MRT I SIN RL DANY bec AUT REITING late .

5a ete ed

sponsibility”.. Bridges, by leiter, asked tha¥*he be per-

mitted to give religious counselling andeonduct services

Py . . rd < . + . (m3 S a . < “9 ke

for prisoners who listed their religiows’ preferetice as *Uni-

tarian. gln this letter, he named appellant Jories as an -

alternate. Jones is a minister ‘of the United Church of °

.Christ and was actively involved in the Crossroads sanc- -

tuary activity. In the letter, Bridges also indicated that

ee 7“ ’ . oe ; . Pie .

Warner and Jones Would be acting under his supervision.

‘Bridges was- then informed by letter that times would be.

made available to the three ministers for conducting serv-

ices and. counselling prisoners. The following ddy, Bridges

held a service in the prison chapel for six prisoners. AJ,

though he had been informed by the thilitary authorities

of their, concern with Warner's laék of ministerial attire

-When on the base, Bridges conducted the service in a short

sleeved shirt and trousers.. During the course of the sermon,

o, ? " . ° 7. ; fe wr .

he quoted from a song which used a four, letter word. He

also lit a cigarette, and permitted the. prisoners to do like- ‘a :

wise. Smoking is not permitted in the prison chapel. .

. | s ma. ; a . .

One of the soldiers who escorted thre pylsoners to. the

chapel was so upset by the service that he indicated. to

commanding: officers he wotld disohey An order to-again

perform church duties. if the services involved. these pris-

oners. The following day another marine reacted. to re-

ports of the sevice by assaulting one of the participants.

Many: reports .reached the Admiral indicating that the.

Service had a disturbing effect on the entire military com-.-

munity. Thereupon, he concluded that the continued pres-

ence on the base of the three ministers would have an’

adverse effect on the morale at the base. It was his belief

that the actions of the AWOL servicemen 4n seeking sane-

tuary in the ministers’ churches and in defying military

+ 6

on the promise of Bridges to accept “certain reas of) re-

mB Oo Netie OO

_ + authority went to the very heart of discipline and morale.

Although he felt there was enough justification to bar the

ministers prior to the September 25th affair, he said that -

the*service conducted by Bridges, the designated leader =

of the group, on that date was “just the last straw”. He . ~

then issued the order barring the three thinisters ‘from

the have. °

. * Colonel MeGough, the Commanding Officer at Kesahe

” Marine Cérps Air Station, was fully aware of the activity

_at the-sanctudry but, eyen se, pefmittgd Warner to visit

a prisoner. The Colonel was also aware of the involvement

ih sanctuary activities of Bridges and Jones. Subsequent *. ¢ .

to his receipt of reliable information on the ebapel inei-

dents of September 15th and 25th and an incident ht Pearl

Harbor Correctional Center, be conglyded to bar the three

ministers: from the area over which he had jurisdiction.

A furtlier dixeuesion of the elaborate evidence presented

to the trial judge would add. nothing to the validity of our

Y conclusions. ee nN

eas -Issurs Yo. as

, “° a + .

. While appellants assign a variety of reasens for reversal

of the judgment of the trial court,,we hold that two prin-

= ¢ipal questions are invol€ed: (1) are the orders in qnee .,.

_ tion reviewable, and (2) if reviewable, is this court per-

mitted to sub@tute j its judgme nt for that of the military 8

authorities as to the necessity for the orders in question? *.

** (1): Folfowing the decision in ae § v. Willoughby, 345

_—

es UC€S 8 (1953), emany courts seemeddto confuse jurisdie- te

tion with scope of review. However, to say that an action *

_ is non-reviewable is not the equivalent of saying that the

. appropriate court lacks jurisdiction to review. Although

> :

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the scope of review in eases such as this involving military

matters is extremely limited, that does not mean that -

any military action is beyond fhe-reach of the courts. Smith

‘vy. Resor, 406 F.2d 141, 145 (2d Cir. 1969). Therefore, in

-& strict sense, the orders before us are not noh-reviewable.

