# Petition for Writ of Certiorari — Bridges v. Davis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0314%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 919 ## Text ‘Supreme Court, U.S. FIL ED es ae 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 OO es a 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 —- SS Dated August 27,1971 . ma ion ae ee, oa a ‘ / i | ‘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 ~ . * > “ Z ” , 4 ; ~~ e * P e > ‘- : . a) m oy e ” . . ° ed & ¢ . : x f eo - oe Y ( rf ‘ ; ? m ai ° : e ees 7 ¢ ° ce 3 4 ty Taek t. > ° : * . - * > ¥ . . Regulations: : Section 07024, JN oa " Section’ 07 4 Névy Regulagions ap ‘sSection 0709. 1, Navy ss sa ata fa Sin ae . 4 St tutes: é ° : S / : go’ weweee cs f 10 US. C. $5031 fe). - sesso os U.S.C. su2b4(y . SO ake ay PETWIION FORA A WRIT OF CERTIORARI TO THE _ Ty, tas eo “Rupee Court of the Huited States. OcTOBER ay 1971 | 4 ‘ ; = ar ; " } 4 ‘ “ Re ews | etl aea ee ! bl pel op asm he ee | | ee aeer / : 5 . Poche, Wore > x ~ ' . a o oe. e / Y alan 2" , ; REVEREND Gen Brivais, et al., 4 , ; oe - Petitioners, : eS s : ote . 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 a 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: . \ ° - \\ a * - eo o . * - 1 . a 2 . 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 14 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.”). ” os 15 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 ag . - REVEREND GENE Brivces, et al., V. 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. —— 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 a) “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 . Pe 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 5a ete ed sponsibility”.. Bridges, by leiter, asked tha¥*he be per- mitted to give religious counselling andeonduct services Py . . rd : Oe Y oat sap % 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 J . * ° ad “d * * - . - . \ _ : : \ t , = é * ; .- Reverenp GENE Bainces et al., Pei OS Be - Plaintiffs, “ Vv. 4 . we ; ~~ Apmirat D. C. Davis é¢ al.,’ | Defendants. }. i Reverenn Gene, Brivces et al., z ; . m= | - Plaintiffs, Vv. ‘ ' “ - ; , Coronet D. McGovcu et al., ane os Defendants. ; Nov. 26, 1969 + 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 : © s - ; . 62 + 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- 4 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 —* Fd 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 ~ py — 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 em Judgment of ‘the United on District Court oa e- UNITED STATES DISTRICT COURT | _ For THE Distruct OF. Hawau, ae: Ow il Action File No. 3078 - i REVEREND GENE Brivcrs, et al. V. : _. ApmiraL D. ©. Dav Is, Commandant, Fourteenth 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. - a 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 _ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0314%3A1. Public record. Not legal advice.