# Petition for Writ of Certiorari — Perkins v. Laird > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0415%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 965 ## Text | ‘ : 7. Mare "Supreme Court, ae a We SSS ran L k LL-E p. SUPREME COURT, UV =. DR cach, Des pec 14 : ae Supreme Cove of the Wik Seis be) “October Term, 1971 ae MoT1- 70005: § | : CLIFTON DEAN PERKINS, ian q . ; i = _.._Petitioner, — oa 8 ee ’ af ° Vs. ental Se —- R. LAIRD, Secesiany of ‘Defense, le - : cs _ Responde’ wt. PETITION FOR A WRIT OF CERTIORARITO = . ‘THE UNITED STATES COURTOF APPEALS © 77 .. | FOR THE EIGHTH CIRCUIT , | | WARREN -SPANNAUS —___- bi ead Attorney General -© _ waa JOHN M.. “MASON » — - Solicitor General | a | _ PHILIP W.GETTS f- RICHARD G. MARK ~4 : - Special Assistant —_— nee Attorneys General | . a Attorneys for Petitioner { oe -160 State Office Building / ra bie ea Saint Paul, Minnesota 55155 December 15,1971. ee TUS tte ae ENN 224-7651 — _Review Piblishing Co., 287 . 6th St., St. Paul, Minn. 55101 — 224-7631 ~ ” e a INDEX — na nai . PAGE Opinion Below ....-:------1 see" eee eae 1 Jurisdiction ....---- sous me Pik been dee 2 Question Presented +o oitatds Wie ieecake fed : 5 ie tae Shee 2 Constitutional Provisions Involved =o oa aan 2 Statement of Wi Wile Foes ing ie a x Se ' >: Reasons for Granting the Writ | eee ee Scene toa ee —The decision below decides an important eictibel 4 | of federal law concerning jurisdiction over claims y/ by = of denial of liberty which has not been, but om ‘DR settled by thig OMe... 2-5 e se, fy atl sai Dee fu ( ‘TI. The decision. of the court below i is ih ciniflict with if e the*other federal courts on the same issue:..... of: 6 ee Conelusion Se sig RL ILS | is cca cactg skeen eh tl Fi. tah 9 , . - Appendix: . ae | Eighth Cireuit Court of Appeals Opinion ... cum . District Court Memorandum Order Granting ’ | Motion. to Dismiss .....- Owe sn caer teres ots A-2. - Complaint . ey Mey er ai yu S cae atv ci Ad. ce ) Plaintiff's Interrogatories to Defendant ° nade Rage a as A-13 Motion to Dismiss ......... Ene eres ea, . A162 7 a TABLE OF AUTHORITIES Cases! sae ae - BAGE Berk v. Laird, 429 F. 2d 302 (2d Cir. 1970), _ cert. denied, 92 S. Ct. 94 (1971) ........... ¢. 4, 5, 7,8 | Davi v. . Laird, 318 F. Supp. 478 (W.D. Va. 1970). ¥ Ee 7 Flast v. Cilia, 392 U. S: 83 (1968) Bes 2 e . Betis ee ee Giaccio v. Pennsylvania, 382 U.S.: 399 (1966)... . 3 6. Greene v. McElroy, 360 U.S. 474 (1959) itt Xaee ae 6,7 _ Holmes v. United States, 391 U.S!936, ¢1968) - eae 5 "Kent v. Dulles, 357.U:S. 116 (1958 ae eee Luftig v. MéNamara, 373 F. 2d 664 (D. C. Cir.), , cert. denied, 387 U.S. 945 (1967)... es. glee Massachusetts v. Laird, No. 71-1177 | i see 3 (1st Cir., Oct. 21, 1971) .....2 000.2... 2 AB Massachusetts v. Laird, 400 U.S. 886 (1970)... ASB Massachusetts v. Laird, 327 F.Supp. 378 (D. ‘Mass. __, eee BE ie Bina cae ee Mottola v. Nixon, 318 F. Supp. 538 - ee: _ (ND. Cal. 1970)... eos 4,5,7- - Ohio v. Wyandotte Chemicals —_ ‘ 401 U.S. 498 (1971) ..........0... nen ero A 5 Orlando v. Laird,. 317 F. Supp. 1013 (E.D. N-Y. 1970), aff’d 448 F. 2d 1039 (2d Cir:), cert. denied, 92 S. Ct. wate) .. .-.-.---:. ERR ~ a, Ae Pryor v. United States, 92 S. Ct. 23 (1971) Ars ay > S Switkes v. Laird, 316 F. Supp. 358 - (SD. N.Y. 1970) 2.2 See Eames Pe. a oe Cecelia: v. United States, cert. denied, ae : _ 92S. Ct. 289 (1971) ....... es oar Pinkeye Roe United States v. W. T. Grant Co., fice ee Se 345 U.S. 629 (1953) .......-5---, LISP ORES 5 Velvel v. Nixon, 415 F. 2d 236 (oth Cir. 1969), ear - cert. denied, 396.U.S. 1042 (1970) ..... i 47 Wisconsin v. Constantineau, 400 U.S" 433, (1971) Fe ents 6 United Se lease pcan: ; ; : | . ; ae , : Article I, Section 8 s es nets * Re Soe pits 27 ‘Amendment V cae erin Na: : Saas, fee ae | Statutes: ee . wo5 ! | “ is , “28 USS. § 1254(1) Beth Ede! Pass a isthe .*, 50 U.S.C. App. 451-456, 458-471 eae es oe Minn. Laws 1971, ¢. 120 ....J.:0.--:20weeteeeeess “28 : oat < ° 6 “ae ‘ool Pes Supreme Court of the United Siates . ’ iii a ae IN THE ar stnss sett 2 October Term, 1971 a7 e No. ; y 5 ; | 7) -. CLIFTON DEAN PERKINS, ~ | Tl gS aoe | : Petitioner, . \ my, ; * vs. | MELVIN R. LAIRD, Secretary of Defense, ; wee Respondent.. ’ ee Ye \ : PETITION FOR ‘ WRIT OF ‘CERTIORARI TO THE UNITED STATES COURT. OF APPEALS FOR THE EIGHTH Sees Ae ¥ writ: of certiorari issue ‘to review, the judgment and opinion’ ; of ‘the United States Court of Appeals for the Eighth cake a entered in this proceeding on ‘September! BUN 1971. ~~ fh OA “The opinions of the Court: -of Appeals and: of the og r in ‘the seca Petitioner Clifton Dean ‘Perkins. ‘ialiadiaty: prays. that | a / 4 OP NION BELOW Roba Cae JURISDICTION - » The. judgment of the Court of Appeals was. entered ‘on , September 17, 1971, and this petitjon -is filed within 90 days : of that date. This -Court’s jurisdiction is invoked. under 28 U.S.C. § 1254(4). QUESTION PRESENTED * . “ May the Government, in the absence of a declaration of war, compel involuntary military service in armed international conflict?” — za CONSTITUTIONAL PROVISIONS INVOLVED ‘The Constitution of the United States, Article I, Section g, provides in part: The Congress shall have the powers: --To declare war, grant letters of marque and sabetiah and make Tules sec ata captures on land and water; .. . Amendment Vv pravides in part: No person shall . . . be deprived of life, liberty, or property ‘without on process of law. , , « - . 