Appendix — Scheuer v. Rhodes

No. 72-1318

ARTHUR KRAUSE, Administrator of the Estate

of Allison Krause, et al.,

Supreme Court of the United States

October Term, 1973

No. 72-1318

ARTHUR KRAUSE, Administrator of the Estate

of Allison Krause, et al.,

Petitioners,

vs.

JAMES RHODES, et al.,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES COURT

or APPEALS FOR THE SIXTH CIRCUIT

INDEX

Docket Entries and Documents in Krause Case

Relevant Docket Entries

Amended Complaint (July 6, 1970)

Motion to Dismiss and, in the Alternative, Motion for

Change of Venue Filed on Behalf of Defendants Del

Corso and Canterbury, with Memorandum of Law

in Support of Motion and Attached Affidavits and

Proclamations of the Governor (Aug. 17, 1970) ....

Motion to Dismiss Filed on Behalf of Defendant James

Rhodes, with Attached Memorandum in Support of

Motion (Aug. 17, 1970)

a

Memorandum of Law on Behalf of Plaintiff in Opposi-

tion to Defendants’ Motion to Dismiss (Jan. 18, 1971)

Answers to Interrogatories by Defendants Del Corso

and Canterbury (May 7, 1971)

Docket Entries and Documents in Miller Case

Relevant Docket Entries

Complaint (Aug. 24, 1970)

Motion to Dismiss Filed on Behalf of Defendants Del

Corso, Canterbury and White (Nov. 16, 1970) -.......

Motion to Dismiss Filed on Behalf of Defendant James

Rhodes (Nov. 16, 1970)

Motion to Dismiss Filed on Behalf of Defendants Jones,

Srp and Martin (Apr. 15, 1971)

41

82

87

Notated References to Opinions and Judgments Below,

Krause and Miller Cases

Memorandum and Order of District Court, Krause and

Miller Cases (June 2, 1971)

Opinion of Court of Appeals, Krause and Miller Cases

(Nov. 17, 1972)

Judgment of Court of Appeals in Krause Case (Nov.

17, 1972)

Judgment of Court of Appeals in Miller Case (Nov. 17,

1972)

Order of Court of Appeals Denying Petition for Rehear-

ing, Krause and Miller Cases (Jan. 3, 1973) ............

93

Civil =A. No. C-70-544

In the United States District Court

For THE NorrHERN \DISTRICT or OHIO

Eastern Division

ARTHUR KRAUSE,

Administrator of the Estate of Allison Krause,

6/10/70

7/ 6/70

7/15/70

8/11/70

8/17/70

Deceased,

Plaintiff,

vs.

GOVERNOR JAMES RHODES, et al.,

Defendants.

RELEVANT DOCKET ENTRIES

Proceedings

Complaint filed. Summons issued. 3 copies of

each, to Marshal.

Amended Complaint filed.

Summons retn. & filed. Served Robert Canter-

bury 7/1/70; served James Rhodes and Sylvester

Del Corso 6/22/70. Fees $12.48.

Summons ret. & filed. Served Sylvester Del

Corso & Robert Canterbury on 7/30/70; Served

Gov. Rhodes on 7/28/70. Fees, $12.48.

Motion of defts. DelCorso, and Canterbury to dis-

miss or in alternative for change of venue with

memorandum in support filed. Copies mailed

8/14/70.

8/17/70

8/17/70

9/22/70

1-18-71

3- 5-71

3-16-71

3-16-71

4- 4-71

5- 6-71

5— 7-71

5/27/71

6/ 2/71

2

Motion of deft. Gov. Rhodes for change of venue

with memo. in support filed. Copies mailed

8/14/70. .

Motion of deft. Gov. Rhodes to dismiss with

memo. filed. Copies mailed 8/14/70.

Interrogatories of plaintiff to defts., Governor

James Rhodes, Sylvester Del Corso, and Robert

Canterbury, filed. Copies mailed 9/21/70.

Memorandum of law on behalf of plaintiff in

opposition to deft’s motion to dismiss filed. Copy

mailed 1-19-71.

Memorandum of the plaintiff in opposition to de-

fendants’ motion for change of venue filed. Oral

hearing requested. Copy mailed 3-5-71.

Notice of the plaintiff of the taking of the depo.

of Raymond Srp on 3-30-71 filed.

Motion of the plaintiff to compel defendants to

answer interrogatories filed. Copy mailed 3-15-71.

Motion of the plaintiff to compel witness to an-

Swer questions pursuant to R. 37 filed. Copy

mailed 5-4-71.

Answers of Gov. James Rhodes to pltf’s inter-

rogatories filed. Copy mailed 5-4-71. .

Answers of Defts. DelCorso and Canterbury pltf’s

interrogatories filed. Copies mailed 5-5-71.

Deft’s Memorandum contra motion to compel

*witness to answer to Fed. rules of Civil Pro-

cedure, Rule 37 filed. Copy mailed 5/26/71.

*(witness Captain Raymond Srp)

Memorandum & Order filed. Connell, J. Com-

plaint Dismissed at Pitf’s cost. Copies to inter-

ested counsel.

3

6/25/71 Notice of Appeal by Pltf filed. Copies to Allo-

way, Brown & Sindell.

8/11/71 Certified record received in US.C.A. & filed

8/8/71. Case No. 71-1622.

2/12/73 True copy of Judgment from U. S. Court of Ap-

peals affirming judgment of District Court filed.

2/12/73 Opinion from U. S. Court of Appeals filed. (Rec-

ord Returned)

AMENDED COMPLAINT IN KRAUSE CASE

(Filed July 6, 1970)

Civil Action No. C 70-544

IN THE UNITED STATES DISTRICT COURT

For THE NORTHERN District or OHIO

EASTERN DIVISION

(Title omitted in printing)

AMENDED COMPLAINT FOR DAMAGES UNDER

U.S.C. TITLE 42, SECTION 1983, AND

FOR WRONGFUL DEATH

FIRST CAUSE OF ACTION

1. Plaintiff Arthur Krause is a citizen of the United

States who resides in Churchill Borough, Pennsylvania,

and is the only qualified, appointed and acting Adminis-

trator of the Estate of Allison Krause.

2. Allison Krause, plaintiff's decedent, was at all times

hereinmentioned the daughter of plaintiff Arthur Krause,

4

and plaintiff's decedent was at all times hereinmentioned

a citizen of the United States, and was an enrolled student

at Kent State University.

3. Defendant Governor James Rhodes at all times

hereinmentioned was the Governor and Chief Executive

of the State of Ohio and the Ohio National Guard was un-

der his command, authority, and control.

4. At all times hereinmentioned defendant Sylvester

Del Corso was the Adjutant General of the Ohio National

Guard, which is the military force of the State of Ohio.

5. Defendant Robert Canterbury was at all times

hereinmentioned the Brigadier General and Assistant Ad-

jutant General of the Ohio National Guard and was in

direct command and control of the national guardsmen

in question at the time of the occurrence referred to here-

inafter.

6. This action arises under United States Code Title

42, Section 1983, and under the United States Constitution,

which guarantees to all citizens Equal Protection of the

Laws and Due Process of Law.

7. At all times hereinmentioned all defendants acted

and conspired under color of statutes, ordinances, regula-

tions, customs and usages of the State of Ohio.

8. On or about May 4, 1970, defendants individually

and jointly ordered units of the Ohio National Guard onto

the Campus of Kent State University, which is an edu-

cational institution operated and controlled by the State

of Ohio, and which is located in Portage County, in the

State of Ohio.

9. Defendants ordered troops which they knew were

equipped with guns loaded with live ammunition onto

the Campus of Kent State University at a time when:

(a) Defendants knew there was no cause, or insuffi-

cient cause, for sending armed troops at said

time into said place; and

(b) Defendants knew said troops were not properly

trained in the correct and reasonable use of loaded

weapons when in the presence of civilians not

similarly armed; and

(c) Defendants knew that the presence of such troops,

so improperly trained, and so armed, under the

circumstances created an unreasonable danger on

\. the campus of Kent State University, creating

\\an imminent risk of injury and death to all stu-

dents then on the campus, including plaintiff's

decedent, Allison Krause.

10. The ordering of these improperly trained and

armed troops onto the Kent State Campus, on the part.

of these defendants in complete and utter indifference

and disregard for the lives of students on the Kent State

Campus, including plaintiff's decedent Allison Krause, con-

stituted culpable, gross, wanton and reckless misconduct

under the circumstances and arbitrarily, discriminatorily

and capriciously deprived plaintiff and plaintiff's decedent

of their rights to Equal Protection of the Laws and Due

Process of Law guaranteed under the United States Con-

stitution.

11. On the afternoon of May 4, 1970, a group of

students gathered together on the campus of Kent State

University. Plaintiff's decedent, Allison Krause, was

present at or near the gathering of students but at no

time did she engage in any provocation or form of vio-

lence towards any individual or national guardsman. At

the time, the national guardsmen, as described above, un-

der the command of defendant Robert Canterbury were

present on the Campus. Suddenly and without warning

and without cause or justification, National Guard troops

fired live ammunition at a large group of students and

people, intentionally, willfully, wantonly and maliciously

disregarding the lives and safety of students, spectators,

passers-by, and other individuals lawfully on the campus,

including Allison Krause, who was wounded by a bullet

fired by a weapon of a national guardsman, from which

wound she eventually died, thereby depriving her of her

life without Due Process of Law, and in violation of her

right to Equal Protection of the Laws. At no time did

defendant Robert Canterbury take any action whatsoever

to prevent his troops from so conducting themselves, and

such failure under the circumstances then and there exist-

ing. was an intentional act committed in willful, wanton,

reckless and callous disregard and indifference for the

lives of civilians present on the Campus of Kent State

University, including plaintiff's decedent, Allison Krause.

12. All acts hereinmentioned were done individually

and in conspiracy by these defendants and by other un-

known persons with the specific intent of depriving plain-

tiff and plaintiff's decedent of their rights to Due Process

‘of Law and to Equal Protection of the Laws, and these

acts were all done by all defendants and other unknown

‘persons under color of statutes, ordinances, regulations,

customs and usages of the State of Ohio.

13. Plaintiff says that he and his family suffered

great grief and distress as the result of the wrongful death

of his daughter, who herself suffered conscious pain prior

‘to her death, and that he and other beneficiaries had

an interest in the life of the decedent, Allison Krause.

SECOND CAUSE OF ACTION

1. By this reference plaintiff incorporates all of the

allegations of the First Cause of Action as though those

allegations were fully set forth herein at this point.

7

2. For this Second Cause of Action, plaintiff

that he is a citizen of the State of Pennsylvania,

that defendants are all citizens of the State of Ohio,

that this Court has jurisdiction of this Second Cause of

Action by virtue of the diversity of citizenship of the

parties.

3. Defendants ordered troops which they knew, or in

the exercise of ordinary care should have known, were

equipped with guns loaded with live ammunition onto the

Campus of Kent State University at a time when:

(a) Defendants knew, or in the exercise of ordinary

care should have known, that there was no cause,

or insufficient cause, for sending armed troops at

said time into said place; and

(b) Defendants knew, or in the exercise of ordinary

care should have known, that said troops were

not properly trained in the correct and reasonable

use of loaded weapons when in the presence of

civilians not similarly armed; and

(c) Defendants knew, or in the exercise of ordinary

care should have known, that the presence of such

troops, so improperly trained, and so armed, un-

der the circumstances created an unreasonable

danger on the Campus of Kent State University,

creating an imminent risk of injury and death

to all students then on the Campus, —

plaintiff's decedent, Allison Krause.

4. The ordering of these improperly trained and

armed troops onto the Kent State Campus on the part of

these defendants was negligent and careless, and the neg-

ligence and carelessness of these defendants as herein-

above alleged directly and proximately caused the wrong-

ful death of plaintiff's decedent, Allison Krause.

Causes of Action against all defendants for compensa-

tory damages in the sum of Owe Muuton Do.iars

($1,000,000.00), together with the costs of this action.

Wuerezrore, plaintiff prays for judgment on both

Causes of Action against all defendants for punitive dam-

ages in the sum of Frve Mriion Doiiars ($5,000,000.00),

together with the costs of this action.

/s/ Seven A. SUINpELL

Snowei., Some.t, Bourne, Markus

Srern & Spero

1400 Leader Building

Cleveland, Ohio 44114

781-8700

MOTION TO DISMISS AND ATTACHMENTS

IN KRAUSE CASE

(Filed August 17, 1970)

Civil Action No. C-70-544

IN THE UNITED STATES DISTRICT COURT

For THe Nortruern Disrricr or Oxn10

EasTern Division

MOTION TO DISMISS AND, IN THE ALTERNATIVE,

MOTION FOR CHANGE OF VENUE

1. Now come the defendants Major General Sylvester

Del Corso, Adjutant General of the State of Ohio, and

Brigadier General Robert Canterbury, Assistant Adjutant

General of the State of Ohio, and respectfully move this

Court, pursuant to Rule 12 (b) (1) of the Federal Rules

of Civil Procedure, for an order dismissing both causes

of action in the amended complaint herein because the

Court lacks jurisdiction of the subject matter:

(A) These defendants are sued in their representa-

tive capacity as military officers and agents of the sov-

ereign state of Ohio. Because it appears from the body

of the amended complaint that the matter involved is

one in which the State of Ohio is primarily concerned

and will be affected by any judgment rendered herein,

the action is one essentially against the State of Ohio

which has not consented to be sued by waiving its con-

stitutional right to sovereign immunity.

(B) Aside from Ohio being the real party in interest

and therefore immune to civil suit, defendants Adjutant

General Del Corso and Brigadier General Canterbury are

themselves immune to civil suit by the statutory law of

Ohio which this Court is obligated to follow.

2. Defendants Adjutant General Del Corso and Briga-

dier General Canterbury further move this Court, pursuant

to Rule 12 (b) (6) of the Federal Rules of Civil Proce-

dure, for an order dismissing plaintiff's second cause of

action in the amended complaint herein because the second

cause of action fails to state a claim upon which relief

can be granted.