The phrase non-reviewability is properly ascribed fo" the

scope of review, rather than jurisdiction to review. The

. Orloff case supports this view. °

(2) The appellants claim -that the orders here under

scrutiny violate their freedoms of speech and religion under

the First Amendment. Initially, we note that these rights

are not absolute, Regulation as to the time, place, and

manner of such rights is proper when reasonably -related

to » valid publie interest. Sellers vy. Regents of the Uni-

versity of California, 432 F 20 493, 499 (%Hh Cir. 1970), °

cert. dénied —— |S. —— (1971). The record before us

leaves no doubt but that the orders in question could be jus-

tified in teryis of a reasonable regulation of First Amend. ~

ment activity. While the evidence implicating the appellant

_ Jones may be somewhat: thin, we hold it to be sufficient.

Moteover, persons in command of a military post, such

as appellees, have wide diseretéon ag to whom they may

exelude from their posts. ‘This diseretign will be disturbed

only upon a showing that the crounds for exdlusion were

patently arbitrary or discriminatory. ( ‘afeteria & Restau-

.vant Workers v. McElroy, 367 U.S. 886 (1961). True

enough, Cafeteria Workers involved a festairant worker

on the base, rather than a minister. However, ve can find

no valid reason why the logie employed in Cufcteria

Workers should not be applied to the facts ‘before us.. In

the totality ‘of cireumstanees presented by this record,

cannot be,said that the actions of appellees, in_exeluding

appellant ministers from the respective em om patently -

arbitrary or discriminatory. Cafeteria Workers makes it -

clear that access to a military reservation is a matter

. Within the sound discretion of the commander of.the post.

Any review of this discretion, other thar? to determine

whether the actiepayas patently arbitrary or diserimina-

tory, is saudhadian * by » logic of both Cafeteria Workers

and Orloff. | aa

W e are not here concerned with Sixth Amendment. rights

and express no view as to the result if those rights were

involved.

Appellées” motion to dismiss on the ground that the

appeals are moot is denfed. The judgment of the lower

court, ¢n each case, is AFFirnyED. ; : .

CONCURRING AND DiIssENTING

Kortseu; Circuit Judge. ¢ . Sas

I concur in the result with seimpeat to. appellants Warner

and Bridges, bat I cannot join in affirming the judéfnent

against Jones.

And, if substantial proof, of actual misconduct was a

necessary predicate for the post commanders’ orders sum-

marily barring Warnet .and Bridges. from the military

bases, then I would wholly disagree with my brothers.

Vnlike them, IT do not believe that on this record we can

attribute to Warner an Bridges many of the misdeeds and

. much of the mischief so forcibly emphasized by the opinion,

‘The “proof” on that, sedré consisted largely of hearsay,

surmise and conclusory statements completely bereft of

factual predicates. , :

But, as T read Cafeteria W orkers, [Cafe teria and Res:

- taurant Workers v. McElr oy, 367 U.S. 886 (1961)] judicial

.. 9a mi

interference with a ‘nilitary ctummandes’ s’orders involving se

the exercise of discretion is largely confined to these rare.

instances where such.orders are utterly incapable of being

rationalized on any conceivably valid basis. The orders

in the instant case, even: though the result of gossip: and

unconfirmed rumor and although they extend to “men of

the cloth” are not, in my opinion, within that category. .

> M. Oxtver uain:

United States Circuit Judge

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Ophaiten of the United ‘Sates Court of Dupes

_ Dated August 27, 1971

o UNITED STATES COURT OF APPEALS .

: . Nora Cire UIT

‘ rer a eae or

—_

Reverenn Gene Brinees, et al.,

Appellants,

Vv.