3 " ? ° - . > e - 'STATEMENT OF THE CASE Petitioner Clifton’ bens Perkins, a resident of the State of Minnesota, was conscripted into. and is now serving . in the United States Army pursuant ‘to the Military Selective Service. Act of 1967, 50 U.S.C. App. §§ 451-456, 458-471. On April 1, 1971, petitioner was ordered to report for combat ayty in Vietnam. On May 24, 1971, petitioner, represented by Minnesota Ac torney Generdl Warren Spannaus pursuant to the provisions - of Minn. Laws 197i, c. 120, commenced this action in United States District Court for the District of Minnesota. The acffon was filed pursuant to 28 USC. § 133I(a) es.a civil action wherein the sum in.controversy exceeds $10,000, exclusive of " interest and costs, and arises under the Constitution and laws P the United States. Petitioner sought an injunction and a declaratory judgment that the order sending him to Vietnam | ‘ deprived him of his liberty without due process of law. The suit is founded gn the simple proposition that no citizen may be compelled to participate involuntarily in international com-. bat absent a declaration of war. . Sachs Gatti of tania; Ce Bidet Geet Gudant petitioner's complaint on August 25,1971. On September 17, - 1971, the same day on which oral argument was heard, the Court of Appeals affirmed the judgment of the Distriet Court : in a one-sentence opinion. During the course of this litigation, petitioner’s transship- ment to Vietnam was enjoined by orders of the District Court. Upon the issuance of the mandate of the Court of Appeais, the - 1a of these injunctions was dissolved. Petitioner reported to the Oakland Army- Base, Oakland, California, and was reas-. signed to Ft. Snelling, Minnesota, where he is currently serving. . Heh 4 : > _ REASONS FOR GRANTING THE, WRIT I The Decision Below Decides an Important Question © of Federal Law Concerning Jurisdiction Over Claims ‘of Denial of Liberty Which Has Not Been, But Should Be, Settled by This Court No function of this Court is more critical tha& its funda- mental duty to protect an individual’s freedom from unwar- , ranted i incursions by the Government. Nowhere is the exercise of this duty more necessary than in the instant case, where the Government has deprived petitioner of his liberty by cori- scripting him into the Army and eompelling him to risk death or grave injury by ordering him to fight.in the Vietnam war. ' The Government will argue that Congress has implicitly con- — doned the commitment of armed forces to Vietnam and that _ this implicit ratification satisfies the Constitution. Petitigner contends that explicit Congressional approval of the Viena war is required before the Executive can compel him to forego his personal freedom. Such a. conflict can -only be—indeed, must be—resolved by this: Court. rf The instant case, unlike other “antiwar”, cases,' presents the issue in the posture deemed by Mr. Justice Douglas, Mr. wd ustice Brennan, and Mr. Justice Stewart to warrant granting certiorari: See opinion of Mr. Justice Douglas in Pryor .v. - United States, ‘92 S. Ct. 23 (1971);-opinion of Mr. Justice 1.A number of such cases have been filed in recent years. See; ¢.g., Luftig v. McNamara, 373 F. 2d _664 (D.C. Cir.), cert. denied, 387 U.S. 945 (1967); Velvel v. Nixon, 415 F. 20236 (10th Cir. 1969), cert. de- nied, 396 U.S. 1042 (1970); Mottola v. Nixon, 318 F. Supp. 538 (N.D.° Cal. 1970); Massachusetts. v. Laird, 400 U.S. 886 (1970); Orlando v. Laird, 443 F. 2d 1039 (2d Cir.), cert deried, 92 S.-Ct. 94 (1971); Berk v. Laird, 429 F. 302 (2d Cir. 1970), cert. denied, 92 S. Ct. 94 (1971). ay j . J j ‘ 5 Stewart in Holmes v. United States, 391 U.S. 936 (1968) ; _ opinion of Mr. Justice Brennan in Thompson v. United States, cert. denied, 92 S. Ct. 239. (1971).7 Other cases: re- jected for consideration by this Court have Secence such “concrete adverseness” * between, an unwilling citizen and the coercive Government. In Orlando v. Laird, 443 .F. 2d 1039 (2d Cir.), cert. denied, 92 S. Ct. 94 (1971), petitioners were enlistees who had entered the Army voluntarily and with full knowledge that they might be ordered into combat. In Massa- chusetts v. Laird, 400 U.S. 886 (1971), this Court declined to exercise its original jurisdiction to permit the State of Massa- - chusetts fq sue in its sovereign capacity and as parens patriae.