3. In the alternative, defendants Adjutant General

Del Corso and Brigadier General Canterbury move this

Court to transfer this action to the United States District

Court for the Southern District of Ohio pursuant to Title

28, U.S.C.A. Section 1404 (a), for the convenience of the

parties, the welfare of the state, and in the interest of

justice. As more clearly appears in the affidavits of Ad-

jutant General Del Corso and Brigadier General Canter-

bury, hereto attached and marked as Exhibits A and B

respectively, the injury set forth in the amended complaint

herein arose in greatest portion in the southern judicial

district of Ohio; defendants are officials of the State of

Ohio with the welfare of this state demanding their con- _

10

stant presence in the capital; and the vast majority of

records needed for the trial of this lawsuit are found

in the southern district of this state.

Respectfully submitted,

Crasse, New1on, Potts, SCHMIDT,

Brown & JONES

By /s/ CHARLES E, BROWN

Trial Attorney

MEMORANDUM IN SUPPORT OF MOTION TO

DISMISS AND, IN THE ALTERNATIVE, MOTION

FOR A CHANGE IN VENUE

During the evening hours of May 2, 1970, the Mayor

of Kent, Ohio, Leroy M. Satrom, called the Governor’s

office of this state to report that violence and civil dis-

order existed in Kent, Ohio. Because available law en-

forcement was inadequate to suppress the eminent public

danger threatening Kent and its citizens, Mayor Satrom

requested that Governor Rhodes order the Ohio National

Guard to his city. Governor Rhodes, acting in considera-

tion of Mayor Satrom’s request for aid, authorized the

Adjutant General of this state:

“to maintain peace and order in the City of Kent and

on the campus of Kent State University in Portage

County . . . and through him the commanding officer

of any organization of said militia is . . . ordered

to take action necessary for the restoration of order

in the city and on the campuses aforesaid. (Executive

Proclamation issued 5 May, 1970, supplementing Ex-

ecutive Proclamation of 29 April, 1970, marked Exhibit

3 and attached hereto).

11

It was from the circumstances of public danger and the

responsive Executive Proclamation that plaintiff's alleged

cause of action arises.

MOTION TO DISMISS

1,A. The first part of this memorandum is submitted

in support of defendants’ motion to dismiss this action,

pursuant to Rule 12 (b) (1) of the Federal Rules of Civil

Procedure, on the ground that this Court lacks jurisdic-

tion over the subject matter. Adjutant General Del Corso

and Brigadier General Canterbury were acting in their

official representative capacities as military officers and

agents of the sovereign State of Ohio at the time plain-

tiffs alleged cause of action arose. It is defendants’ posi-

tion, Sank Sennen: Sney ee SANS: See Se AINE eee

they are immune from suit.

The first cause of action is brought by authority of

Title 42, U.S.C.A. Section 1983, against Adjutant General

Del Corso and Brigadier General Canterbury. Although

this federal provision provides a basis for bringing such

an action under certain circumstances, the statute must

be read in harmony with the federal constitution’s guar-

antees and protections. The Eleventh Amendment to the

Constitution of the United States commands that the doc-

trine of state immunity be part of the American jurispru-

dence saying:

“The Judicial power of the United States shall not

be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by citizens of another state... . (Amendment

XI U.S. Constitution.)

Hence, Congress is without power to enlarge the jurisdic-

tion of the federal district courts to include suits against

12

the sovereign states; Title 42, U.S.C.A. Section 1983, can-

not be read to this end.

A reading of the statute itself and the decisions inter-

preting it make clear that Section 1983 is not in deroga-

tion of the Eleventh Amendment nor the common-law

immunity of sovereign states. It was exactly such a suit

as this against a sovereign state through its officials as

nominal parties that Congress tried to prevent when this

federal statute was drafted. The language of the statute

confirms this conclusion when it-specifically states “every

person ... shall be liable”. (Emphasis added.) It would

not only be unconstitutional for this Court to permit plain-

tiff to sue the State of Ohio under the guise of naming

these defendants as nominal parties but it would clearly

violate the expressed intent of Congress. This statute

has been similarly interpreted in the case of Fowler v.

United States, (C. D. Cal. 1966) 258 F. Supp. 638 in which

the court stated at page 646:

“Turning now to the State of California, it is clear that

the word ‘persons’ as used in the Civil Rights Acts

(42 U.S.C.; 1983) does not include a state or its gov-

ernmental subdivisions, acting in its sovereign, as

distinguished from its proprietary capacity. Hewitt

v. City of Jacksonville, 188 F. 2d 423, 424 (C.A. 5th

1951), cert. den. 342 U.S. 835, 72 S. Ct. 58, 96 L.ed.

631 (1951); Sires v. Cole, 320 F. 2d 877, 879 (C.A. 9th

1963).”

And in headnote 16, of Fowler v. United States, Ibid, the

state’s immunity is applied equally to the state’s officials:

“Civil Rights Statutes do not afford any basis for civil

actions . . . against public officers acting in their of-

ficial capacities in good faith and in pursuance of fed-

eral or state law. 42 U.S.C.A. Sections 1981-1985,

1988.

13

The Fowler decision defines the policy behind the doc-

trine of sovereign immunity which, although expressed

in terms of the federal government’s immunity, is also

relevant to a state’s immunity from suit given the Eleventh

Amendment protections. Again at page 646 the court

states: ,

“The reason for this rule is a simple and fundamental

matter of policy which, in the words of Judge Learned

Hand in Greogoire v. Biddle, 177 F. 2d 579, 580-581

(C.A. 2d 1949) is to permit public officers to act un-

flinchingly in the discharge of their duties without

a constant dread of retaliation.

[17, 18] But even more important than these

considerations is the fact that, with respect to defend-

ant United States of America, the well-established

principle of law summed up in the phrase, ‘doctrine

of sovereign immunity’, stands as an unalterable and

impregnable barrier between plaintiff and any in-

junctive relief against this defendant.

Nor can the plaintiff evade the doctrine of sov-

ereign immunity by claiming that this suit is one

against officers of the United States, since a suit

against such officers is, in effect, a suit against the

United States itself and must fail because of the gov-

ernment’s immunity from suit. Larson v. pong

tic and Foreign Commerce Corp., 337 U.S. 682; 688,

69 S.Ct. 1457, 93 L.Ed. 1628 (1948); Maline v. Bow-

doin, 369 U.S. 643, 647, 82 S.Ct. 980, 8 LEd.2d 168

(1962) ; 10 L.Ed. 2d 15 (1963).

Stated another way, the sovereign cannot be sued

without its consent and any possible waiver of this

immunity, as for instance in the Federal Tort Claims

Act (28 U.S.C. Sections 1346(b), 2671-2680), must

14

be strictly construed. United States v. Sherwood,

312 U.S. 584, 589, 61 S.Ct. 767, 85 L.Ed. 1058 (1941);

Wallace v. United States, 142 F.2d 240, 243 (CA.

2d 1944), cert. den. 323 U.S. 712, 65 S.Ct. 37, 89 L.

Ed. 573 (1944); Candell v. United States, 189 F. 2d 442,

444 (C.A. 10th, 1951.)”

As expressed in the Fowler case, agents and repre-

sentatives of a sovereign state are equally immune to

‘civil liability with Section 1983 being no exception to

this Rule. The historial immunity of state officials rela-

tive to Section 1983 is considered in the case of Kenney

v. Killian, (W. D. Mich. 1955) 133 F. Supp. 571 at page 578

where the court concludes:

“This statute was originally enacted by the Congress

in the turbulent days of reconstruction following the

Civil War. Since then it has remained in a rather dor-

mant state and has not been substantially revised

or modified. It is only in comparatively recent years

that resourceful plaintiffs and lawyers have invoked

this statute as a basis for civil actions for money dam-

ages against public officials acting in the course of

their official duties. Although the statute remains

on the books and in force, it certainly seems clear that

the Congress by its enactment in the reconstruction

period never intended that it should be used as a basis

for civil actions for damages against judges, prose-

cuting attorneys, sheriffs, prison wardens, and other

public officers acting in their official capacities, in

good faith and in pursuance of State law. See Tenney

v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L.Ed.

1019; Francis v. Lyman, 1 Cir., 216 F.2d 583; Ginsburg

v. Stern, D.C., 125 F.Supp. 596, affirmed,3 Cir., 225

F.2d 245, by the Court of Appeals for the Third Cir-

cuit.”

15

' The case of Dunn v. Estes, (D.C. Mass. 1953) 117 F.

Supp. 146 further affirms that the use of the word “person”

in Section 1938 did not destroy the immunity of public of-

ficials. Heddnote 2 of this case states:

“Civil Rights Act, nothwithstanding the use of the

phrase ‘every person’ does not destroy immunity of

public officials from civil liability for consequences

of performance of their official duties. 42 U.S.C.A.

Section 1983, 1965(3).”

Further, in the Dunn decision at page 148 it is stated:

. if the act complained of was done within the

scope. of the officer’s duties as defined by law, the

policy of the law is that he shall not be subjected

to the harassment of civil litigation or be liable for

civil damages because of a mistake of fact occurring

in the exercise of his judgment or discretion, or be-

cause of an erroneous construction and application

of the law.

It is clear that Adjutant General Del Corso and Briga-

dier General Canterbury are agents of the sovereign state

of Ohio and, therefore, a suit brought against these agents

of Ohio is, in reality, a suit against their sovereign prin-

cipal. The agency relationship between Ohio and these

defendants in the situation at bar is beyond doubt.

Article IX of the Ohio Constitution provides for the

militia and further provides in Article II, Section 10,

that this state’s governor shall be commander-in-chief of

the military forces of the State. In accordance with Arti-

cle IX, Section 3, the governor is to appoint the Adjutant

General of the military force and pursuant to Section

5919.02 O.R.C., Brigadier General Canterbury is likewise

an agent of the state appointed through its commander-

in-chief. At the time plaintiff's alleged cause of action

16

arose, not only were defendants agents of the sovereign

state, but had been called to active duty by the governor

of Ohio under authority of Article IX, Section 4, of the

Ohio Constitution and Section 5923.231 of the Ohio Revised

Code. The fact of agency is affirmed by plaintiff's

amended complaint.

Justice Harlan stated in Maryland, et al. v. United

States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed. 2d 205 (1965)

at 14 L.Ed. 2d page 210 with reference to the relationship

between national guard personnel and the state exercising

control over them:

“Their appointment by state. authorities and the im-

mediate contro] exercised over- them by the states

make it apparent that military members of the Guard

are employees of the States, and so the courts of

appeal have uniformly held.”

It is apparent from a reading of the amended com-

plaint that plaintiff is not suing these defendants in their

individual capacity but rather is suing them as state offi-

cials, acting as representatives of Ohio at the time the

injury occurred pursuant to their duties on behalf of the

state under executive order. (See Exhibit 3).

The fact that the State of Ohio is a real and primary

party defendant in this action is substantiated by guide-

lines laid down by the Supreme Court of the United States

in the case of Ford Motor Co. v. Treasury Department,

323 U.S. 459, 89 L.Ed. 389, 65 S.Ct. 347 (1944). Although

this case was not brought under Section 1983, Justice

Reed’s opinion discusses the realities of sovereign immun-

ity. It is there written in the headnotes:

» “Where an action is authorized by statute against a

state officer in his official capacity and constituting

an action against the State, the Eleventh Amend-

17

ment operates to bar suit in the Federal Courts ex-

6 ee ee ee es

suit.

“The Eleventh Amendment, which provides that

the judicial powers of the United States shall not be

construed to extend to any suit against a state, denies

to the Federal Courts authority to entertain a suit

brought by private parties against a state without its

consent.

“The nature of a suit against a state officer as

one against a state within the operation of the Elev-

enth Amendment is to be determined by its essential

nature and effect.” (Emphasis added.)

There is little doubt that by the nature of this action

and its possible effects the State of Ohio is the real and

the primary party in interest. The litigation would ul-

timately determine and interpret the constitutional and

statutory rights, obligations, and powers of this sover-

eign when confronted by a future riot situation. Although

Adjutant General Del Corso and Brigadier General Can-

terbury are today the officials in command, the possible

outcome and effect of the litigation would be much broader

and more far-reaching than the interests of these nominal

defendants. The interests of this sovereign state are pri-

marily involved subjecting the State of Ohio to a lawsuit

which is violative of her Eleventh Amendment rights.

Although a sovereign may waive immunity and con-

sent to being sued, it is a matter of the state’s own con-

stitutional and/or statutory procedure as to how and

when such a waiver is to be accomplished. Unless this

state procedure is followed, a waiver of the state’s im-

munity cannot be claimed.

18

In order to decide the jurisdictional question posed by

defendants’ motion to dismiss, it needs be determined if

the sovereign state of Ohio has consented to the suit or

waived its immunity. As to whether there has been such

a waiver or consent to suit, the law of the sovereign hold-

‘ing the privilege must be considered.

Section 16, Article I, Ohio Constitution provides:

. “Suits may be brought against the state, in such courts

and in such manner, as may be provided by law.”

This constitutional provision is interpreted in the Ohio

Supreme Court case of Randabaugh v. State, 96 Ohio St.

513, 118 N.E. 102 (1916) holding inter alia that:

“The provision of the Ohio Constitution, Article I, Sec-

tion 16 . . . is not self-executing; and statutory author-

ity is required as a prerequisite to the bringing of

suit against the state.”

This rule has been consistently followed in subsequent

Ohio cases. See: State ex rel. Williams v. Glander, 143

Ohio St. 188, 74 NE 2d 32 (1947); Wolf v. Ohio State Uni-

versity Hospital, 170 Ohio St. 49, 162 NE 2d 475 (1959).

The United States Supreme Court case of Palmer v.

Ohio, 248 U.S. 32, 64 L.Ed. 108, 39 S.Ct. 16 (1918) is de-

terminative. It is there stated in the headnotes:

1. The right of individuals to sue a state in

either a Federal or State court cannot be derived

from the constitution or laws of the United States, but

only from the consent of the State.