. ApMimaL D. C. Davis, et al.,

Appellees. _

APPEAL FROM THE UNITED STATES DISTRICT COURT

DISTRICT OF “HAWAII

ae or ES

— ™~s

On Petitvon for Rehearing and ont

: for Rehearing im Bane

Before: ae

Koetecn, CARTER and KILKENNY,

Circuit Judges.

- Rely ‘ing for the.most part upon Kiiskila v. Nichols, 433

F.2d 745 (7 7th Cir. 1970), appellants suggest that we rehear

the case in bane. Aiiskila is manifestly Higtinguishable.

There, for example, the couft re my that off the base -

| 4

oe + Te

= conduct wie -be mee: are in determining the validity of

an exclusion order. P. 751. There, the court emphasized the

fact that appellant was or the base as a civilian employee.

Here, appellants had no such status: There, the conduct did

not involve “proscribed on-the-base activity”. P. 751. Here,

some of appellants’ activities were directly in violation of

on-the-base directives. There, the activity involved a peace-

ul legitimate attempt to express views critical of the

jet War and the Government. Here, appellants were

active participants in organfzing a sanctiiary which resulted

' in at least twénty-five members of the Armed’ Forces. going

AWOL.

The petition for eins’ is denied and the suggestion

for a rehearing in bane is rejected. _ |

* The above order was circulated to each member of the -

court. No member requested an in bane hearing within the |

time required by General Order*15.

‘Judge Koelsch joins in the needs not in the sihehane of

’ the order.

12a

4 7 rae Judgment of the United States ‘Court “a Appeals |

| UNITED STATES COURT OF APPEALS:

| r THE Ninra Circurr’ |

— , J No ez |

DC #3078 & 3079—civ

REVEREND GENE Brivcss, e¢ al.,

Appellants, ©

mo . | |

.. ApmiraL D. C.’ Davis, et al.,. 2%

‘y —_—

REVEREND GENE Brivces, Py al.,

" Appellants,

Coronet. D. McGoven, et al.; :

A ppelle esas

APPEAL FROM ‘THE UNITED STATES DISTRICT COURT /

FOR THE DISTRICT OF HAWAII

‘ . . 4

. THis CAusE came on to be heard’on the Transcript of the

Record from the United States District Court for the -

. District of Hawaii and was’ duly submitted.

Se: CONSIDERATION W ‘HEREOF, It is, now here ordered and

fe adjudged by this Court, that the judgment of the said

ae “i

/ ; 4 ; , .

Me Se

District Court in this Conse he, ‘and hereby ‘is affirmed.

cs Appellees’ mdtion to dismiss on the ground that the appeals —

are moot‘is denied. an, oa P

: | A TRUE Copy

C . Arrest: Sep 23 1971 .

ape

Wo. B: Luck, Clerk

by Emit FE. Metri, Deputy

Filed and entered Jtine 18, 1971

| a al

-l4da

Opinion of the United States District Court

UNITED STATES ‘DISTRICT COURT -

District or Hawan

Civ. Nos. $078, 3079 ;

ee >

; .- Reverenp GENE Bainces et al., Pei OS Be

- Plaintiffs, “

Vv. 4 . we ; ~~

Apmirat D. C. Davis é¢ al.,’ |

Defendants.

Reverenn Gene, Brivces et al., z ;

. m= | - Plaintiffs,

Vv. ‘ '

“ - ; ,

Coronet D. McGovcu et al.,

ane os Defendants. ;

Nov. 26, 1969 +

< Joun S. Epmvunps, Honolulu, Hawaii, The’ Amer- -_

ican Civil Liberties Union of Hawaii and

plaintiffs; Brook Hagt, Honolulu, Hawaii, _

me of counsel. =) ees

Rosert .K. Fuxvupa, U. S. Atty., Distriet. of ae

.- Hawaii, for deféndants. per

° So] Tae .