* Only in Luftig v. McNamara, 373-F. 2d 664 (D.C. Cir.), cert. denied, 387 U.S. 945 (1967), was petitioner a conscriptee under orders to report for combat duty; however, recent decisiqns ® have discarded the rationale of Luftig, indicating that the issues brusquely rejected there now require consideration by this Court. :* | ‘ The issue of governmental power versus individual liberty presented by this case transcends the mere question of whether Clifton Perkins- must fight in Vietnam; the overriding ques- tion presented to this Court is whether the Executive may 2 Any contention that this case has been reridered moot by the can. celiation.of petitioner’s orders to Vietnam is belied by the fact that he may still receive such orfiers. In.any event, it is settled that. moot merely by ceasing the alle States v. W. T. Grant Co., 345 US. defendant cannot render a c edly illegal conduct. See Unit 629 (1953). ; 3 Flast v. Cohen, 392 U.S. 83, 101\(1968). _ . ; 4 See Ohio v. Wyandotte Chemicpls Corp., 401 U.S. 493 (1971). 5See, e.g.; Berk v. Laird, 429 F.2d 302 (2d Cir. 1970), cert. denied, 92'S. Ct. 94 (1971); Orlando v. ‘Laird, 317 F. Supp. 1013 (E.D. N-Y. 1970), aff'd 443 F.2d 1039 (2d Cir.), cert. denied, 92 S. Ct: 94 (1971);. Mottola .v. Nixon, 318 F. ny 538 (N.D. Cal. 1970); Massachusetts _ v. Laird, 327 F. Supp. 378 (D. Mass. 1971), aff'd No. 71-1177 (ist Cir. 1971). ° . . . oa tials the nation to war without Congressional sanction and x then tompel citizens to fight in such a war. As such, this ease ‘involves a threat to personal freedom more pervasive and real than other such “threats” reviewed by this .Courft See, e.g., — Wisconsin v. Constantineau; 400 U.S. 433 (1971) - (publicly posting the name of a habitual drunkard); Kent v. Dulles; 357 U.S. 116 (1958) (restricions on the right to travel abroad) ; Greene v. McElroy, 360 U.S. 474 (1959) (loss of jem ployment as a result of an | unautherized-security program) ;* ; - ~ Giaccio .. Pennsylvania, 382 U.S. 399 (1966) (taxation of -costs against acquitted criminal defendants). The ‘liberty of. thie thousands of citizens subfect : ‘eco compulsory military ser- . vice is at stake here, and only @, decision by this Court can. resolve this critical’ constitutional question. } II , ae The Decision of the Court Below Is in Conflict With Other Federal ‘Courts on the Same Issue The essence of petitioner’s claim. is that the executive branch . _ of government has deprived him of his liberty without the con- stitutionally required sanction of the legislative branch. Simi- ° lar claims have been presented to other federal courts, but: these ¢ourts have differed,sharply ovér the form and measure- of Congressional action required by the Constitution before the Executive may exercise its power to wage war and trans- D mute free Citizens into regimented soldiers. Because of the . grave consequences which follow a decision to commit the na- tion to war, the conflict among the lower’ courts requires a decision by this Court. . rien ae . A few federal courts, including, epparentiy, the lower court in the case at bar, have deemed the question ‘unworthy. of judi- cial scautiny. Lujtig v: McNamara, 373 F. 2d 664 (D. C. Cir. ). 9 . cert. denied, 387 U.S. 945 (1967) ; ‘Davi v. Laird, 318 F. Ses: 478 (W. D. Va. 1970) ; Switkes v. Laird, 316 F. Supp. 358 (S.D. N.Y. 1970) ; Velvel v. Nixon, 415 F. 2d 236 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970).. Recent decisions, how- ever, have rejected objections to standing and 5 justiciability and have attempted to reconcile the language of the Constitu- . | tion with the faets of this Nation’ 8 involvement in Vietnam. ® Unfortunately, these attempts have produced only inconsistent and unsupportable interpretations of Article I, Section 8. Two other Courts of Appeals have considered the issue in a different way. Neither decision resolves the question. In Orlando v. Laird, 443 F. 2d 1089 (2d Cir.), cert. denied, 92 S. Ct. 94 (197 1), the Second Circuit coricluded that certain acts of Congress implicitly ratified the war and thereby satisfied the constitutional requirement of joint action by Congress and the Executive: 443 F. 2d at 1042. The court based its decisign on passage of the Gulf of Tonkin resolution and military ap- igs propriations bills without considering ‘that the former had been repealed and that the latter do not, as a matter of law, signify Congressional approval of Executive action. Greene v. McElroy, 360 U.S. 474 (1959). Moreover, the court’s conclu-_ nstitution permits joint Congressional-Execu- n committing the nation to war ignores the spe- sion that the ( sion of Article I, Section.8, that only Congress—the Executive is not mentioned—shall have the power “‘to declare war.” ; The decision of the First Circuit is no more. conclusive. Instead of concluding that Congress had implicitly ratified the war, the court decided that the Constitution requires only: pas- sive Congressional raeanapeaet Massachusetts: v: Laird, No. 6 Berk v. Laird, 429 F. od 302 (2d Cir. 1970), cert. denied, 92 S. Ct. 94 (1971); Orlando v. Laird, 443 F. 2d 1039+(2d Cir.), cert. denied, 92 S. Ct. 94 (1971); Mottola v. Nixon, 318 F. Supp. 538 (N.D. Cal. 1970). ow ao 8 ‘ ; oh 1177 (1st Cir,, Oct. 21, 1971). The court determined that . because the legislative and executive branches were not in. op- - position, there