2. Whether a state has given by a constitutional

amendment the consent necessary to permit suit to be

brought against it is a question of local state law as

to which the decision of the highest state court is con-

19

trolling with the Federal Supreme Court where no

Federal question is invoked.

3. Persons suing a state for damages are not de-

prived of their property without compensation, in vio-

lation of the 5th Amendment of the Federal Consti-

tution, by a decision of the court that the state had

not consented to be sued.

Therefore, the rule announced by the Supreme Court

of Ohio in Randabaugh and consistently followed in Ohio

is now controlling in this federal forum. The sovereign

state of Ohio has not waived its immunity and has not

consented to be sued in this instance.

1. B. Aside from Ohio’s sovereign protection of im-

munity from civil suit based upon Eleventh Amendment

guarantees, Adjutant General Del Corso and Brigadier

General Canterbury are themselves immune to civil suit

in a federal tort action by Section 2923.55 of the Ohio

Revised Code.

“Section 2923.55 Death or injury of rioter by use

of necessary force.

Police officers, special police officers, sheriffs,

deputy sheriffs, highway patrolmen, other law enforce-

ment officers, members of the armed forces of the

United States, and firemen, when engaged in suppress-

ing a riot or in dispersing or apprehending rioters and

after an order to desist and disperse has been issued

pursuant to Section 2923.51 of the Revised Code, are

guiltless for killing, maiming, or injuring a rioter as a

consequence of the use of such force as is necessary

and proper to suppress the riot or disperse or appre-

hend rioters. This section does not relieve a member of

the organized militia or armed forces of the United

pene Seger gor renmnca nal Amani crvdesied cad haces?

tary offense.”

20

That Section 1983, Title 42, U.S.C.A. is to be read in

the context of tort liability is certain. Headnote 9 pre-

ceding the decision in the case of Daly v. Pederson, (D.C.

Minn. 1967) , 278 F.Supp. 88 reads:

“Civil Rights Act is to be read in the context of tort

liability.” 42 U.S.C.A. Section 1981-1986.”

And on page 94 of this opinion, the court states this with

authority for the truism:

“,.. it is true that the Civil Rights Act is to be read

in the context of tort liability, see Monroe v. Pape,

365 U.S. 167, 187, 81 S.Ct. 473, 5 LEd. 2d 492

(1961) .. .”

Our 6th Circuit Court of Appeals in the case of Corbean

v. Xenia City Board of Education, (C.A. Ohio 1966), 366

F.2d 480, cert. den. 87 S.Ct. 776, 385 U.S. 1041, 17 L.Ed.

2d 685 recently followed a long line of precedents stating

the rule:

“We follow Ohio law in this tort action unless such

Ohio law offends federal law or the United States

Constitution Erie R.R. Co. v. Tompkins, 304 U.S. 64,

58 S.Ct. 817, 82 L.Ed. 1188 (1938); Williams v. Kaiser,

323 US. 471, 65 S.Ct. 363, 89 L.Ed. 3981 (1945);

Madden v. Commomvealth of Kentucky, 309 U.S. 83,

60 S.Ct. 406, 84 L.Ed. 590 (1949) .”

The Corbean case’s jurisdiction in federal court was based

upon Title 28, 1343 U.S.C.A. as is plaintiff’s first cause of

action. Plaintiff's second cause of action herein based on

diversity jurisdiction would similarly apply Ohio’s sub-

stantive law. (Erie R.R. Co. v. Tompkins, 304 US. 64,

58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Hence, because Sec-

tion 2923.55 of the Ohio Revised Code is part of this

states substantive tort law, under the Corbean doctrine,

this federal court must apply this Ohio immunity statute

21

in this situation thereby insulating Adjutant General Del

Corso and Brigadier General Canterbury from suit.

For this reason and because Ohio is itself the real

party in interest in this lawsuit and is protected by the

Eleventh Amendment of the United States Constitution,

it is respectfully submitted this motion to dismiss be sus-

tained.

2. Defendants Adjutant General Del Corso and Brig-

_adier General Canterbury move to dismiss plaintiff's sec-

ond cause of action found in the amended complaint for

the further reason that this second cause of action fails

to state a claim upon which relief can be granted. This

motion is made pursuant to Rule 12(b) (6) of the Federal

Rules of Civil Procedure.

This court’s jurisdiction over plaintiff's second cause

of action is based upon the parties’ diversity of citizen-

ship (Title 28, U.S.C.A. Section 1332). It is well estab-

lished that federal courts exercising diversity jurisdiction

follow the substantive law of the forum state. (Title 28,

US.C.A. Section 1652; Erie v. Tompkins, 304 US. 64, 58

S.Ct. 817, 82 L.Ed. 1188 (1938) ).

Section 5923.37 of the Ohio Revised Code provides

immunity for defendants Del Corso and Canterbury in

the situation at bar except in cases of willful or wanton

misconduct. This statute, part of this forum state’s sub-

stantive law, provides:

“When a member of the organized militia is ordered

to duty by state authority during a time of public

danger, he is not answerable in a civil suit for any

act performed within the scope of his military duties

at the scene of any disorder within said designated

area unless the act is one of willful or wanton mis-

conduct.”

There is no question but that defendants Del Corso

and Canterbury were ordered to duty by the Governor

of this state by authority of his position as commander-

in-chief of the Ohio National Guard. (Supplemental Execu-

tive Proclamation of 5 May, 1970; Exhibit 3 attached here-

to). Further, there is no allegation in plaintiff's second

cause of action that defendants Del Corso and Canterbury

acted with the willful or wanton misconduct necessary

to negate their statutory immunity which this court must

respect. ~

Although plaintiff's second cause of action does incor-

porate by reference the allegations of the first cause of

action, plaintiff continues in Sections a, b and c of para-

graph 3 to specifically allege only that defendants failed

to exercise “ordinary care”. If the plaintiff's second cause

of action is interpreted as having incorporated the allega-

tion of willful misconduct found in the first cause of action,

the second cause of action must be said to be self-contra-

dicting.

That such a contradiction would be the reality of

plaintiff's second cause of action if the willful misconduct

allegations of the first cause of action is read into the

second cause of action is shown by the case of Anderson

v. Commissioner of Internal Revenue, (C.C.A. 10 1936)

81 F.2d 457 at page 460. It is there written:

“This finding of negligence negatives the contention

that the damage was occasioned by the willful .. .

act of Anderson. Negligence and willfulness are mu-

tually exclusive terms. .. . ‘Negligence and willful-

ness are the opposites of each other. They indicate

radically different mental states.’ Standard Marine

Ins. Co. v. Nome Beach L. & T. Co. (C.C.A. 9) 133

F 636.

23

Although it is true that under the Federal Rules of

Civil Procedure plaintiff may set up inconsistent separate

claims, each claim itself must contain consistent allega-

tions. The case of Steiner v. Twentieth Century-Fox Film

Corporation (S.D. Calif. 1953) 140 F.Supp. 906 affirms

this rule of pleading in headnote 3 where it is stated:

“Inconsistent allegations can be made in separate claims

or defenses but not in the same cause of action. Fed.

Rules Civ. Proc. Rule 8 (a) (2), 28 U.S.C.A.”

Because Rule 8(f) of the Federal Rules of Civil Pro-

cedure demands that all pleadings be “construed to do

substantial justice” paragraph 1 of plaintiff's second cause

of action must be interpreted as not incorporating the

inconsistent allegation of willful misconduct on the part

of defendants Del Corso and Canterbury. To interpret

this incorporation paragraph of plaintiff's second cause

of action differently would result in the inconsistent and

mutually exclusive allegations of ordinary negligence and

willful misconduct in the same cause of action. Since

such allegations are mutually exclusive, each would negate

the other causing the second cause of action to fail ab-

solutely. Therefore, interpreting plaintiff's second cause

of action so as to accomplish substantial justice, this claim

must be said to allege only ordinary negligence against

defendants Del Corso and Canterbury.

For the above reason, it is now submitted that plain-

tiffs second cause of action is a claim upon which relief

cannot be granted and that defendants’ motion to dismiss

should be sustained.

of defendants’ alternative notion n for a change of venue.

Tua dias ch ke se an tee a eof

Pennsylvania against three officials of the State of Ohio

in a judicial district where, at most, only part of plaintiff's

claim arose. The claim is not made against those who

acted on the Kent State campus by “pulling the triggers”.

Rather, the claim here is brought against the state officials

who acted to create the situation from which the shooting

occurred. The decisions and orders of the state officials

providing the substance of plaintiff's claim arose in Colum-

bus, Ohio. (Exhibit 1, paragraphs 3 and 4; Exhibit 2,

paragraphs 4 and 5, attached hereto). It is, therefore,

the Southern District Court of Ohio which has the com-

pelling contact with the claim’s genesis and must be con-

sidered for purposes of change in venue the judicial district

where the claim arose.

Because a plaintiff's choice of forum is not an ab-

solute and uncontrolled privilege (Wright v. American

Flyer’s Airline Corp., (D.C.S.C. 1967), 263 F. Supp. 865),

the plaintiff's selection.is in no way determinative and

is of little value when the selected forum is not the district

in which plaintiff or defendant resides and when plain-

tiff’s alleged claim arose in greatest part in another judi-

cial district. (Glenn wv, Trans World Airlines, Inc.,

(D.C.N.Y. 1962) 210 F. Supp., 31.) The only contact of

this lawsuit to the Northern District Court of Ohio is

that the result of defendant’s actions manifested them-

selves there.

Further, all of the defendants in this lawsuit are state

officials and have duties to the State of Ohio which neces-

|

;

|

sarily demand their presence in the capital. (Exhibit 1,

paragraphs 5 and 6; Exhibit 2, paragraphs 6 and 7 attached

hereto). Because the convenience of state officials as wit-

nesses is to be given a higher priority than the convenience

of expert witnesses in determining the propriety of a mo-

tion for change of venue (Glickenhaus v. Lytton Financial

Corp. (D.C. Del. 1962), 205 F. Supp. 102), it must certainly

follow that when parties are state officials and their pres-

ence is sure to be necessary for many days (as compared

to a witness who testifies and leaves) the convenience

and efficacy of their public duties must be respected. ;

It is important to note that the State of Ohio demands

that suits brought against state officials be brought in.

the county of the capital; the theory being that such causes

of action arise at the capital notwithstanding the ultimate

injury results in another county. The purpose is, of course,

to permit state officials to remain in the capital where

they can most efficiently perform their duties to the state.

Section 2307.35 of the Ohio Revised Code demands:

“Actions for the following causes must .be brought in

the county where the cause of action or part thereof

arose:

‘(B) Against a public officer, for an act done by him

in virtue or under color of his office, or for neglect

of his official duty.”

The Ohio Supreme Court case of Meeker v. Scudder, 108

OS. 423, 1 O.L.A. 867, 140 N.E. 627 interpreted G.C.; 11271

(now Section 2307.35, O.R.C. supra) stating in headnote 4:

“Under Section 11271, General Code, actions against

. . . public officers having their official places of busi-

ness in Franklin County, and in no other county, can

be instituted only in Franklin County.”

Therefore, eVen though federal venue provisions are

controlling of this matter, since under the federal venue

provisions this cause of action is properly brought in either

the northern or southern districts of Ohio, the policy of

the state should control this motion for a change in venue

which rests in the discretionary powers of this court.

Another compelling factor for transferring this law-

suit to the southern district court is that the vast majority

of records which will be very relevant to this lawsuit

are located in Columbus. (Exhibit 1, paragraph 7; Exhibit

2, paragraph 8, attached hereto). There is no doubt but

that these records are more conveniently located to the

southern district court than they are to the district court

sitting in Cleveland, Ohio.

When all relevant factors are considered, we find that

the only element favoring the litigation of this suit in

the northern district court is that the results of plaintiff's

claim were realized within this court’s boundaries. When

this single element is balanced against the situs of de-

fendants’ alleged wrongful actions, the convenience of state

officials in efficiently performing their public duties, and

the availability of relevant public records to the respective

forums, the balancing determination is clear. A motion

for change of venue should be sustained. °

Respectfully submitted,

CraBse, NEwLon, Ports, ScHMupr,

Brown & JONES

42 East Gay Street

Columbus, Ohio 43215

Telephone: 228-5511

By /s/ CHARLES E. Brown

Trial Attorney

(Certificate of Service omitted in printing)

27

EXHIBIT 1

AFFIDAVIT OF SYLVESTER Det Corso

SraTe or Ox10,

County OF FRANKLIN, 8S:

Adjutant General Sylvester Del Corso, being duly

sworn, deposes and says:

1. I am one of the three named defendants in the

above captioned lawsuit.

2. Iama resident of Franklin County, Ohio.

3. All of the orders and decisions made by me in con-

nection with sending the Ohio National Guard onto the

Kent State Campus were made in the city of Columbus,

Ohio, located in the Southern District Court of Ohio’s jur-

isdiction.

4. At the time plaintiff's alleged cause of action arose,

I was in Columbus, Ohio, and not on the Kent State Cam-

pus.

2

5. My obligations and duties to the State of Ohio as

Adjutant General of the Ohio National Guard demand my

constant presence in this State’s capital where I maintain

my office and perform my daily duties,

6. If were to be kept away from my office in Colum-

bus, Ohio, for any period of time, it would be impossible for

me to adequately perform my duties on behalf of the State

of Ohio as its Adjutant General.

It appears from the Amended Complaint that a

great many records, files, and papers of the Ohio National

Guard are relevant and necessary to the final adjudica-

28

tion of this lawsuit. All of these records, files, and papers

are located in Columbus, Ohio.

/s/ Syvivestern Det Corso

Adjutant General Sylvester

Del Corso

(Jurat omitted in printing)

EXHIBIT 2

AFFIDAVIT OF Rosert CANTERBURY

SratTe or Onro

Country oF FRANELIN, SS:

Brigadier General Robert Canterbury, being duly

sworn, deposes and says:

1. I am one of the three named defendants in the

above captioned lawsuit.

2. Iama resident of Franklin County, Ohio.

3. I am also Assistant Adjutant General of the Ohio

National Guard.