Decision AND ORDER OF DisMIssaL

_ Tavares, District Judge. |

If this Court were not in the middle of dine a long jury

case, it would love to jhave about, three weeks to gét all -

” the decisions. together and write a very learned, or try

to write a learned; decision on this: ‘subject. However, the’

subject does call for an-early decision and the Court has

spent every effort toward that and, therefore, the Court

will have to make a decision ony in. order to expedite :

‘the matter. ;

In the situation paentpied by the | three cases originally .

before the Court, namely, Civil Nos. 3078, 3079 and 3080,

threg/ordained ministers, Bridges, Jones and W atner, all

of Honolulu, ‘allege that military: authorities. have barred

them from military ‘installations in the Honolulu area,

thereby deprivi ing ‘them of rights allegedly guaranteed un-

der the Civil Rights Act of 1871, 42 U.S. Code §1983, to-

gether with those under the Kjrst and Fifth Amendments ;

to the Constitution of the United States. The claim tinder

Section 1983, however, has been withdrawn by plaintiffs.

_ Other plaintiffs, being military prisoners who joined with

the three ministers in two of the three actions; are men-

’* ‘tioned later.

For simplicity the cases will henceforth be designated as

follows: No. 3078, Navy; No: 307! }, Marine, No. 3080, Army...

The ‘complaint’ in ‘thie Navy case w as accompanied by a |

Motion fora Temporary Restraining” Order and for Pre-

liminary Injunction. Inthe Navy case, the three minister

plaintiffs were, joined -by others, being enlisted men of the

Navy, under confinement at the Naval Correction: Facility, :

U.S: Naval Station, Pearl Harbor, which is here on Oahu

in the State of Hawaii, “having been conned, oe according’

)

. °°

see Fitia, = - 16a

to the: Sores of the complajat, “for allegedly. being ab |

sent without official. leave from military. duty: and being.

present during said leave at the Church of the Crossroads 3

in Honotulu.” (Complaint, First Cause of Action, Count I,

paragraph 3.) Cae ae fee .

It is clear that plaintiffs intended to assert that. tas had

been at the. Crossroads sanctuary for anti-Vietnam. war

adherents uri ing their respective periods of absence _—

than, as was stated in the complaint, during said “leay e,”

_ because, as I take it, there was no official leave. 4

The Complaint in the Marine case . was likewise accom-

panied by a request fora ‘Temporary Restraining Order and

‘Preliminary Injunction. In the Marine case, the three min-

ister plqintiffs were joined by one enlisted man of the

_ Marine Corps “currently confined to the Correctional. Fa- :

a cility at. the Kaneohe Marine Corps Air Station. 7 ae

‘y to being so ‘confmed, Plaintiff ‘had: been absent from his

military On i had been at the Church of the Cross-*

roads in Honolulu, Hawaii from appr oximately September.

6, 1969 until September 11, 1969.” (Complaint, First Cause

| of Action, Count I, paragraph 3.) -

The Complaint in the Army case, did not’seek a Tem.

porary, Restraining Order although’a Preliminary Injune—

tion was sought. It would appear that at-the time of filing

this particular. complaint noné of thé followers of the ekg

- plaintiffs were incarcerated and ndne joined as parties

_plaintiff.. The Complaint does set forth, howey er, in para-—

graph 6, “That prior to approximately. October 5, 1969,

ae Plaintifé Warner did in fact visit certain inmates at -

said Stockade, including confinees Albert ‘King, Bry an

Bohannon, Allan Porter ‘and Mitchell Johnson, each of —

whom was confined for having earlier absented himself: from

‘the military service and seeking sanctuary at the Church

}

: hina ee ee |

of the Crossroads gn ‘Homeluta; Huwait < This was taken

‘from the First Gause of Action, Count I, paragraph 6.