was no necessity for determining the respective boundaries of the war powers of each branch. However, the Constitution protects individual rights, not the powers of the ~ three branches. The court’s abstract rationalization typifies the failure of the lower courts to resolve the fundamental ques- tion presented. here: may the Executive i impose the burdens of war on the citizen without the constitutionally required ap- proval of the citizen’ s elected representatives? The conflict among the Circuit Courts has caused the lower court here to render an opinion that is squarely at odds with the single case upon which it relied. The district court herein held that the question presented was.a “political question” and dismissed petitioner’s complaint for failure to state a claim . "upon which relief could be granted. The Circuit Court affirmed, . : citing only Orlando. v. Laird, 443 F. 2d 1039 (2d Cir.), cert. denied, 92 S. Ct. 94 (1971): However, i in the Orlando case, and in its related case, Berk v. Laird, 429 F. 2d 302 (2d Cir. 1970), the Second Cireuit specifically held that the controversy was not a “political question,” that. plaintiffs had standing, and _ that the complaint presented a claim upon which relief may be granted, 443 F; 2d at 1040. The Circuit Court in the instant case erred by inexplicably relying on Orlando to reach a con- ‘clusion diametrically opposite to the holding of Orlando. . . Thus; if this Court refuses to grant the writ of certiorari sought herein, petitioner will have been wrongfully denied the opportunity to adduce answers to his interrogatories and pre- . sent evidence to the district court.in. support. of “his claim of denial of liberty. As Mr. Justice. Douglas wrote in Massachu- setts v. Laird, 400 U.S. 886, 91S. Ct. 128 at 133-34 (1971): “We have never ruled, I believe, that when the Fed- - ‘eral Government takes a person by the neck, and sub- @ 9 bye mits him to punishment, imprisonment, taxation, or ,, Submission to some ordeal, the ‘complaining person . © may not be heard in court. The rationale in cases such as the present is that government cannot take life, jiberty,. or property of the individual and éscape ad- ae seen ” the courts of the legality of its’ actions. 1 _ The decision below has eutei petitioner his day in court in an opinion that i is contrary to the frule of the Second Circuit, a rule itself contrary to the rule of the District of Columbia Cir- ¢ cuit. This direct conflict among the Circuit Courts requires res- olution of these critical issues by this Court. CONCLUSION For the foregoing reasons, a writ of certiorari should. be - issued to the United States Court of Appeals for the Eighth me Circuit to review the decision of -that Court entered on Sep- tember 17, 1971. _ Respectfully submitted, WARREN SPANNAUS .. $ ; . Attorney General - JOHN M. MASON Solicitor General PHILIP. W. GETTS © RICHARD. G. MARS : \ Special Assistant Attorneys General Attorneys for Petitioner ‘160 State Office Building Saint Paul; Minnesota 55155 - (612) 221-2731 es ; ; APPENDIX wD Ss h E BIGHTH CIRCUIT coURT OF APPEALS OPINION - UNITED. STATES COURT OF APPEALS | FOR THE EIGHTH CIRCUIT eS ee a No. 71-1880 . | = ; CLIFTON DEAN PERKINS, | igre Appellant, , - VS. ms ra 33 MELVIN R. LAIRD, Secretary * Defense, oe Appellee. ‘ 4 APPEAL FROM THE UNITED STATES DISTRICT COURT. FOR THE DISTRICT OF MINNESOTA, FOURTH DIVISION ; Before VAN oostensiout, HEANEY and ROSS, Ciréuit Judges. ORDER» "The decision of the District Court dismissing the plaintiff’s -Somplaint is affirmed for the reasons set forth in Orlando v. Laird, 443 F. 2d 1039 Gna Cir. 1971). | ‘iba ee 17, 1971 ‘N = “ ave MEMORANDUM ORDER GRANTING — _ . MOTION’ TO DISMISS - UNITED STATES DJSTRICT COURT , ‘DISTRICT OF MINNESOTA — 3 FOURTH DIVISION/ ‘ .CLIFTON DEAN PERKINS; Plaintiff, Hei tea vs. eae MELVIN R. LAIRD, Secretary of. Vietouse, haere oi ‘ :( Defentlant. ‘ i the : : Se ORDER | ae . . No. 4-71-Civil 261 v. This Court on Je tine 25, 1971, denied a. vensibiuik by plaintift for a preliminary . injunction primarily on the ground that plaintiff is not likely to, prevail on the merits and has not He: shown a strong probability of success. *° Plaimtiff ha 1g since appealed the denial of the motion for : 2 prelimin&r injunction to the Court of Appeals for this- Circuit which will hear argument “in September. Plaintiff’s order to” report for ‘service in Vietnam has been stayed by this Court _ untjl,the decision of the €ourt of Appeals. >. | “ In the meantime plaintiff. has moved: for the production of. documents, specifically. the so- called “Pentdgon Papers,” and defendant has: moved to dismiss the complaint for: failu "e to state a ‘claim: ‘upon which relief can be granted. ~The Minnesota Lawyers Committee on the Constitutionality oe of the War in Southeast Asia has moved for leave to appear gs amicus curiae. That motion.was granted and that Committée _ | _ has: supplied tl the Court with an excellent and exhaustive brief, . o’ . War. Was a Pear ann =f ¢ a The ‘Court. has considered the