4. Although I was on the Kent State Campus when

plaintiff's alleged cause of action arose, I made no deci-

sion nor gave any orders which caused any weapons to be

fired at the deceased Allison Krause.

5. The decisions to move the Ohio National Guard

troops onto the Kent State Campus were made in Columbus,

Ohio.

6. My obligations and duties to the State of Ohio as

Assistant Adjutant General of the Ohio National Guard de-

mand my constant presence in this State’s capital where

I maintain my office and perform my daily duties.

7. If I were to be kept away from my office in Colum-

bus, Ohio, for any period of time, it would be impossible

for me to adequately perform my duties on behalf of the

State of Ohio as Assistant Adjutant General of the Ohio

National Guard.

8. It appears from thao: Aanemiied-Cleunctelils tlhe

great many records, files, and papers of the Ohio National

Guard are relevant and necessary to the final adjudica-

tion of this lawsuit. All of these records, files and papers

are located in Columbus, Ohio,

/s/ Rosear H. Canreasuny

Assistant Adjutant General

(Jurat omitted in printing)

EXHIBIT 3

State of Ohio

EXECUTIVE DEPARTMENT

Office of the Governor

Columbus

PROCLAMATION

Wuezeas, in northeastern Ohio, particularly in the

counties of Cuyahoga, Mahoning, Summit and Lorain, and

in other parts of Ohio, in particular Richland, Butler and

roving bodies of men acting with intent to commit felony

and to do violence to person or property in disregard of the

laws of the State of Ohio and the United States of America;

and

30

WHEREAS, said unlawful assemblies and bodies of

men have by acts of intimidation and threats of violence

put law-abiding citizens in fear of pursuing their normal

vocations in the transportation industry; and

WHEREAS, local government officials, including sheriffs

and their deputies and municipal police departments, are

unable with their own forces to bring about a cessation of

violence and reduce the believability of threats of violence;

and

WHEREAS, troops of the Ohio National Guard, in coordi-

nation with the Ohio State Highway Patrol and local peace

officers, can bring about a restoration of confidence in the

ability of citizens to move freely in the conduct of their

business over the streets and highways of the State; and

WueEnreEas, the Mayors of many Ohio cities, after taking

counsel with each other, have urgently requested that the

Governor make available the troops of the Ohio National

Guard to assist in maintaining order and in restoring free-

dom of transportation movement,

Now, THEREFORE, I, James A. Ropes, Governor and

commander-in-chief of the militia of the State of Ohio,

do hereby order into active service such personnel and

units of the militia as may be designated by the Adjutant

General to maintain peace and order and to protect life

and property throughout the State of Ohio; and said Ad-

jutant General, and through him the commanding officer

of any organization of such militia, is authorized and or-

dered to take action necessary for the restoration of order

throughout the State of Ohio. The military forces involved

will act in aid of the civil authorities and shall consult

with them to the extent necessary to determine the objects

to be accomplished, leaving the procedure of execution to

31

the discretion of the commanding military officer desig-

nated by the Adjutant General.

The Adjutant General shall provide all transportation,

services, and supplies necessary for the militia; and all stat-

utory provisions requiring advertisement for bids in rela-

tion to their procurement are hereby suspended.

I command all persons engaged in riotous and unlaw-

ful proceedings to cease and desist from such activities.

The active military duty herein ordered is hereby

designated as service in a time of public danger.

This proclamation shall continue in force until re-

voked.

(SEAL or OHIO)

In Wrrness Wuezeor, I have here-

unto subscribed my name and

caused the Great Seal of the State

of Ohio to be affixed at Colum-

bus, this 29th day of April, in the

year of our Lord, one thousand

nine hundred and seventy.

/S/ James A. Rhodes

Governor

32 3

EXHIBIT 4

State of Ohio

EXECUTIVE DEPARTMENT

Office of the Governor

Columbus

PROCLAMATION

WuenreEAs, on April 29, 1970, the Governor of Ohio as

commander-in-chief issued verbal orders to the Adjutant

General of Ohio directing him to call-up such units of the

Ohio National Guard as in his judgment might be necessary

or desirable to meet disorders and threatened disorders re-

lating to wildcat strikes in the truck transportation in-

dustry, and to meet disorders or threatened disorders on

campuses of Ohio State University in Franklin County,

ond campuses of other state-assisted universities; and

WueEnzas, pursuant to Section 5923.231 of the Ohio Re-

vised Code, the Governor of Ohio thereafter on’ April 29,

1970 issued his Proclamation ordering into active service

such personnel and units of the militia as the Adjutant

General might designate “to maintain peace and order and

to protect life and property throughout the State of Ohio;”

and

WHEREAS, pursuant to the verbal orders aforemen-

tioned, the Adjutant General of Ohio called to active serv-

ice units of the Ohio National Guard and assigned them

variously to service in the City of Kent and on the campus

of Kent State University in Portage County, and on the

campus of Ohio State University in Franklin County. In

addition to divers specific assignments related to restora-

tion of order in the truck transportation industry; and

33

_ WHEREAS, it is desirable to make a written record, both

events and the derivation of authority exercised by person-

nel and units of the Ohio National Guard in Portage

County and Franklin County.

Now, THererore, I, James A. Ruoves, Governor and

commander-in-chief of the militia of the State of Ohio,

do hereby supplement my Proclamation of April 29, 1970,

by specifying that personnel and units of the militia as

may or may have been designated by the Adjutant Gen-

eral to maintain peace and order in the City of Kent and

on the campus of Kent State University in Portage

County, and on the campus of Ohio State University in

Franklin County, are included in the call to active service

hereinbefore referred to; and said Adjutant General and

through him the commanding officer of any organization

of said militia is and was ordered to take action neces-

sary for the restoration of order in the city and on the

campuses aforesaid. The military forces involved are

and were ordered to act in aid of the civil authorities,

and the Adjutant General was directed to consult with

them to the extent necessary to determine the object to

be accomplished, leaving the procedure of execution to the

discretion of the commanding military officer designated

by the Adjutant General.

The active military duty herein further delineated is

again designated as service in time of public danger. _

This Proclamation shall continue in force until re-

voked with my Proclamation of April 29, 1970.

(Szau or OxTO)

In Wrirness Wuereor, I have

hereunto subscribed my name

and caused the Great Seal of the

State of Ohio to be affixed at

34

Columbus, this 5th day of May,

in the year of our Lord, one

thousand nine hundred and

seventy.

/S/ J A. Rhodes

' Governor

ATTEST:

Ted W. Brown

Secretary of State

MOTION TO DISMISS IN KRAUSE CASE

(Filed August 17, 1970)

_ Civil Action No. C-70-544

[IN THE UNITED STATES DISTRICT COURT

For THE Nortuern District or Ox10

EAsTern Division

(Title omitted in printing)

MOTION TO DISMISS

1. Now comes defendant James Rhodes, Gover-

nor of the State of Ohio, and, pursuant to Rule 12(b) (1)

of the Federal Rules of Civil Procedure respectfully moves

this Court for an order dismissing both causes of action

in the Amended Complaint herein for the reason that the

Court lacks jurisdiction of the subject matter.

2. Defendant James Rhodes, Governor of the State

of Ohio, pursuant to Rule 12(b) (6) of the Federal Rules

of Civil Procedure, further hereby moves this Court for

an order dismissing plaintiff's second cause of action in

ee ee - -

the Amended Complaint herein filed for the reason that

said second cause of action fails to state a claim upon

which relief can be granted.

Respectfully submitted,

/s/ R. Brooxe Attoway

Attorney for Defendant James

Rhodes, Governor of the

State of Ohio,

17 South High Street

Columbus, Ohio.

MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS

the outset, it is apparent that defendant

sued in his capacity as Governor of the State

of Ohio, and in that capacity, he is clothed with the im-

nized by the Federal and State constitutions and statutes

as a necessary arm of the government, and is a constitu-

tional force.

4. It is clear from the allegations of the Amended

Complaint that no claim is made that defendant Gover-

nor James Rhodes, himself, directly and proximately

caused the death of plaintiff's decedent. It is further

clear that, if defendant Rhodes has any culpability at all,

it must be on the basis of his single act in calling the

Ohio National Guard to maintain order on the campus of

Kent State University on and about May 4, 1970. The

duty of the Governor with respect to the National Guard,

which is a part of the organized militia of the State of

Ohio (Section 5923.01, Revised Code) is expressed in

Section 5923.21, as follows:

“The organized militia may be ordered by the

governor to aid the civil authorities to suppress or

prevent riot or insurrection, or to repel or prevent in-

vasion, and shall be called into service in all cases

before the unorganized militia.”

and further, in Section 5923.22, which reads as follows:

“When there is a tumult, riot, mob, or body of

men acting together with intent to commit a felony,

or to do or offer violence to person or property, or

by force and violence break or resist the laws of the

state, the commander in chief may issue a call to the

commanding officer of any organization or unit of the

organized militia, to order his command or part

thereof, describing it, to be and appear, at a time

and place therein specified, to act in aid of the civil

authorities.

“No officer or enlisted man in the organized mi-

litia, shall refuse to appear at the time and place des-

a, ee

37

ignated when lawfully directed to do so in conformity

to the laws for the suppression of tumults, riots, and

mobs, or shall fail to obey an order issued in such case.”

5. Thus, it is seen that any act of defendant Rhodes

mentioned in the Amended Complaint of plaintiff, either

directly or by inference, was in pursuance of his powers

and duties under the Constitution and statutes of the State

of Ohio, and therefore the act of the State of Ohio itself.

With respect to actions against states, it is provided in the

Eleventh Amendment to the Constitution of the United

States, as follows:

“The Judicial power of the United States shall

not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by citizens of another state, or by citizens or

subjects of any foreign state.”

6. Thus, it is seen that Section 1983 of Title 42, United

States Code, cannot be construed to confer jurisdiction on

this Court to entertain a suit by this plaintiff against the

State of Ohio in its sovereign capacity. Furthermore, it

has been held under the Civil Rights Act, Section 1982 of

Title 42, U.S. Code, that civil rights statutes do not afford

a basis for civil actions against public officers acting in

their official capacities in good faith and in pursuance of

Federal or State statutes. See Fowler vs. United States

(C.D. Cal. 1966) 258 Fed. Supp. 638.

7. It should be noted that nowhere-in the Amended

Complaint is there any allegation that defendant Rhodes

did not act in good faith. And in no decisions under the

Civil Rights Act has recovery been allowed against a pub-

lic officer, acting under Federal or State statutes, where

bad faith was not alleged proved. Thus, in Gregoire

vs, Biddle, 177 Fed. 2d 579, . denied, 339 U.S. 949, 94

L. Ed. 1363, Judge Learned Hand analyzed the effect of

sovereign immunity on the acts of public officers as fol-

lows:

“It does indeed go without saying that an official,

who is in fact guilty of using his powers to vent his

spleen upon others, or for any other personal motive

not connected with the public good, should not escape

liability for the injuries he may so cause; and, if it

were possible in practice to confine such complaints

to the guilty, it would be monstrous to deny recovery.

The justification for doing so is that it is impossible

to know whether the claim is well founded until the

case has been tried, and that to submit all officials,

the innocent as well as the guilty, to the burden of a

trial and to the inevitable danger of its outcome, would

dampen the ardor of all but the most resolute, or the

most irresponsible, in the unflinching discharge of

their duties. Again and again the public interest

calls for action which may turn out to be founded on

a mistake, in the face of which an official may later

find himself hard put to it to satisfy a jury of his good

faith. There must indeed be means of punishing

public officers who have been-truant to their duties;

but that is quite another matter from exposing such

as have been honestly mistaken to suit by anyone who

has suffered from their errors. As is so often the case,

the answer must be found in a balance between the

evils inevitable in either alternative. In this instance,

it has been thought in the end better to leave un-

redressed the wrongs done by dishonest officers than

to subject those who try to do their duty to the con-

stant dread of retailiation. Judged as res nova, we

should not hesitate to follow the path laid down in the

books.” 177 F. 2d at 581.

-39

8. Further, the doctrine so announced was expressly

approved by the Supreme Court of the United States in

the case of Barr vs. Matteo, 360 US. 564, 571-72, (1959).

Indeed, in Barr, the Supreme Court even indicated that

allegations of malice are not sufficient to prevent the ap-

plication of executive immunity. In the instant case the

allegations fall far short of establishing any basis for the

abrogation of executive immunity.

9. While it is not alleged that sovereign immunity

has been waived by the State of Ohio, it is, perhaps, ap-

propriate to point out that such immunity .has not been

waived. Section 16, Article I, Constitution of Ohio pro-

vides:

“Suits may be brought against the state, in such

courts and in such manner, as may be provided by law.”

10. This provision has been held repeatedly not to

be self-executing and to require specific ‘authority in spe-

-cific situations. See Raudabaugh vs. State, 96 Ohio St.

513 (1917). In the same opinion, the Supreme Court of

Ohio cited the case of Palmer vs. State of Ohio, which was

subsequently affirmed by the Supreme Court of the United

States in Palmer vs. Ohio, 248 U.S. 32, 64 L, Ed. 108 (1918).

11. The public policy requiring the rule herein urged

is clear. Government can function only by uninhibited,

fearless and honest exercise of the best judgment of its

executives and administrators. If a Governor is to be sub-

jected to civil liability for the far-flung and unpredict-

able consequences of his act in moving to avoid or sup-

press riotous conduct, the effect on. government can only

be chaotic.

12. Defendant Rhodes further moves to dismiss the

second cause of action of plaintiff stated in the Amended

40

Complaint for the reason that this second cause of action

fails to state a claim upon which relief can be granted.

13. Irrespective of the position of defendant Rhodes

‘in the instant case as covered by sovereign immunity,

the second cause 6f action fails to state a ground for

relief, by reason of the fact that there is, in actuality,

‘no allegation with respect to defendant Governor Rhodes

that he did other than what he was authorized to do

under the statutes of the State of Ohio, implementing

his constitutional power as commander in chief of the

State militia. Further, it is clear from the allegations

of the Complaint that defendant Governor Rhodes in no

way had any direct contact with the implementation of

the instrument which caused the death of plaintiff's de-

cedent; therefore, if he were to have liability at all, it

must be on the basis of the doctrine of respondeat superior.