~ A seeond count. of the first caise of action in-each of the

three complaints alleges that the efendants Ww ilfully: con-

- spired atnong themsely es to perform the acts complained of

By a Setiond- Cause-of-Action ‘allegation in each complaint,

‘it is.alleged that the defendants named: therein w ilful.y con-

me spired with nanted defendants of another or sother service

branch or branches to depri ive plaintiffs of their rights.

_The thrust of the Complaint i in the Navy case regarding

pe the confineec: plaintiffs is to: the effect that” they areheing -

deprived of their freedom to consult with ministers of their

_ own choice while in confinement at the Pearl Harbor Cor-.

rectional Facility. ae. :

The three complaints were fled on Nov ember 6, 1969, ear ,

- that afternoon a hrief- meeting was held in open - court. Z

- Thereafter. and from approximately 3:30 p.m. untif 8 00.

; p.m.’on Nov ember 7, “1969, and from 10:00 a.m. to 6:30 p.m.

on Saturday, Nov ember 8,'1969, plaintiffs and the defen-

dants pr padaied evidence. | a as. ;

~ At-the | outset, the, named plaintiff, Robert Long, named

in the Marines case, stated in. ‘open court that he had not” :

requested nor.did he desire the Sery 1¢96 of Johirs. Edinunds’

_or Brgok Hart as attorneys to represent him in this or any

action g@gainst military authorities and further that he did

not wish: to be a party plaintiff i in the Marine case, After.

si permitting conference by. Mr. Long with the attor nevs con: . ,

cerned, the Court ordered, without objection—in fact itw as

with the’ concur rence ‘of the. attornevys—that the namé of —

Robert Long be withdrawn from the pleadings as a nanied

ne Tee hee & eh Sse eee

° _— ' - s 18a = \.

. om

. _ * The Coirt by this-implies no’ finding of intent to find - -

any unethical conduct oh the part of plaintiffs’ counsel, -

“T_T think they ave’ ax explanation. whith covdted the sit-

* + uation, as far as this Court is concerned. ‘ar

s Thre being no prisotiers in confinement by tha Marine

Corps | or the Any, plaintiffs’ degnand for «a* Temporary ‘

Restraining Order against the Marines: was. abasdloged or

_ at least not pressed—P'n not quite. sure I remember whieh,

No such action havi ing been soucht against the Army; ouly :

= the demand against thy» Navy remained. | ‘

. By stipulation between the parpies, it wah agfeed that

A Plaintiff Bridges might visit Pearl Harbor on Sunday,

Novembeér 9, 1969, and the

“abstained from pressing the denam! far an’ immediate

~"Trther bea Restraining Orile ueainst the Navy pending

further heariti in the matter.

Court by this statement.

intiffs thereupon temporarily —

again dloes fiotimply that the’ praver for;a Temporary Re- j

. straining Order Was waived by plaintiffs. a ee

In this posture the matter avax continued over to Monday,

_Nowember 17,-190), the date previowsly set for hearing en

- “the Orders to Show Cause. ‘The Court ordered consoli-

' dation of the eases and the hearines’ for Preliminary In-

* junction and Permanént Injunction. The ¢ ‘ourt further ad-

. ited the partjés that all-evidenes which’ had previonsly

been taken and the éxhibits which had heep received in |

oitld he considered-to bea part of the record of

: to sliow cause without ihe héecessity of repe-

evidence

** the hea

* tition.

The matter came on for further hinting at 10:00 a.m. on

November 17, 1969, ‘an with’ brief recesses for lunch and

dinner epntinued on “until 8430 p.m. fn November 17, 1969,

and prior to commencement of the hearing to show éanse,.

. _ the Government filed Motions for Dismissg! in the cases _

against fhe Marines and against the Army. The UCouirt took

, these motion§’ under advisement but deferred sulings

” thereon, pending such durther showing? xs might be made

on the show cause hearing.

* The Court adjourned until 3:00 pm., November 18, 1969, |

Poteoeshse the commencing of a lengthy jury trial involving

. out-of-state parties in another matter earlier on the “18th.