arguments. and briefs of counsel and amicus curiae. art a ‘The June 25, 1971, Memorandum referred to several Trial Court and Court of Appeals . decisions which have considered . ‘the matter. By far. the greater pumber ¢ of those courts grarited , motions to dismiss and thus denied relief to theplaintiffs. This Court believes itself compelled to accept the décisions ‘of supe- rior appellate courts and fellow trial judges. The Supreme Court had the opportunity in the Massachusetts casé to review the matter, but declined to do so. ‘Undoubtedly some~of the cases decided last year and earlier this year (including this case) will again reach the Supreme Court. : The June ,25 Memorandum - stated that plaintiff's claim 7 lacked a strong probability of success for the reason that the - Ps éonstitutional question as to declaration or non-declaration of itical question, was not justiciable, or was . policy quest n for thie Congress. ‘The conviction,. rightly or ‘ wrongly, ap ears to be that the courts are not in position to . Oversee foreign. policy or position the armed forces. Plaintiff suggests that.there should be.a trial at this time on the’ question of ratification. Defendant claims that the re- pealed Tonkin Gulf resdlution’ was a form of. ratification. ; Defendait claims’ also that the repeated acts of Congress, which was Keenly, aware pe the hostilities in Southéast Asia, - in sappropriating substantial sums of money for the specific purpose of continuing’ the conflict indicated a ratification of ° | : the Presidential action. Plaintiff's response is that though " Congress regularly appropriated money for the continued hos- tilities in Southeast Asia, ‘that this was not its real intent and, further, .that Congress was misled or that it was not supplied with all of the relevant and necessary information. » * a LG Ns A MEET Ane 7 A-4 If the Court of Appeals returns the case of this Court for hearing, or if this Court retjuires additional trial, the question of ratification may then be inquired into. ITIS ORDERED: .~° . + 1. That the motion to dismiss the complaint be granted. 2. That the motion to ‘produce documents—the Pentagon Papers—beYenied, with the reservation that this motion may ‘be renewed in the event that later hearing or trial . _ may be required. “ EARL R. LARSON ~ United States District Judge August 24, 1971. COMPLAINT f » - {Caption Omitted] Clifton Dean Perkins, for his claim for relief herein, states and alleges as follows: 1. This is an action for nine and injunctive ‘relief brought under Sections 1331, 1332, and 2201 of Title 28 of the United States Code (28 U.S.C. §§ 1331, 1332, and 2201) as a civil action arising under the Constitution, lgws and treaties of the United States. The aniount in ‘controversy exelusive of costs; exceeds Ten Thousand and no/100 Dollars ($10,000). 2. Plaintiff Clifton Dean Perkins‘is a resident of the State - of Minnesota ‘and is a member of the United States Army, Serial Number US 473-58-5808. ; «6B. Defendant Melvin R. Laird is the Secretary of Defense and is.an officer of the United States government. He is a resident of.a state other than the State of Minnesota. - * . A-5 4. -On or about April 28, 1970, plaintiff was ordered to report ‘for induction into the United States Army,-pursuant to the provisions of the Military Selective Service Act of 1967 (50 U.S.C. App. §§ 451-456, 458-471). Plaintiff did not volun- teer for said service, and was conscripted pursuant to the provisions of said law. 5. -On or about May 28, 1970, plaintiff was inducted into the United States Army arid was assigned to Ft. Bragg, North Carolina, for basic training. Upon completion of basic train- ing, plaintiff was assigned to Ft. Belvgir, Virginia, where he ~ i AL AT ON A RC Ne OREN | Upon completion of advanced individual training, plaintiff was assigned to the 6th Armored Cavalry, “D” Company; and stationed at Ft. Meade, Maryland. ‘- 6. On or about- April 1, 1971, plaintiff was ordered to report, not later than June 5, 1971, to_ the United States Army Overseas Replacement Station, Oakland, ‘California, for ulti- mate -assignment to the Transfer Detacbment of the United - States Army Command for the Republic of Vietnam, (USARV TRANS DET). A copy of said Order is attached as Exhibit A. At_no time has plaintiff volunteered to go to Vietnam nor has he volunteered to participate in military or war activity . in -Vietnam or any other foreign country in Indochina. i. _ Upon information and belief: a The United States of Ameren ls presently engaged in a war known variously as the “Vietnam” or “Indochina” war The President end the Secretary of Defense have committed _ substantial numbers of persons to Spting Gs war. Not all.of _said persons volunteered to so serve. b. American involvement in the Indochina war commenced in 1950,-when the United States provided military assistance _ §}rFrench forces fighting in Indochina. After the abandonment gray; A-6 a of Indochinese operations iy French fo n 1954 and after ~ the signing of the Geneva ‘Aceords, the United