Again, there is no allegation of any act in bad faith on

the part of anyone. In these circumstances, it is pertinent

to give regard to the provisions of Section 5923.37 of the

Revised Code of Ohio, which provides immunity for mem-

bers of the organized militia under the following circum-

stances:

“When a member of the organized militia is

ordered to do duty by State authority during a time

of public danger, he is not answerable in a civil suit

for any act performed within the scope of his military

duties at the scene of any disorder within said desig-

nated area unless the act is one of wilful or wanton

misconduct.”

14. In the circumstances alleged in this action, it

is inconceivable that this defendant can be held culpable

‘for an act from which the actors themselves are held

exonerated.

41

15. It is, therefore, respectfully submitted that the

within motion should be sustained in its entirety, and

the complaint of plaintiff as against defendant Governor

James Rhodes should be dismissed and he be permitted

to go hence with his costs.

/s/ R. Brooxe ALLOWAY

Attorney for Defendant Gov-

ernor James Rhodes

(Certificate of service omitted in printing)

MEMORANDUM OF PLAINTIFF IN KRAUSE CASE

(Filed January 18, 1971)

Civil Action No. C70,544

IN THE UNITED STATES DISTRICT COURT

For THE NorTuean District or On10

Eastern Division

(Title omitted in printing)

MEMORANDUM OF LAW ON BEHALF OF PLAINTIFF

IN OPPOSITION TO DEFENDANTS’ MOTION

TO DISMISS

INTRODUCTION

The subject matter of this action atises out of one

of the gravest tragedies in American history. Never be-

fore has this nation witnessed such a gruesome bloodletting

on a college campus. Never before have members and

officers of a state militia fired upon unarmed student civil-

ians, wantonly inflicting death and injury without just

42

cause. It has always been the genius of our democratic

system to provide a remedy for injustice. Each branch

of government compliments the other, and provides adjust-

ments for deficiencies. There are times when the effective

remedy is a judicial one, or at least an effective part

of the total remedy. This case calls upon the Federal

Judiciary to exercise its historic function of providing a

place where issues involving the most basic rights of our

people can be aired. To be sure, there have been a num-

ber of investigations into what has become known as the

“Kent State Massacre”. Those investigations have raised

disturbing problems, but they have not provided the fami-

lies of these dead children the opportunity to obtain com-

munity judgment. Indeed, these families have had no

real opportunity to. present evidence and focus upon the

viewpoint that those responsible for the death of their

beloved ones shall answer and be held accountable for

their actions. It is essential to note that plaintiff Arthur

Krause has not brought suit against a single triggerman,

not because the triggermen are blameless, but because

accountability is initially critical at the highest levels of

government authority, and it would seem fitting that the

message of this lawsuit be perfectly clear in that regard.

Defendants are charged in the Amended Complaint

with intentionally violating the constitutional rights of Al-

lison Krause. They are charged with sending troops

onto the Kent State Campus without any cause whatso-

ever, knowing that their presence would almost certainly

and inevitably lead to injury and death. Plaintiff does

not contend that this tragic killing was the result of an

inadvertent or neglectful error, misjudgment or mistake.

It was-not the result of some kind of unwise exercise

of discretion. Plaintiff is not alleging that these defendants

were mistaken about the necessity of troops, or about

43

the: dangers: thane Senne: cate ep sate

Rather i ete cra of pt sags

dhe toh Kesehatan sex we toe ees

for sending these troops, with the knowledge. that the

presence of these troops created an imminent risk of death

on the campus, and with the specific intent of wantonly

inlet Oe GMD SA a A

campus.

Plaintiff asks this court: EE ON Te

any official’s lawful discretion or jurisdiction to formulate ;

and effectuate such a culpable course of misconduct? vhs

The purpose of defendants’ motion is not to deny

the truth of these allegations, but rather to urge that

even if they can be proven to be the truth, the plaintiff

is not entitled to any relief under the law of this land. :

All. plaintift Arther: Kenuse athe: isthe tights to a

hearing in this courthouse to establish what he has alleged

before a jury. He seeks redress for alleged violence

through the legal process in the best American tradition.

If no redress is possible in a courtroom, what can be

said in opposition to those who would seek it in the streets.

It is the practical need to encourage and provide redress

in court which underlies the Civil Rights Act, to provide

a peaceful channel for the airing and’ resolution of our

conflicts, no matter how fundamental they may be. In-

deed, it is this kind of case—one which addresses itself

to fundamentals—which the Civil Rights Act is designed

to cover. This Brief is devoted to reviewing the many

authorities which confirm that notion.

“4

"THEREFORE, NOT A SUIT AGAINST THE STATE

. OF OHIO.

rpepliiibansl: social’ Giad: tir sala. Ses Caskas sa

hi sactep il ‘against Ya Slate Ge Clas ga, Coeretore,

the doctrine of sovereign immunity should bar this action

against them under the Civil Rights Act. Such a conten-

tion is wholly inconsistent with U.S.C. Title 42, §1983,

which by its literal terms is specifically designed to create

a cause of action against persons acting under color of

of citizens. The language of the Civil Rights Act, itself,

refutes defendants’ contention. Certainly, Congress in-

tended and understood that various state officers, agents

and officials would fall within the ambit of persons acting

under color of state law. It would hardly seem likely

that Congress would pass a piece of legislation to protect

citizens against violations by state officials of their fed-

eral constitutional rights, only to have that legislation ef-

fectively nullified by state sovereign immunity. It would

seem anomalous to allow state officials through the

doctrine of sovereign immunity to immunize themselves

against a federal statute designed to protect federal rights.

_It is of no assistance to defendants to inject their

own characterization that they have been sued “in their

representative capacities”. They are sued herein as “per-

sons” who violated plaintiff's federal constitutional rights

while acting “under color” of ‘the state law within the

clear meaning of the Civil Rights Act.

Contrary to defendants’ contention, the Eleventh

Amendment to the United States Constitution has no ap-

plication whatsoever because this is not a suit “against

%

one of the United States”, It should ‘be noted that such 's

F P a3 = - \ . County 3

immunity. ‘Tine ta ted piel tna Sbtbet by thls

viatatals sucecanate, Soe eee Power ene Cane

the sovereign immunity doctrine. s

‘Defendants - cite Fowler D, U. s, 258 F. ‘hia es

(1966) in support of their contention that this is an action

against the state and is, therefore, barred by state s |

immunity. Fowler, supra, does not stand for any ‘such

proposition. The gravaman of the case was that the plain-.

tiff (State Chairman of the Ku Klux Klan) had failed to

show a sufficiently definite and complete occurrence to

constitute a violation of civil rights. ‘The court emphasized .

that ‘a mere threat or intent to violate plaintiff's civil rights

against the state or federal officials: Obviously, in the

present case, we are hardly dealing with an incompleted

threat or an uneffectuated intention. We are here dealing

with the tragic finality of death, allegedly the result of

specific unlawful actions taken by these defendants.

More critically, Fowler, supra, specifically holds that

public officials who act in their official capacities in bad

faith are amenable to suit under the Civil Rights Act.

One need only quote from page 4 of defendant's brief:

“Civil Rights Statutes do not afford any basis for civil

actions. . . . against public officials acting in their of-

ficial capacities in goed faith and in pursuance

of Federal or State Law 42 US.CA. Sections 1981-

1985, 1988”. (Emphasis added).

Fowler, supra, cites the cases of Hewitt v. City of

Jacksonville, 188 F2d 423 (C.A. 5th 1951), cert. den., 342

US. 835, 72:S.Ct, 58, 96 L.Ed. 631 (1951); Sires v. Cole, 320

F2d 877. (C.A. 9th 1963); Larson v. Domestic and Foreign

Commerce Corp. 337 US. 682, 69 S.Ct. 1457, 93 L.Ed. 1628

(1948); Malone v. Bowdoin, 369 U.S. 643, 82 S. Ct. 980, 8

L.Ed. 2d 168 (1962), and Dugan v. Rank, 372 U.S. 609, 83

S.Ct. 999, 10 L.Ed. 2d 15 (1963).. None of these cases in-

volve allegations of intentional misconduct and bad faith,

such as in this case now before the court. In fact, in Lar-

son, swpra, the United. States Supreme Court specifically

delineates the area of amenability to suit of state officials

at pages 701-702:

phe action of an official of the sovereign (be it hold-

ing, taking or otherwise affecting the plaintiff's prop-

erty) can be regarded as so ‘illegal’ as to permit a

suit for specific relief against the official as an indi-

vidual only if it is not within the official’s statutory

powers, or, if within those powers, only if the powers,

_ ox their exercise in the particular case, are constitu-

Herpes icine cae nea

' The Larson holding supra, above-quoted, is specifi-

cally reaffirmed by the United States Supreme Court in

Dugan and Malone, supra. Defendants additionally cite

Kenny v. Killian, (W.D. Mich. 1955), 133 F.Supp. 571,

which specifically notes that any immunity to be ap-

plicable, requires that those officials acting in their of-

ficial capacities in good faith (see quotation at page 5 in

defendants’ brief). Nor does Ford Motor Company v.

Treasury Department, 323 US. 459, 89 L.Ed 389, 65 S.Ct.

347 (1944) cited by defendants, control the facts of the

present case. There it was held that a suit against indi-

viduals constituting the Board of the Department of the

Treasury, was a suit against the state because “where a

suit is in essence one for the recovery of money from the

state, the state is the real party in interest.” Since the

47

present case is against these defendants, individually, and

would not be collectible against the State’of Ohio, Ford

Motor Company, supra, is inapplicable. Such has been

precisely held in Ohio in the case of Paramount Film Dis-

tributing Corp. v. Tracy, 176 N.E. 24 610 (1960).

The case of Dunn v. Estes, (D.C. Mass. 1953) 117 F.

Supp. 146, cited by defendants, does not apply to this case.

Plaintiff's allegations go far beyond the kind of “mistake

of fact” or “erroneous construction and application of the

law” of which Dunn, speaks, supra. Moreover, defendants

certainly have misapplied Maryland, et al. v. United

States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed. 205 (1965), which

has nothing whatsoever to do with the Civil Rights Act,

or, for that matter, with sovereign immunity. In. Mary-

land, supra plaintiff was contending that a National Guards-

man was acting as a federal employee; however, the court

held that he was acting as a state employee, thereby bar-

ring plaintiffs. claim for 1 under the Federal Tort

Claims Act. Clearly, the mere | t that a guardsman is

acting in some sense as a “state

of itself totally exempt that guardsman from lability un-

der U.S.C. Title 42, Section 1983.

Defendants have completely failed to cite, much less

distinguish, numerous authorities (including several of

the United States Supreme Court), pointedly refuting de-

fendants’ argument that this suit is in reality against the

ea ee: en ee ee

or any other immunity.

One of the leading decisions of the United States Su-

preme Court is Monroe v. Pape, 365 US. 167, 5 L.Ed. 492

(1960). In that important decision, the plaintiff alleged

a violation of his Fourteenth Amendment rights under the

Civil Rights Act by municipal police officers, who allegedly,

after arresting plaintiff failed to take him to a magistrate,

‘to allow him to call his family, to make any specific charges

‘against him, or to obtain a required search or arrest war-

rant. Defendants (13 individual police officers) contended

that since Illinois provided redress for this kind of alleged

misconduct, the Civil Rights Act did not apply. Mr. Jus-

tice Douglas, for the majority, specifically held that the

Civil Rights Act was a supplementary remedy to any avail-

able state remedies. As Mr. Justice Douglas stated at

page 498:

“The third aim was to provide a federal remedy where

the state remedy, though adequate in theory, was not

available in practice”. (emphasis added)

In Egan v. City of Aurora, 365 US. 514 (1960), the

United States Supreme Court specifically removed immu-

nity from liability under §1983 for City Commissioners,

council for the city, police chief, sheriff, Justice of the

‘Peace, state’s attorney, and others, for arresting the

Mayor of Aurora during a meeting which defendants al-

‘leged had possibilities of turning into a riot.

With respect to the argument of defendants that the

Eleventh Amendment bars this suit, defendants failed to

cite the landmark decision by the United States Supreme

Court, Ex Parte Young, 209 U.S. 123 (1908), a suit against

the Attorney General of Minnesota to enjoin enforcement

of an unconstitutional state statute. The Supreme Court

rejected the argument that the suit was in reality one by

a citizen against a state, thereby barred by the Eleventh

Amendment. The court specifically held that “the state

has no power to impart to him any immunity from re-

sponsibility to the supreme authority of the United States

. . . he is stripped of his official or representative char-

acter and is subjected in his person to the consequences

of his individual conduct.” Similarly, in the case of

Georgia Railroad & Banking Co. v. Redwine, State Reve-

— a

49

nue Commissioner, 342 U.S. 299 (1952), a citizen chal-

lenged the unconstitutionality of collecting taxes that im-

paired the obligation of contract. In refusing immunity

under the Eleventh Amendment, the United States Su-

preme Court held that “a suit to restrain unconstitutional

action threatened by an individual who is a state officer

is not a suit against the state”. Numerous authorities have

followed these critical Supreme Court decisions regarding

the Eleventh Amendment and state sovereign immunity

as a defense under the Civil Rights Act.

In Chapman v. California, 17 L.Ed. 2d 705 (1967),

the United States Supreme Court alluded to the essence

of its previously adopted positions in Ex Parte Young,

Georgia Railroad & Banking Co., Monroe, and Egan,

supra, in holding that the federal standard of harmless

error was applicable where federal constitutional rights

are at stake, at page 709:

“With faithfulness to the constitutional union of the

states, we cannot leave to the states the formulation

of the authoritative laws, rules and remedies designed

to protect people from infractions by states of fed-

erally guaranteed rights.”

See also, the case of Johnson v. Crumlish, 224 F.