The Court reconvened at 3:00 p-m. and heard testimony

- presented by plaintiffs and defendants until 7245 p.t. on

November 18th. The \ Court reconvened at 1:-p.m. on

sae 19, 1969,. to\ receive additiapalauthorities thé

rene desire to b ese and to settle aint.”

— The on ces ihe of counsel, set Saturday morn-

ing, November 27> 1969, at 9:00 a.m. for such final argu-

ments as the parties might desire to make and-as a dWaine

*for the submission of pertinent regulations heretofore re-.

quested by the defendants. I pregume that those reculatign?

are the ones that they quote in their final memorandum filed :

on November 21, 1969. -

Fhe plaintiffs at each of these hearings Gilieconent | to

_+ November 9, according to my reeqlleetion, renewed their.

demand for a Temporary Restraining Order fo remain-in

force until the Court's further decision on the issuance of ~

* preliminary injunction or a permanent injunction. The

Court in each instance denied or failed to grant plaintiffs’

demand because the Court felt that no sufficingt showing

chad been made to justify the issuance of such order.

The Court sspenf every spare. minute available wading

through ‘the tremendoasly exhaustive citations of authority

subinitted if support of tke contentions espoused by the

ee ~~ oy :

- ;

During the period of the Court’s search for legal pree- |

edents and. rationale, the Court did continue with all dis-

patch possible-to pe rmit the plaintiffs and the defyridants

to present such evidenwjary matter as they respectively,

desired. — : : ;

On November TS, 1968, by agreement between counsel for |

“.all*parties, Civ il No, 3080, the Army case, was dismissed

on the basis of certain understandings stated by such coun-

_ sel in open court, according te my revollection. .

[1] At this juncture, in going through all of this reading,

the Court has e®me to the conclusion that, in this particular,

ease, it must apply the doctri ine of non-rev iewability i in the -

- two remaining cases presented, meaning that, under the cir-

cumstances new appearing, this Court has no power to

review the military administrative determinations in ques-”

tion—here, the Navy and Mi.rine Corps determinations— -

which exclude the three éivilian’ ministers from military

installations in thie" vicinity+of Horiolulu,* Ltawaii, even P

though such action may deprive the confinee plaintiffs of the

‘services of the, minister-plaintifis “as ministers of their

a .

_ choice.

_ In this comnection, I might ‘point out that, in an address.

delivered by Chitf Justice Warren at the New York T ‘ni-,

versity Law Center on February 1, 1962, entitted “The Bill

_of Rights and the Military,” which was. one of the very

long notes cited by coifsel for plaintiffs, 37 New York

University Law .Review 18] at page 187, w ritten in 1962,

.the then C hief: Justice said, aanong other things: °

a a indisputable that the tradition ‘of our

ae country, from the time of the Revolution until now, has

| suppofted ‘the *nilitary esfablishment’s broad power to

- . ss , . es

: ss : : iy < £ ™

deal with its own personnel. The most obvi us reason |

is that the courts are ill- equipped to determine the

inppact upon discipline that. any paxticular intrusion -

upon: military authority might have.”

I think I indus say that this, in-my view, applies {n this

particular case to the military reservation al. so. The Court,

by the way, has also read other riotes such as the “Judicial

Review of Military Determinations and the EF xhaustion of *

Remedies Requireme nt” in 55 Virginia Law Review. 483,.

_and ‘a very long article in 6 California Law Review 379)

' entitled “Giod, tlie Army, and Judicial Review: thie In--

Service Conscientious Objector.” eas

Aithough the Chief Justiee was not in sympathy with

the majority, he did, point out in that New York Uni-

versity Law Review note, that in Cafeteridand Restaurant

» Workers Union, ete. v. Me ‘Elroy, 367 U.S. 886, 81 S.Ct. 1743,

6 L.Ed.2d 1230,°1961, where a short-order cook employed

- by a concessionaire ona militaty base was summarily re-

fused further security clearancé without hearing, expla-

nation, or opportunity to rebut, the Court- reached the

constittitional question of the power of Naval-authorities to

exclude persons from Naval bases, and by a five to four

vote, decided the question against.the employee. .