States ; provided military assistance directly to various Indochinese + aowern- _,ments, pafticularly 4vhat is now the so-called Republic of Viet- nam, (hereinafter “South Vietnam”). & Initially such aid was provided by the United States * Military Assistance Advisory "Group, which helped to train . the South Vietnam army. By’ 1960, the number of such “ad- | visors” had been increased to approximately 700. The number of military “advisors” increased to approximately 11,000 by — the end-of 1962. This military assistance was furnished pursu- = to orders issued by the executive department, and at no | time did Congress declare war or in any other manner ratify United States involvement in Indochisa hostilities. | * qd. As the fighting in V jetnam continued and escalated, the United States increased its military. -aid to South ‘Vietnam. The executive department, through | presidential onders, in« creased the number of military “advisors” in South \Vietnam from approximately 16, 000 at the end of 1963 to approximately : 23,000 at the close of 1964. United States deaths due to enemy . action in Vietnam exceeded 200 at the end of 1964. . e. in August 1964, in response to alleged attacks by gun- boats of what has been called North Vietnam npon several United States vessels stationed in the Gulf of Tonkin, the President ordered retaliatory air strikes against the North Vietnamese gunboats and against enemy installations in Nv: th Vietnam. Congress then. passed a resolution authorizing certain executive action to protect United States military forces sta- tioned in ‘Vietnam, known as the. “Gyif of Tonkin” resolution. This resolution did not indicate any intent on the part. of Con- gress to declare war or to otherwise ratify prolonged United States participation in armed hostilities in Indochina, -_ was Ss. - repealed on December 30, 1970 ——r ‘A-7 & ™, . % f.- In the Spring of 1965, air strikes agdinst North Vietrram increased from approximately 160 to approximately 1,500; four ‘United States. marine battalions, including two combat units, were ‘dispatched to South Vietnam. ; g. By the end of 1965, approximately 1, 100 United States military personnel had been killed in the war, and more than 14,000 had been wounded. Over 350 United States aircraft were lost during 1965. By the end of 1965, over 184,000 troops were stationed in Vietnam. Congress at no time declared war or otherwise ratified participation in these hostilities. ee ‘h. United States involvement.in the Indochina war con- tinued to increase, with heavier bombing of North Vietnam, with increases in the commitment of combat troops to over 385,000 by the end of 1966, and with increasing” casualties. By the end of 1966, over 6,000 United States military person- nel had di®d as a result of the armed hostilities in Indochina, and more than 37,700. had been wounded. i.. The intensity of United States involvement in Indochina. continued to increase throughout 1967, 1968, and 1969. By the -close of 1968, more than 25,000 United States soldiers had been killed and.more than 190,000 had been. wounded. Approximate- ly 536,000 troops were stationed in Vietnam by the end of 1968. j. In 1969, the executive department announéed plans to reduce the number of United States froops committed to Indo- china hostilities. However, the United States continues to com- - mit substantial elements of its armed forces to the, Indochina war. “By the close of 1970, over 44, 000 United States military personnel had died in the Indochina war, and over 300 009 - had been wounded. k. No declaration of war against any-foreign state be been passed by the Congress, nor has Congress in any other manner 5) i on remem ines NALA M4 Mvpat ratified the United States’ prolonged involvement in the Indo- china war. l. The Order referred to in paragraph 6 herein, and at- tached hereto as Exhibit A, was issued by defendant and by persons acting under his control and direction. Defendant and persons actjng under his control and direction have no lawful or constitutional power or authority to order plaintiff to par- ticipate in this war, and said Order is unlawful. _m. Defendant and persons acting under his control and direction have ordered many thousands of other persons to" assignment to Vietnam,” and other foreign countries in Indo- china, which orders are also unlawful, since no lawful or con- stitutional power or authority exists for the issuance thereof. 8. Asa direct and proximate result of said. unlawful or- ders, plaintiff, ‘and many thousands of other persons, will be | compelled to ‘participate in an undeclared war in a foreign céuntry: Such participation will subject plaintiff, and many thousands. of other persons, to substantial danger of death.or grievous bodily injury ; to the extreme mental stress of com- bat; and to the various and manifold dangers of war, includ-. _ ing, without limitation, the danger. of being introduced to the use of marijuana, and heroin and other drugs, and other im- moral and unsafe practices, all without his consent. 