Supp. 22 (D.C. Penn. 1963), where the court permitted suit

under §1983 against the District Attorney of Philadelphia,

Clerk of Quarter Sessions Court, and others, for having

imprisoned the plaintiff under an illegal bench warrant.

Other authorities have held that state immunity

should not apply in actions against public officials for vio-

lations of federally protected rights. See American Fed-

eration of State, County and Municipal Employees, AFL-

CIO v. Woodward, 406 F. 2d 137 (8th Cir. 1969); West-

berry v. Fisher, 309 F. Supp. 12 (S.D. Maine 1970); Birn-

baum v. Trussell, 347 F. 2d 86 (2d Cir. 1965); and Jobson

v. Henne, 355 F. 2d 129 (2d Cir. 1966). In. Birnbaum,

physician brought an action under §1963 against

of the City Department of Hospitals,

‘based on race; the Circuit Court pointed out

ng that the defendants acted within the

scope of their employment is not sufficient to defeat the

court’s jurisdiction. Ca eS Ee ae aE

follows:

Ah ani BNRY ‘the ‘while. depce'St thi Civil ‘Rights

Statutes to permit governmental officials to resort to

the doctrine of official immunity ... to the ' xtent

that state or municipal officers, such as the « 1d-

ants Trussell and Mangum violate or conspire to

violate constitutional and federal rights, the Civil

Rights Laws. . . . abrogate the doctrine of official

immunity”. (emphasis added).

In Jobson, supra, the Circuit Court héld as follows at page

133:

“To hold that all state officials in suits brought under

$1983 enjoy an immunity similar to that they might

enjoy in suits brought under state law would practi-

cally constitute a judicial repeal of the Civil Rights

Act ... the purpose of $1983, as well as the other

Civil Rights provisions, is to provide a federal rem-

edy for deprivation of federally guaranteed rights... .

to hold state officials immune from suit would very

greatly frustrate the salutary purpose of this pro-

vision”.

Jobson, supra, was a suit by an inmate of a mental insti-

tution against the officers and supervising psychiatrists at

that institution. The court went on to reason that “the

language and purpose of the Civil Rights Acts are incon-

sistent with the application of common law notions of of-

51

’ ficial immunity.” Since $1963 says that acts of persons

liable must be under color of law, “this test can.rarely be

. satisfied in the case of anyone other than'a state official”.

See also, the case of Law Students Civil Rights Re-

search Council, Inc. v. Wadmond, 299 F. Supp. 117 (SD.,

N.Y. 1969), where the court held at page 123:

| “We fail te perceive what interest would be served

by holding Federal Courts to be powerless to enjoin

state officers from acting under a statute that allegedly

‘deprives citizens of rights protected by the Civil Rights

Act or promulgating regulations that are elleged to

have that result simply because’ some of them are

robed and others have been appointed by those who

are”,

In Westberry, supra, the court reasoned as follows

at page 15:

“. .. Section 1983 is cast in terms so broad as to indicate

that governmental inumuniiy cum never ‘ben debits

in suits brought under that section”. (emphasis added)

Peterson v. Stanczak, 48 FRD. 400 (N.D., Il. ED.

1969), held that governmental immunity is not available

to policemen, sheriffs, coroners, and even in some situa-

tions, Judges.

In Beauregard v. Wingard, 230 F. Supp. 167 (S.D.

Cal. S.D. 1964), the court held at page 173, as follows:

. it is a familiar doctrine that such a statute [42

USC. $1983] may not be set at naught where its

benefits denied by State Statutes, State Common Law |

Rules or State Decisional Law”.

In James v. Ogilvie, 310 F. Supp. 661 (N.D., Ill. E.D.

1970), the court held at page 633, as follows:

52

“Nor are these defendants immune from suit. Defend-

ants suggest that in the absence of any allegations

that they were acting other than in their official ca-

pacity as state officials, they are immune from this

Civil Rights action. This argument has no merit. It

is precisely because defendants committed the alleged

conduct in their official capacities, that is, under color

of law, that they are subject to Civil Rights suits.

42 U.S.C. 1983.”

In Cohen v. Norris, 300 F. 2d 24 (9th Cir. 1962),

the court held at page 33:

“. . . BO logical rule of immunity unassociated with

a generally recognized common law immunity can

stand as a defense in a Civil Rights Act case”.

See also, Smith v. Cremins, 308 F. 2d 188 (1962),

another 9th Circuit decision following Cohen, supra.

Perhaps it would do well to call upon the older author-

ity of the United States Supreme Court in Ex Parte Vir-

ginia, 100 U.S. 339 (1897), a decision rendered by the

United States Supreme Court after the passage of the

Civil Rights Act. In that case, the United States Supreme

Court held that a Judge could be criminally prosecuted

under provisions of a Federal Statute, making it a crime

for “any officer or other person, charged with any duty

in the selection or summoning of jurors” to disqualify

grand or petit jurors “on account of race, color, or previous

condition of servitude.” 18 Stat. part 3,336. As to the

claim by this Judge of judicial immunity, the United States

Supreme Court held at pages 348-349, over 70 years ago,

in language which bears directly upon the exercise of

official power, as follows:

“Whether the act done by him was judicial or not is

to be determined by its character, and not by the

character of the agent. Whether he was a county

judge or not is of no importance.

“The duty of selecting jurors might as well have

been committed to a private person as to one holding

the office of a judge. It often is given to county

commissioners, or supervisors, or assessors. In

former times, the selection was made by the sheriff.

In such cases, it surely is not a judicial act, in any

such sense as is contended for here. It is merely

a ministerial act, as much so as the act of a sheriff

holding an execution, in determining upon what piece

of property he will make a levy or the act of a road-

master in selecting laborers to work upon the roads.

That the jurors are selected for a court makes no

difference. So are court-criers, tipstaves, sheriffs, etc.

“Is their election or appointment a judicial act?

“But if the selection of jurors could be considered

in any case a judicial act, cam the act charged against

the petitioner be considered such when he acted out-

side of his authority and in direct violation of the

spirit of the state statute? That statute gave him no

authority, when selecting jurors, from whom a panel

might be drawn for a circuit court to exclude all col-

ored men merely because they were colored. Such

an exclusion was not left within the limits of his

direction. . .” (at pp. 348-9) (emphasis added)

Many cases exist in which it has been held that state |

officials were properly sued under $1983. E.G., Kerr v.

City of Chicago, 424 F.2d 1134 (7th Cir. 1970) (police

officers); Hershel v. Dyra, 365 F.2d 17 (7th Cir.), cert.

denied, 385 U.S. 973 (1966) (policeman-First Amendment

claim); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969) (sher-

iff-false imprisonment); Joseph v. Rowlen, 402 F.2d 367

(7th Cir. 1968) (police officer-false arrest); Wright v. Mc-

‘

A

{

‘

\

54

Mann, 387 F.2d 519 (2d Cir. 1967) (Warden of State

Prison); Sostre v. Rockerfeller, 312 F. Supp. 863 (S.D.N.Y.

1970) (Warden and State Commissioner of Corrections) ;

Mansell v. Saunders, 372 F.2d 573 (5th Cir. 1967) (county

officials); Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964)

(Mayor); Harkness v. Sweeney Ind. School Dist., 427 F.2d

319 (5th Cir. 1970) (trustees and superintendent of school

district); Delatte v. Genovese, 273 F. Supp. 654 (E.D. La.

1967) (state coroner).

Ohio authorities understandably follow the basic trend

of the United States Supreme Court in this area.

In this circuit, in the case of Bargainer v. Michal,

233 F. Supp. 270 (1964), plaintiff had stated a cause of

action against defendants who moved to dismiss the com-

plaint for failure to state a claim under the Civil Rights

Act. Plaintiff alleged that defendant police officers phys-

ically abused plaintiff, and thereafter conspired to deprive

plaintiff of his constitutional rights. In Bargainer, supra,

the court specifically held that with respect to the activ-

ities of the officers, the Motion to Dismiss had to be denied

inasmuch as the complaint did state a cause of action

under $1983.

However, the court noted that the conspiracy allega-

tions failed for lack of any allegation of a specific intent:

to discriminate on the part of the defendants. However,

the conspiracy alleged in the instant case now before this

court clearly sets forth that specific intent.

In Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio

E.D. 1967), plaintiffs in a class action for declaratory relief

under $1983, withstood a claim of official immunity raised

by defendant Governor Rhodes in a suit to prevent the

State of Ohio from entering into discriminatory contracts,

stating that §1983 “is intended to allow redress against

official representatives of the state who abuse their posi-

55

tions. It was enacted as a means for reinforcing the pro-

visions of the Fourteenth Amendment against those who

act as officials of the state, whether they act in accordance

with their authority or misuse it”.

Similarly, in Steine v. Atkinson, 690 O.App. 529, 44

N.E.2d 732, (1942), the plaintiff was a Civil Service em-

ployee, who alleged he was dismissed from office by the

defendants because he was a Democrat. The defendants

claimed official immunity but the court rejected this de-

fense in holding as follows:

“Those acts dealt with matters which they were by

law required to perform. It is true a public officer

may be held liable in damages for torts wholly in-

Se ee ae eee

may also be personally charged with liability for

wrongs perpetrated by him in and by virtue of his

office.”

‘ The court held further in supporting its position, that

an official can be amenable to suit when acting in his of-

ficial capacity, by relying upon former Section 11271, Gen-

eral Code, (now O.R.C. Section 2307.35).

See also, the case of New American Library of World

Literature v. Allen, 114 F.Supp. 823 (N.D. Ohio E.D. 1953).

The plaintiff there brought an action for an injunction

and for damages against the Chief of Police for unlawful

suppression of certain of plaintiff's books. he court stated

as follows:

“Where public officers exceed their lawful powers, they

no longer act as duly authorized agents of government.

In such cases they act with no greater legal authority

than private persons.”

See also, Leech v. Cook, 48 O.App. 205, 10 Ops. 172,

192 N.E. 797 (1934).

ere erence neem een

«66

Defendants seem to rely heavily upon Corbean v.

Xenia City Board of Education, 366 F.2d 480 (C.A. Ohio

1966), cert. den. 385 U.S. 1014, 87 S.Ct. 776, 17 L.Ed. 2d 685.

Corbean, supra, was a personal injury action brought by

the plaintiff against the School Board of Education for neg-

ligence. It is clearly distinguishable from the present

case in that the suit seeks to impose liability upon a state

agency, rather than against individuals, and in that §1983

is not the basis of jurisdiction. Moreover, the allegations

would appear to involve only simple negligence and

clearly the allegations in the present case go well beyond

that.

It would, therefore, seem upon thorough review of the

authorities, that defendants may not claim any immunity,

either under the Eleventh Amendment or pursuant to any

fair interpretation of case law. Certainly, sovereign im-

munity is not at issue here, and to assert it in this case as

an immunity, is totally inconsistent with the fundamental

purpose of the Civil Rights Act, both Title 42, Section

1983 and Title 42, Section 1985(3), which is also a juris-

dictional basis for this action insofar as conspiracy is in-

volved, the court not being bound by any title in the cap-

tion.

THERE ARE NO ADDITIONAL CONSIDERATIONS

WHICH IMMUNIZE DEFENDANT JAMES RHODES

FROM AMENABILITY TO SUIT

In addition to the various contentions raised on be-

half of defendants Del Corso and Canterbury, which equally

apply to defendant Rhodes, defendant Rhodes raises addi-

tional contentions which will be briefly dealt with at this

point.

57

Defendant Rhodes contends and, indeed, provides a

copy of his “Proclamations” indicating that his. conduct

in connection with the incident of May 4 was pursuant

to powers vested in him by the Constitution and Statutes

of the State of Ohio. It should be patently evident from

the cases cited already, that the mere fact that defend-

ant Rhodes was ostensibly acting in an official capacity

‘when he intentionally violated the rights of plaintiff,

creates no immunity under the Civil Rights Act. Nor do

the “Proclamations” which are attached as exhibits in

any way create an automatic immunity for the Governor

when it is alleged in the Amended Complaint that his

actions, individually and in conspiracy, were designed

and intended to specifically violate the rights of plaintiff,

‘and where it is further alleged that all of his actions were

‘taken with the full knowledge of the imminent conse-

quences which eventually took place. It is inconceivable

that the Civil Rights Act would not apply to such alleged

abuse of power, particularly where one of the require-

ments under the Civil Rights Act is that action taken by

the state official be “under color of state law.” What de-

fendant Rhodes has demonstrated is that he acted, in-

deed, “under color of state law”. He does not demon-

strate that he is immune either by virtue of some official —

immunity inherent.in the Civil Rights Act or by virtue

of any implied sovereign immunity.

It is suggested by defendant Rhodes that there is no

allegation of failure on his part to act in good faith.

Surely, the allegations give rise to such a clear inference,

and if this is defendant Rhodes’ only objection, plaintiff

is certainly prepared to add these specific words to his

allegations, as it would be fully consistent with every-

thing alleged in the Amended Complaint.

See, for example, Parine v. Levine, 274 F. Supp. 268

(E.D. Mich. S.D. 1967), where the court held that mere

allegations of an intentional: violation of another’s Civil

Rights made it unnecessary to consider the defense of

“good faith”.

In Service Employees International Union v. City of

Butler, Pa., 306 F. Supp. 1080 (W.D. Penna. 1969), the

court found that the concept of “good faith” can only be

arrived at by a factual determination.

For the reasons indicated, defendant Rhodes is simi-

larly subject to suit, along with the other two defendants.

THE DOCTRINE OF STATE SOVEREIGN IMMUNITY

VIOLATES THE FOURTEENTH AMENDMENT TO

THE FEDERAL CONSTITUTION

Notwithstanding plaintiff's contention that sovereign

immunity is completely inapplicable in this case, plaintiff

also advances the position that state sovereign immunity

should be considered and held constitutionally void. As a

matter of Equal Protection, what rational basis can there

be for imposing a discrimination with respect to the right

of recovery between that class of persons who happen

to be injured or killed by “official misconduct as dis-

tinguished from that class of persons who happen to be

killed by “unofficial” misconduct. Such a discriminatory

doctrine is invidious, arbitrary and capricious, wholly a

creature of historical anomaly. Sovereign immunity, long

ago abandoned in England, the ceuntry of its inception,

is today in retreat in this country, and State Supreme

Courts have forthrightly recognized the gross injustices it

perpetuates and have, therefore, struck it down as invalid.