. Chief Justice Warren thet continues,

“IT joined Mr. Susties srennan’s s ‘dissent, which took

. _the position that the C ourt, while cone eding petitioner” S

right not to be injured arbitrarily by the Gov er nyient, as

* in fact made that right nonenforceable by refusing to

accord petitioner any — protection.” :

The Court believes that’ Chief Justice Warren: even

‘

though dissénting, expressed . accurately the law as, the —

Court determined it to be in 1962; arid tists Court has failed

22a

to find any compelling decision or reason to hold that the

_ law today as applied tod the present situation is any ‘dif-

ferent in principle from what it was determined to_ be. by

the’ Supreme Court of. the nied States in 1962. Granting

’ that the Cajfteria, Workers tase was decided by a five to

four decision, it nevertheless still appears to stand as the .

law of the land and this Court feels it should 4% followed

‘until and unless oyerruled by higher authority.

If the Court went into the facts“of this casé argl so forth

_-and didn’t reach this conclusion, it could. write for weeks

_¢oneerning various ramifications of the problem presented,

but to do so would be to do the very thing Ww hich this Court

is holding it lacks powér to do. --

In passing, the Court might make.the observation that

-it has been confronted. w ith a situation which is- not at

‘Cl unique. ‘The Court out of the blue was asked _to issue.

a Temporary Restraining Order for the protection of three .

ministers and a group of iilitary confikees.” It was alleged -

that they were being deprived of Constitutionally guaran-

teed rights. “All judges recognize this situation as being

one which demands immediate co onsidleration.. Fhe Court

has made every reasonable effort to keep abreast of : the

trends énunciated by the courts, particularly in the area

of individual Constitutional rights. :

-The Court has prev iously had problems dealing with eon-

scientions objectors, in anc out of the 4nilitary, before it.

-When confronted with the particular requests presented by

the- three complainants herein, chow ever, this*Court did not

have a firm or fixed res lution within fingertip grasp and

- evidentiary hearings we as immediately undertaken so that,

without delay, every aspect’ of. the problem could- be ex-

plordéd. ; ee

—

- - - : " {

.At the same. time, with all the facilities available to it,

the Court undertook to‘sort through the my riad of deci-

sional material and the other pertinent periodical writings. 7

The Court did not reach the eonclusion, “expressed just now

until after this @i@trtaking had been accomplished. ” Coinci-

dental with this result cime the end of the evidentiary

hearings.

Now, having heard all of the evidence ieivemaibek’ it is

exceedingly difficult for this Court to refrain from discuss-

ing the facts as the Court believes them to be, in, thy light .

~ and: context .of analegous decisions rendered by other

courts. The Court, however, for egoes this temptation with- .

out apology to brother jurists wlio pav e succynbed to the

temptation The Court will not gé into all the various

ramifications ; however, the Ceart will make this gr atuitous

comment that were. this Court tg held otherwise than it

‘did on the first basie issue, and: were the Court: te hold

_ that. it had the’ power to determirie all of the questions

" raised, the Court believes that upon all of the facts before

- the Court, that the end result would not -be different, not-

withstanding the wepines sses in the testimony shown by the

plaintiffs. :

In this connection, I might s say that there’ are: ‘some sub-

sidiary issues to be ruled. on, which ofcourse ‘the Court.

doesn’t have to degide, but will decide,-in case this action

eges up on appeal, as I’m sure it will and T hope it does,

beeause I'd like to see whether’ or. not Cafeteria Workers

versus McEtroy means what-it s says. If it doesn't the Su-.°

preme Court ought to tell us so.