9. Asa result of all of the matters: alleged herein, the ac- tions of defendant threaten to deprive plaintiff, and many thousands of other persons, of his: liberty and -property, and perhaps this life, without due process. of law in ‘violation of the Constitution of the United States, and will subject plaintiff ‘to involuntary servitude prohibited = the U.S. oan. Amend. XIII. . | 10. Unless nae and cnjetina’ defendant Melvin | R. Laird,. his agents and employees, and persons and parties un- A-9. der his control and direction, or acting in concert or participa- tion with said defendant, will require plaintiff, and many . thousands of other persons, against his will: to obey said Order attached hereto as Exhibit A or similar orders; to travel _ to Vietnam or some other foreign country in Indochina; to par- — ticipate in military activities in Vietnam or some other foreign country in Indochina; and to engage in a war in Vietnam or ~* some other foreign country in Indochina, although Congress has declared no war, and although said defendant and said agents, employees, and persons are without any lawful or con- stitutionat péwer or authqrity to do so, PS ree 11. Unless restrdined and enjoined, éitendant Melvin R. Laird, his agents and: employees, and persons. and parties un- der his control and direction, or acting i in. concert-or participa- tion with said defendant, will deprive plaintiff of his liberty _and property, and perhaps his life, without due process of law, ‘in violation of the Constitution of, the United States ; and. will subject plaintiff to involuntary servitude in violation of U.S. Const., Amend. XIII. Ps 12. Plaintiff has no adequate remedy at law. WHEREFORE, Plaintiff demands judgment as follows: I. ‘That this Court enter a ‘Preliminary and then a Perma- : nent Injunction restraining and enjoinjng defendant Melvin _R. Laird, his agents‘and employées, per ‘sons and parties under his control and direction, and any and all persons or. parties -acting in concert or participation. with him from doing any of the following acts: °° . : : ‘A. Requiring in any way, directly or indirectly, that slate: ~ tiff obey said Order attached hereto as Exhibit A; aid B. Requiring i in any way, directly or indiréctly, that plain- tiff travel to Vietnam, or any other foreign country in Indo- china; and ge s f ; 7. Me rerio pce et A-10 C. ‘Requiring plaintiff to engage in military or war activi- - ties in Vietnam or any other foreign country in Indochina ; II. That this Court declare said Order to plaintiff : attached to the Complaint as Exhibit A to be illegal, void, and of no force o effect ; and HI. at this Court declare that any and all Sets issued _by defendant Melvin R. Laird; his‘:agents and employees, per- sons anttparties under his control and: direction, and any,and all persons or parties acting in concert or participation | with said defendant, which Orders require any person not a volun- teer to travel to Vietnam or some other foreign country in In- dochina to participate in- military or war activities therejn, are illegal, void, and of no foree or effect. + IV. -Grant such other and further relief as is just and equitable. , - Dated: May 26, 1971. ea heey eS STATE OF MINNESOTA ' WARREN SPANNAUS te ad ee Attorney General | oe mes _ By JOHN M. MASON Solicitor General and PHILIP W.’GETTS Special Assistant Attorney General Attorneys for Plaintiff. _. Clifton Dean Perkins | . x 160 State-Office Building | Saint Paul, Minnesata 55101 : _ Telephone : 221-2731 le = >. State of Minnesota ‘County of Ramsey—ss. | . ‘Clifton Dean Perkins, being duly sworn, deposes and says — ¥ that he resides at 1000 Cityview Drive, Minnetonka, Minne- v -OPO S&L-No. VDX 6660 \ sota; that he is the. ‘plaintiff herein, and ‘that he -has read. the fotegoing Complaint and knows the contents thereof and that the same are true of his own knowledge except as to the’ mat- | ters therein stated to be alleged on information’ and belief, and — as to those matters he believes them to be true.. CLIFTON DEAN PERKINS +5. Subscribed and sworn ‘to before me this 26th day of May, | 1971. — Geraldine R. LaNasa, N otary Public, Ramsey County, Minn. My commission expires Jan. 24, 1978. _ EXHIBIT: A DEPARTMENT OF THE, ARMY _ Headquarters, Fort George G. Meade . Fort George G. Meade, Maryland 20755 SPECIAL ORDERS — : . 1 April 1971 ‘NUMBER 69 | EXTRACT 76. TC 202. Following reassignment directed. Individual will proceed: on PERMANENT epee OF STATION: as in- dicated. - PERKINS, CLIFTON D. 473-58- 5808 SP4 82C20 D Co, Ist Sqdn 6th Armd Cav (WG2UD0) FGGM MD 20756 ‘ ADMINISTRATIVE ACCOUNTING DATA Auth: SEPOS 031-P-26 erage at Aloc: Jun 71 = : a ° 2 “ —_— Al2 ngs: Lv adrs: 1000 Cityview Dr., Minnetonka, Minnesota 55343 — - Moos (curr tour) : NA PCS MDC: 4AE1 - PCCN: To be furnished CIC: 2114.03 - 5 Ultimate asg: USARV TRANS DET (WOBRAA) APO SF ~ . 