_ Justice Traynor in the leading national decision of

Muskopf v. Corning Hospital District, 55 C. 2d 211, 11

59

Cal. Rptr. 89, 359 P. 2d 457 (1961), wrote at page 216

and page 221, as follows:

“If the reason for Russell v. Men of Devon and the

rule of county or local district immunity ever had

any substance they have none today. Public conve-

nience does not outweigh individual compensation . . .

“The rule of governmental immunity for tort is

an anachronism, without rational basis, and has existed

only by the force of inertia. . .

“None of the reasons for its continuance can with-

stand analysis. No one defends total governmental

immunity. In fact, it does not exist. It has become

riddled with exceptions, both legislative . . . and judi-

cial .. . and the exceptions operate so illogically as

to cause serious inequality. ..” (at page 217)

“Only the vestigial remains of such governmental

immunity has survived; its requiem has long been

foreshadowed. For years the process of erosion of

governmental immunity has gone on unabated. The

Legislature has contributed mightily to that erosion.

The courts, by distinction and extension, have re-

moved much of the force of the rule. Thus, in hold-

ing that the doctrine of governmental immunity for

torts for which its agents are liable has no place in

our law we make no startling break with the past

but merely take the final step that carries to its con-

clusion an established legislative and judicial trend.”

(Emphasis added)

Therefore, not only is sovereign immunity inapplicable

in this case, but the doctrine is in and of itself uncon-

stitutional, as a matter of Equal Protection and as a matter

of Due Process of Law.

|

}

}

|

|

60

PLAINTIFF'S ALLEGATIONS SUFFICIENTLY SET

FORTH THE STATE OF MIND REQUIRED OF DE-

FENDANTS BY THE CIVIL RIGHTS ACT

The Amended Complaint specifically charges all of

the defendants with knowingly sending untrained troops

with loaded weapons onto a college campus without any

cause whatsoever, with the knowledge that there would

be an imminent risk of injury and death to unarmed stu-

dents, that these actions were done by all defendants,

individually and in conspiracy, in complete and utter indif-

ference and disregard for the lives of unarmed students,

and that these acts were done with the specific intent

of depriving plaintiff and plaintiff’s decedent of their civil

rights. In addition, the Amended Complaint further al-

leges that defendant Robert Canterbury intentionally and

wilfully failed to take any action whatsoever under the

circumstances, he being present with the troops on

the campus at all times, and that his failure to prevent

his troops from so conducting themselves was in wanton,

reckless and callous disregard and indifference for the

lives of unarmed civilians. The issue is whether or not

these allegations su‘ficiently describe the state of mind

required for liability under the Civil Rights Act.

It is specifically noted in Bargainer, supra, that there

must be an intent to deprive plaintiff of a federal right.

eS ee

fendants.

Nevertheless, a number of courts have held that an

intent is not actually required. In Monroe, supra, the

language of the United States Supreme Court is instruc-

tive:

“It is abundantly clear that one reason the Legislation

was passed was to afford a federal right in Federal

61

Court caused by reason of prejudice, passion, me-

glect, intolerance or otherwise, state laws might

not be enforced. . . and the immunities guaranteed

by the Fourteenth Amendment might be denied by

state agencies.” (Emphasis added)

In Daniels v. Van de Venter, (C.A. Cols. 1967), 382

F.2d 29, the court quoted from Monroe, supra, stating

that “intent is not a necessary element to be shown, but

as in any tort action a defendant in an action under $1983

of the Civil Rights Act is responsible for the natural conse-

quences of his act”.

Similarly, in Hardwick v. Hurley, (7th Cir. 1961),

289 F.2d 529, the court held that the allegation of purpose

with which an unconstitutional act is perpetrated is not

a prerequisite to a suit under $1983. In accord are Nelson

v. Knox, (6th Cir. 1958) 256 F.2d 312; Cohen v. Norris,

supra; and Joseph v. Prowlen, (7th Cir. 1968) 402 F.2d

367.

In Jenkins v. Averette, 4th Cir., April 20, 1970, 38

L.W. 2607, the court upheld a right to recovery under

the Civil Rights Act against a police officer in a shooting

incident upon a showing by plaintiff of gross or culpable

negligence. The Court reasoned “that if intent is required,

it may be supplied for federal purposes by gross and

culpable negligence just as it was supplied in the Common

Law cause of action”.

In Striker v. Pancher, (6th Cir. 1963), 317 F.2d 780,

the court held that §1983 is aimed at “reprehensible action

on the part of the defendant”. See also Brown v. U.S.,

204 F.2d 247 (1953).

It would seem, therefore, that the allegations in the

Amended Complaint meet the required state of mind un-

der the Civil Rights Act; certainly these allegations give

62

rise to a fair inference of bad faith, but in the event

that defendants are making the highly technical claim

that “bad faith” has not been literally alleged, or if this

court should have any question concerning the existence

of an inference of “bad faith” either with respect to motive

or intent, plaintiff is prepared to cure this concern with

a specific allegation to that effect.

THE STATE OF OHIO SPECIFICALLY ALLOWS A

CAUSE OF ACTION UNDER STATE LAW AGAINST

A MILITIAMAN FOR WANTON MISCONDUCT

O.R.C. Section 5923.37 reads as follows:

“When a member of the organized militia is ordered

to duty by state authority during a time of public

danger, he is not answerable in a civil suit for any

act performed within the scope of his military duties

at the scene of any disorder within said designated

area unless the act is one of willful or wanton mis-

conduct.” (Emphasis added)

Defendants have seemed to overlook in their Brief

the unmistakable meaning of this Section. This Section

does not provide for any immunity, once it is shown that

there is wilful or wanton misconduct on the part of a mem-

ber of the organized militia.

All three defendants are members of the organized

militia. There can be no question that defendants Can-

terbury and Del Corso were ordered to duty by state au-

thority, namely the Governor, and that they were mem-

bers of the organized militia. As for defendant Rhodes,

it would seem that he is both a civilian exercising power

over the State Militia, as well as a member of the militia

by virtue of his status as Commander-in-Chief.

Moreover, the acts alleged by plaintiff concerning all

Cen Cn

military duty.

In addition, defendant Canterbury was himself at

the scene of the alleged disorder at Kent State, within the

meaning of the Statute, and both defendant Rhodes and

defendant Del Corso were at various times prior to the

incident and at certain times alleged in the Amended

Complaint on the scene, giving orders, taking actions, and

making decisions, all of which resulted in the death in

question.

It should be noted with respect to any actions alleged

in the Amended Complaint which were not performed by

any of the defendants “within the scope of their military

duties” or “at the scene of any disorder within any desig-

nated area” that wanton misconduct would not be the ap-

plicable standard and the proper standard would be com-

mon law negligence. In other words, the wanton miscon-

duct provision of O.R.C. $5923.37 is in reality a remedy

for a specific circumstance and in the absence of that cir-

cumstance, the usual standard of negligence should apply.

While it would seem clear that the allegations in the

Amended Complaint demonstrate wanton misconduct at

the least, however, plaintiff will, nevertheless, review the

authorities relevant to wanton misconduct.

In Universal Concrete Pipe Co. v. Bassett, 130 O.S.

567, 200 N.E. 843 (1936), the court defined wanton mis-

conduct as follows:

“Although actions for willful or wanton conduct have

often been treated under the head of negligence ac-

tions, an action based upon willful or wanton miscon-

duct is apart from the action for negligent conduct. The

difference is one of kind, not merely degree . . . wanton

64

misconduct is such conduct as manifests a disposition

to perversity and it must be under such surrounding

circumstances and existing conditions that the party

doing the act or failing to act must be conscious of such

surrounding circumstances and existing conditions that

his conduct will in all common probability result in

injury”.

In Tighe v. Diamond, 149 O.S. 520, A.D. N.E. 2d 122,

(1948), the court defined wanton misconduct as compre-

hending “an entire absence of all care of the safety of

others and indifference to consequence.”

In Zalewski.v. Yancy, 101 O.App. 501, 140 N.E. 2d 592

(1956), the court held that a probability of injury known

to the defendant would meet the test of wanton miscon-

duct under the Guest Statute.

In Kellerman v. J.S. Durig Co., 176 O.S. 320, 199 N.E.

2d 562 (1964), the Ohio Supreme Court carefully defined

wanton misconduct as follows:

“Wanton misconduct charged against a defendant im-

plies a disposition to perversity and a failure to ex-

ercise any care toward those to whom a duty of care

was owing when the probability that harm would re-

sult from such failure was great and such probability

was actually known, or in the circumstances ought to

have been known to the defendant”. (Emphasis added)

See also the case of Gossett v. Jackson, 100 O. App.

2d 121, 226 N.E. 2d 142 (1965); Reserve Trucking Co. v.

Fairchild, 128 O.S. 519, 191 N.E. 745 (1934); White v.

Harvey, 170 O.S. 262, 163 N.E. 2d 898 (1960); Botto v.

Fischesser, 174 O.S. 322, 189 N.E. 2d 127 (1963); Roszman

v. Sammet, 20 O. App. 2d 255, 254 N.E. 2d 51 (1969).

65

Defendants cite O.R.C. Section 2923.55 as a basis for

claiming immunity to defendants Del Corso and Canter-

bury. This Section has no applicability whatsoever to this

case because it involves criminal liability rather than civil

liability in the first place, and in the second place, it as- _

sumes a fact not fairly raised in the pleadings—namely,

that defendants were “engaged in suppressing a riot or

in dispersing or apprehending rioters.” This would seem

to be a question of fact for a jury to decide, based upon

proper instructions as to the legal definition of a “riot”

or “rioters”. Also, the Amended Complaint does not

fairly raise an inference that “any order to desist and

disperse had been issued.”

_ Finally, in an effort to avoid the application of

aforementioned O.R.C. Section 5923.37, defendants are

contending that the Second Cause of Action does not in-

corporate by reference the allegations of the First Cause

of Action. This is a technical objection, even if at all

valid, and should not lead this court to grant the Motion

to Dismiss without allowing leave to make this minor

amendment. However, it is, in fact, not true that plain-

tiff is unable to assert inconsistent allegations within the

same cause of action.

With respect to Rule 8(e) (2), F.RCP., it is stated

as follows in Wright and Miller, “FeperaL Practice AND

Procepure”, Civil, at pages 371-373 of Section 1283:

“Under Rule 8(e) (2), a party is permitted to set forth

inconsistent statements either alternatively or hypo-

thetically within a single count or defense or in separ-

ate claims or defenses. . . he also may set forth incon-

sistent legal theories in his pleading and will not be

forced to select a single theory on which to seek re-

covery.

ai a,

(

The court in Michael v. Clark Equipment Co., 380 F.

2d 351, 2d Cir. 19, held at page 352:

“The plaintiff is at liberty to refuse to be pinned down

to a single theory of fraud, and inconsistency is not a

tenable objection to a pleading . . .” Federal Rules of

Procedure 8(3) (2).

Similarly, the court held at page 178 in Breeding v.

Massey, 378 F. 2d 171 (8th Cir. 1967) as follows:

“The right of a plaintiff to try his case on alternative

theories has uniformly been upheld in the Federal

Court, and plaintiff cannot be required to elect upon

which theory to proceed.”

If defendants’ only objection is that plaintiff has not

supplied separate causes of action—one cause of action

for wanton misconduct and another cause of action for neg-

ligence—then plaintiff is perfectly willing to make such

separate claims in separate causes of action to remedy any

such formal objection which defendants are apparently

making.

CONCLUSION

The legal authorities cannot convey the depth of this

tragedy, nor can they convey the imperative practical nec-

essity of an open forum in Federal Court in this case.

Though in a sense all cases are important to the litigant,

it is suggested that the absence of a forum in this case

would be a most unfortunate thing. It is plaintiff's posi-

tion that the law applicable in this case clearly provides

the avenue for redress, and for all of the reasons set forth

in this Memorandum of Law, plaintiff moves that this

»

a ee

67

court overrule in all respects defendants’ Motion to Dis-

Respectfully submitted,

/s/ Steven A. SINDELL, of Counsel

~S SINDELL, SINDELL, Bourne, Markus,

Srmrn & SprRo

1400 Leader Building

Cleveland, Ohio 44114—781-8700

; Attorneys for Plaintiff

(Certificate of service omitted in printing)

4

ANSWERS TO INTERROGATORIES IN

KRAUSE CASE

(Filed May 7, 1971)

Civil Action C70-544

IN THE UNITED STATES DISTRICT COURT

For THE NorTuern District or On10

Eastern Division

(Title omitted in printing)

Now come the defendants and specially appear in the

above captioned proceeding for the sole purpose of sub-

mitting answers to the plaintiff's interrogatories. Defend-

ants’ motions to dismiss are presently pending before the

Court; this special appearance by defendants is in no way

to be construed as a waiver of defendants’ immunity from

suit as set forth in their motions to dismiss.

68

ANSWERS TO INTERROGATORIES BY

SYLVESTER DEL CORSO AND ROBERT CANTERBURY

1. State the name, address, unit and rank of each

and every member of the Ohio National Guard who was

situated in the immediate area in which guns were fired

at the time of the shooting described in the Amended Com-

plaint filed in this action.

ANSWER: Refer to Exhibit 1 attached hereto.

2. State the name, addréss, unit and rank of each

and every member of the Ohio National Guard who fired

a gun of any kind at the time and place of the shooting in-

cident described in the Amended Complaint filed in this

action.

ANSWER: Defendants refuse to answer Interroga-

tory No. 2 based upon their privilege against possible

self-incrimination, United States Constitution, Amend-

ment Five.

3. If for any reason you are unable to fully answer

either Interrogatory Number One or Number Two state

with specifity all of the reasons why you are unable to

fully answer.