_[2] First .of all, I believe that the plaintiffs,. notiith-

standing the Gov ernment’s position, had the necessary nex-

“uses, as I believe at least-one decision have read say 8,

6 enable them to have standing to sue if this Court. has

nr ae

—*

an extranely vulnér able “position ‘and are

ag + 24a 2 ~

: . 4 ;

jurisdiction to hear this ease. They are. affected by the.

order an® to that extqnt I believe that, although they are

of peopla who wish to consult with them, I believe that

the Courts would generally hold that there were sufficient

- hexuses established-to give’ them standing to sue.

YTnasmuch dis this question ds going. to recur from time

t6 time and there is still a continued situation in one of”

the cases where the claimed rights of at least one confinee

are still not mooted, the Court believes that the withdraw-

ing of the other plaintiffs would not deprive the Court -of -

jurisdiction ‘or moot the casé, if it had jurisdiction. +

The Court believe that the record w il show other rulings

made by the Court.on evidence and other matter that don’t

“need: to be mentioned here, but 4 will clos se by saying. that

the Court’s decision on the first’and the major anal control: ’.

ling’ point is influeneed, among other things, by the im:'

portance of the Naval Base here and. the military bases —

herd, particularly. the Nayal and Marine reservations, in,

—¢claiming incidentadly or as part of their rights, the rights -—

cluding the fact. that.we have a nuclear submarine base, +

we have’ various other essential parts of the effort to carry

out what are still the policies of the nation. regardless. of”

what the opponents - ; of the Vietnam war may. say. It is

still the national poliey. to prgsecute the Vietnam action.

The Admiral’ ytffl has the duty to-enforee that ngtgnal

policy ; and the bases in. the middle of the Pacific} are in

int

to the prosee ution of that policy, and the Court feels that,

yrider all of the circumstances disclosed by the whole record,

the situation calls for* the application af the doctrine this

Court has above enunciated—that, in this particular typé

.of case as shown by these particular circumstances with

'- respeet to these particular, Naval reservations, the Court

cd ~

— salle .

—_—

- 25a

should refrain from interfering with the determinations

of the military and not try to tell the military what to do

in these highly: important. administrative: dlecisions..

| Now, thevreporter will please have this typed out and the

- Court will edit it as soon as possible and this will constitute _

- the findings of fact and conclusions of law, unless further

’ Dnes are asked. aio ’ ii

I wish to gredite this matter ; cea I am stre which-

ever parties are inv oly ed, if they are going to Silt will .

want to appeal as soon as possible. - =.

Notw ithstanding the fine legal points so ably argued by

extremely able counsel for the plaintiffs, the Court cannot.

find here, and does not find the existence of any conspiracy.

Therefore, if the Court has the power to decide the matter:

of the existence or non-existence of a conspiracy, raised i in

_ two places in the tomplaint; the Court rules that conspiracy |

_ has not been established. ,

For the reasons - above mentioned the remaining com-

susat in Civil Nos, 3078 and 3079 are her eby dismissed.

ator ; Sr <

26a aa eo

Judgment of ‘the United on District Court oa

UNITED STATES DISTRICT COURT

| _ For THE Distruct OF. Hawau, ae:

Ow il Action File No. 3078

REVEREND GENE Brivcrs, et al.

V. :

a Naval District, United States Navy, et al: e

- This aetion. came on for trial (hearing ) before the Court,

-Honorasie C. Nits Tavares, United States District Judge,

presiding, and the issues havi ing been duly’ tried (heard)

~ and a decision havi ing Ei duly rendered,., °

Ir Is. ORDERED AND ADJUDGED that this case is ‘iil

for lack of jurisdiction. -

Dated at’ ay Hawaii, ‘this 22nd day of Nov ember,

- 1969. a

- ee hea oe --s Water A, Y. H. Cuixn ,

ee a ; Clerk of Court

pa te: By: (Signature Tllegible)

gai Deputy. Clerk _

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.