96384 FOR THE INDIVIDUAL L% ae Assigned to: United States Army Overseas Replacement Sta- tion (WODEAA): Oakland Army Base, Qakland, California 94626 In country designator code - 4W. ° : Reporting date: 5 June 1971 oe ; - Leavedata: 2ldaysleave’ | sates Availability date: 5 June 1971 Port call data: Report to the United States Army Overseas Replacement Station (WODLAA) Oakland Army. Base, Oak- land, ae, 94626 on 5 June 1971 not later than’ 1200 hours. Special Instructions: (a) Consly with the hindi numbered ' « items of Department of the Army Supplemental Instructions — (Appendix B Army Regulation 310- 0-10) : 14, 2%, 28, 36, 40, 48, 58, 59,62. ee: {b) Will proceed date: 10 Mey 1971 ert \ - (ec) Personal mail will be sent-to Personal Mail Section, : _ Army Post Office, San Francisco 93681. - *e& @:* ; a a\ ae . sy An8 ae noe a > a Ae ; “b & bp 43 EXHIBIT A tenet! exp "Para 76 so 69 this Headiginitern dated 1 Apri ‘71 Cont) “+ a THE COMMANDER: ©" 7 ah | , ELAM W. WRIGHT JR. | ee OFFICIAL: ee | ee : . | Chief of Staff ese DONALD R. KENNEDY -. ° ‘LTC, AGC os 7 Adjutant DISTRIBUTION: [Orhitted] INTERROGATORIES TO DEFEN DANT. 3 —_ Omitted] To; Defendant Melvin R.. Laird’ arid to - Robert’ A. Renner, United States District Attorney for the District of Minne- sota, United. States Courthouse, Minneapolis, ey his et attorney. - | “ wees ; Pursuant to the provisions of Rule 33 of the Federal Rules fe | of Civil Procedure, plaintiff demands answers, under oath, to the following Interrogatories within thirty: (30) days. | Fae | Ss you claim in any way that the. United States Congreks~ ie has ratified the war or any of the actions of ‘the Presitient. in - Indochina, identify with particularity eath and every Con- gressional act, law or resolution. which you claim constitutes such ratification, including, without limiting the generality of the foregoing, dates on which a claim each such event took place. a A-14 *, ' 2. If you claim in any way that a Congressional declaration Se of war by Congress regarding the Indochina war’ would invoke — tréaty or other obligations not now invoked, identify with | particularity Bach such claimed treaty or ‘other obligation, and. summarize the nature of each said obligations which you claim - would be invoked. “ If you claim i in any way that a Congressional aeciarati n of war would forestall, hinder, or slow dawn any withdrawal of. U.S. military personuel from Indochina, ‘state ‘with ‘particu- : larity the facts upon. which you base said claim. 4. If you claim in any way that a judicial proscription against sending unwilling United States citizens-to Indochina, © _. ‘absent a Congressional declaration of war, would forestall, . hinder, or slow down any withdrawal of U. S. military per- sonnel from Indochina, state with particularity the facts aia which you base said elaim. ° . 5. If you claim in any way that’ a judicial proscription’ has . against sending unwilling United States citizens to Indochina, absent a Congressional declaration of: war, would: render -inef- fective or hamper the conduct of foreign ‘policy by the Presi- dent or the Department of State, state the facts upon which you base said claim. Feit : 6. If you claim that at some futdire date no citizen will be sent involtintarily to. Indochina, state said date. . ~ 7.. As to each of. the following dates, state: a) the combined total number of U. S. military personnel residing or stationed in Vietnam ; and b) the total jnumber of conscripted or drafted . U. S.. military personnel residing wor stationed in Vietnam, ‘eéxpressed as an absolute number, and as a percentage of the total number of U. 8. militayf, persorinel in-Vietnam on each’ : . Je ‘ Seen - : t - gaid’ date: eats (2) een aay 6) (8) (9) (10): (a) 12) ~~. (13) (14) (15) (16) (17) eet ae » o:. 7. A-16', - “Of January 1; 1949. * ‘January 1, 1950 |. January 1, 1951 .-. January 1, 1954 January 1, 1959 | P January 1, 1960 fi January 1, 196 ‘ January 1, 1963 January 1/1964 January /1, 1965 » January 1, 1966 January 1, 1967 January 1, 1968 . January 1,:°1969 » January 1, 1970 May 28; 1970 | April 1, 1971 - June 1, 1971. / a-l6 If you do not have statistics available for.thé aid dates requested in the Interrogatory, then answer said ay with such data as is available near said dates. . * Dated: June 28, 1971. ; " STATE OF MINNESOTA >: WARREN SPANNAUS’ -% Att . G " ° . . By JOH M. MASON t Solicitor General .and PHILIP W. GETTS . Special Assistant . * _* 5 j Attorneys for Plaintjff - -* 160 State Office Building — | . St. Paul, Rinnesota 55101 (612) 221-2961 . ° MOTION TO DISMISS _— ‘ (Caption’ Omitted] _ - ° A _ Now comes the defendant in the above-dhtitjed ‘action and "moves this Honorable Court to dismiss the aforesaid action é.. aeserting therefore the following grounds: . : 1. Failure to state a claim upon which relief can be printed in that the complaint presents guestions whicif lack jiistic‘abil- ity and which are not susceptible to judicial determination. 2. Plaintiff lacks the requisite standing to sue. 3. - The Court lacks subject matter — 5 : f | Dates July 2, 1971 ty ‘ ROBERT G: RENNER . United Btates Attorney --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0415%3A1. Public record. Not legal advice.