ANSWER: Refer to the answer to Interrogatory

No. 2.

4. If for any reason you are unable to fully answer

either Interrogatory Number One or Number Two, state

whether or not there are any records, reports, documents,

notes, transcriptions, writings, films or recordings of any

kind known to you containing the answer to Interroga-

tories Numbers One and Two.

ANSWER: Defendants refuse to answer Interro-

gatory No. 4 based upon their privilege against pos-

69

sible self-incrimination, United States Constitution,

Amendment Five.

;, 5...If our answer to Interrogatory Number Three

is in the affirmative, specify the precise nature of each

and every record, report, document, note, transcription,

writing, film or recording of any kind and specify the name

and address of its present custodian.

ANSWER: Not applicable.

6. Are you aware of any recordings, photographs,

reports, statements, transcriptions, notes, documents, films

or other writings or tangible items of any kind in any way

related or relevant to any of the matters set forth in the

Amended Complaint?

ANSWER: Defendants refuse to answer Interroga-

tory No. 6 based upon their privilege against possible

self-incrimination, United States Constitution, Amend-

ment Five.

7. If your answer to Interrogatory Number Six is in

the affirmative, then for each such record, photograph,

report, statement, transcription, note, document, film or

other writing, or tangible item of any kind state the fol-

lowing:

A. Its precise contents or nature;

B The name and address of its present custodian;

C. Whether you will make such item or writing

available to plaintiff or to plaintiff’s attorney

without the necessity of a Motion to produce.

ANSWER: Not applicable.

8. Were any members of the Ohio National Guard

injured in any way immediately prior to or during the fir-

70

ing of weapons at the time of the shooting described in

the Amended Complaint filed in this action?

ANSWER: Yes.

9. If your answer to Interrogatory No. 8 is in the af-

firmative, state the name, address, unit and rank of each

member of the Ohio National Guard who was injured.

ANSWER: Refer to Exhibit #2.

10. For each person mentioned in your answer to

Interrogatory Number Nine, state the following:

A. The cause of injury;

ANSWER: As stated in Exhibit #2.

B. The name and address or other identification of

the person or persons, if any, causing the injury;

ANSWER: Rioters on the Kent State University

campus, May 4, 1970. ;

C. The approximate time the injury was sustained:

ANSWER: Immediately before the incident described :

in the Amended Complaint.

D. The location of the person injured at the time such

injury was sustained;

ANSWER: To the best of our knowledge, on Blanket

Hill, near the Pagoda, on the Kent State University

campus.

E. The specific nature of the injury;

ANSWER: As stated in Exhibit #2.

F. The nature of treatment, if any, rendered for the

| injury;

ANSWER: Unknown to defendants at this time.

71

G. The medical facility, if any, where the treatment

was rendered;

ANSWER: To the best of our knowledge, treatment

was given to those injured at the Kent State Univer-

sity Medical Center.

H. The name and address of all persons who ren-

dered any treatment whatsoever in connection

with the injury;

ANSWER: To the best of our knowledge, treatment

was rendered by Gary P. Dackor, 2 Lt. MC OARNG,

Medical Platoon Leader.

I. The dates on which treatment was rendered;

ANSWER: To the best of our knowledge, May 4,

1970.

J. The name and address of each and every person

who witnessed either the occurrence of the in-

jury or the presence of the injury; and

ANSWER: Unknown to the defendants at this time

other than stated above.

K. The name and present address of the present cus-

todian of any photographs evidencing such in-

jury.

ANSWER: Unknown to the defendants at this time.

11. Do you claim that anyone other than a member

of the Ohio National Guard fired a gun of any kind imme-

diately prior to or at the time of the shooting incident de-

scribed in the Amended Complaint filed in this action?

ANSWER: Yes.

12. If your answer to Interrogatory Number Eleven

is in the affirmative, then state with specificity and in

detail the factual basis for any and all reasons for such

72

claim, including the names and addresses of any and all

persons who have any knowledge supporting such claim.

ANSWER: General Canterbury heard non-military

weapons discharged. Others reporting non-military

firing were:

Michael Curtis Anderson, 3648 North Drive, Green-

ville, Ohio

John A. Bambeck, 991 Medina Road, Medina, Ohio

John D. McDermott, 521 Brown Street, Akron, Ohio

Clarence Harris, 620 Hudson Avenue, Akron, Ohio

Edward C. Meyer, 4751 East Hayes, Ravenna, Ohio

Joseph F. Bertholdi, c/o Kent State University Police

Force, Kent, Ohio

Lowell Powers, 25042 Mahoning Road, Deerfield, Ohio

Warren Dale Miller, address unknown

13. If your answer to Interrogatory Number Eleven

is other than in the affirmative or negative, then specify

with particularity why you are unable to answer in either

the affirmative or negative.

ANSWER: Not applicable.

14. Do you claim that plaintiff's decedent, Allison

Krause, in any manner caused any injury whatsoever to

any member of the Ohio National Guard who fired a

weapon immediately prior to or at the time of the shooting

described in the Amended Complaint?

ANSWER: Yes.

15. If your answer to Interrogatory Number Four-

teen is in the affirmative, then state with specificity and

in detail the factual basis for any and all reasons for such

claim, including the names and address of any and all per-

sons who have any knowledge supporting such claim.

73

ANSWER: Allison Krause was unknown to the de-

fendants so that it is unknown whether she was

one of those rioters who caused injury to members of

the National Guard immediately prior to the incident

described in the Amended Complaint.

16. If your answer to Interrogatory Number Four-

teen is other than in the affirmative or negative, then spec-

ify with particularily why you are unable to answer in

either the affirmative or negative.

ANSWER: Refer to Answer to Interrogatory #15.

17. Do you claim that plaintiff's decedent, Allison

Krause, in any manner caused any member of the Ohio

National Guard who fired a weapon immediately prior to

or at the time of the shooting described in the Amended

_ Complaint to fear serious injury or that his life was in

danger?

ANSWER: Although Allison Krause was unknown

to the defendants immediately prior to the incident

described in the Amended Complaint, it is known that

she was among the crowd menacing, threatening, and

assaulting the National Guard and causing them ac-

tual injury and grave concern for their lives.

18. If your answer to Interrogatory Number Seven-

teen is in the affirmative, then state with specificity and

in detail the factual basis for any and all reasons for such

belief, including the names and addresses of any and all

persons who have any knowledge supporting such claim.

ANSWER: Defendants refuse to answer Interroga-

tory No. 18 in its entirety based upon their privilege

against possible self-incrimination, United States Con-

stitution, Amendment Five. Defendants Del Corso

and Canterbury base part of their knowledge on pho-

tographs they observed at the President’s. Commission

a al

~

74

hearing relative to Kent State. These photographs

showed Allison Krause with the rioters.

19. If your answer to Interrogatory Number Seven-

teen is other than in the affirmative or negative, then spec-

ify with particularity why you are unable to answer in

either the affirmative or negative.

ANSWER: Not applicable.

20. State the name, address, unit and rank of the of-

ficer or officers in command of the members of the Ohio

National Guard who fired their weapons at the time and

place of the shooting incident described in the Amended

Complaint.

ANSWER: Defendants refuse to answer Interroga-

tory No. 20 based upon their privilege against possible

self-incrimination, United States Code, Amendment

Five.

21. State the precise location of defendant Robert

Canterbury at the time of the shooting described in the

Amended Complaint.

ANSWER: General Canterbury was with the troops

on “Blanket Hill” near the Pagoda.

22. Describe the clothing defendant Robert Canter-

bury was wearing at the time of the shooting described in

the Amended Complaint.

ANSWER: Brown business suit with gas mask. ;

23. Was there any member of the Ohio National Guard

on the Kent State University campus at the time of the ;

shooting described in the Amended Complaint of higher

rank than defendant Robert Canterbury?

ANSWER: no.

NAA

Ry A NRE aN ae Ra En de Sete

75

24. State the name, address, unit and rank of each

and every member of the Ohio National Guard who was

situated anywhere on the campus of Kent State University

at any time on May 4, 1970, prior to and during the shoot-

ing incident described in the Amended Complaint.

ANSWER: Refer to Exhibit 1 attached hereto.

25. For.each member of the Ohio National Guard

mentioned in your answer to Interrogatory Number Twen-

ty-Four, state:

A. The date upon which such member was most re-

B.

C.

cently called into active duty prior to May 4, 1970.

The person or persons most recently ordering such

member into active duty;

The reason for ordering such member into active

duty;

The specific services rendered by each such mem-

ber from the time such member was first called

into active duty up to and including the time of

the shooting incident described in the Amended

Complaint;

The specific equipment, including weaponry of any

kind which was possessed, used, or controlled by

each such member including tear gas, guns, ve-

hicles, knives, etc.;

The complete training history, including times,

places, and the names and addresses of training

instructors of such member;

The specific name, title and publisher of any and

all materials, books, articles, guides, visual aids,

instructions, or other tangible or written items of

any kind assigned, used, or possessed, read by or

76

available to each such member in any way con-

nected with his training or service with the Ohio

National Guard.

ANSWER: The information contained in Exhibit 3

attached hereto is the only knowledge we presently

chave pertinent to Interrogatory No. 25 with the follow-

ing additions:

(1) All men listed in Exhibit 3 had previously un-

dergone basic training and advanced training;

(2) Concerning “G”, we are not presently aware of

all the items named therein, however, there are the

“Guidelines for Small Unit Commanders” and the

Army field manual on civil disorders.

26. Describe the specific nature and kind of weapon

which was fired by each member of the Ohio National

Guard who fired a weapon of any kind at the time and

place of the shooting incident described in the Amended

Complaint, specifying with particularity the name and

address of the guardsman firing the weapon and the type

of bullet which was fired from that weapon.

ANSWER: Defendants refuse to answer Interroga-

tory No. 26 based upon their privilege against possible

self-incrimination, United States Constitution, Amend-

ment Five.

27. Prior to May 4, 1970, did defendant Governor

James Rhodes issue or promulgate any proclamation other

than the Proclamation of April 29, 1970, attached as Ex-

hibit 3 to Defendant’s Motion to Dismiss?

ANSWER: Governor Rhodes promulgated two Proc-

lamations relevant to the issues defined in the Amended

Complaint. The first was issued April 29, 1970, and

the second was a supplemental proclamation issued

77

May 5, 1970, formalizing the Governor’s verbal orders

to General Del Corso “to maintain peace and order

and to protect life and property throughout the State

of Ohio.”

28. If your answer to Interrogatory Number Twenty-

Seven is in the affirmative, describe with specificity each

and every such proclamation stating its time, date, place

and persons to whom issued or promulgated.

ANSWER: The supplemental proclamation which is

also attached to defendant’s Motion To Dismiss, Ex-

hibit #3 was executed May 5, 1970, at Columbus, Ohio.

29. For each such aforementioned proclamation in

your answer to Interrogatory Number Twenty-Eight, state

the name and present address of the present custodian of

same.

ANSWER: To the best of our Knowledge, Ted W.

Brown, Secretary of State for the State of Ohio, has

possession and custody of this proclamation.

30. State the name and address of each and every

person who in any manner requested or ordered the pres-

ence of the Ohio National Guard on the Kent State Uni-

versity campus on May 4, 1970.

ANSWER: The number of persons requesting and/or

ordering the assistance of the National Guard are too

numerous to name here; such a list would include

many of the citizens of Kent, Ohio. Most prominent

among these persons would be:

(1) Governor Rhodes, Executive Proclamations of

April 29 and May 5, 1970, Columbus, Ohio.

(2) Mayor LeRoy M. Satrom, Communication to the

Commander of Troops of the Ohio National Guard,

May 2, 1970.

— a

78

(3) Portage County Sheriff Joseph Hegedus, Com-

munication to the Commander of Troops of the Ohio

National Guard, May 3, 1970.

31. For each such person mentioned in your answer

to Interrogatory Number Thirty, state the date, time and

place when such order or request was made, and the per-

son or persons to whom and/or in the presence of whom

such request or order was made.

ANSWER: Refer to answer to Interrogatory No. 30.

32. For each such person mentioned in your answer :

to Interrogatory Number Thirty, state fully the reasons,

if any, given by that person for his or her request to order.

ANSWER: Governor Rhodes, as stated in his Execu-

tive Proclamation of May 5, 1970, ordered the National

Guard to Kent State University to meet disorders or

threatened disorders and to maintain peace and order i

in the city of Kent and on the campus of Kent State

University is Portage County. i

May Satrom ordered the National Guard to Kent, Ohio, i

because local law enforcement agencies could no longer ;

cope with the situation in Kent May 2, 1970, and troops

were needed to restore order and peace to the com-

munity.

Sheriff Hegedus requested the National Guard to help

protect the persons and property of Kent, Ohio, since

local enforcement agencies could no longer adequately

protect persons and property in Kent, Ohio nor restore

peace and order to this community. 2

33. Of your own personal knowledge, what were all

of the reasons, if any, for the presence of Ohio National

Guard troops on the Kent State University campus on :

79

May 4, 1970, prior to and including the time of the shooting

incident described in the Amended Complaint.

ANSWER: The Ohio National Guard was requested

by various authorities to maintain the peace and order

and to protect life and property in Kent, Ohio.

34. At any time or times on the Kent State University

campus on May 4, 1970, prior to the shooting incident

described in the Amended Complaint, did Ohio National

Guard troops attempt to disperse any gathering or as-

semblage of students or other civilians (hereinafter to be

referred to as a “gathering’’).

ANSWER: Yes.

35. If your answer to Interrogatory Number Third-

Four is in the affirmative, state the name and address of

each and every person (giving where applicable, unit and

rank) who in any way ordered the dispersal of such “gath-

ering” or “gatherings”.

ANSWER: Immediately before the incident described

in the Amended Complaint, General Canterbury di-

rected a member of the Kent State University Police

Department to order the rioters to disperse. Patrol-

man Harold A. Rice took a bullhorn and, while being

driven by a National Guardsman in a jeep, passed

many times in front of the rioters ordering them to

disperse.

36. For each person mentioned in your answer to

Interrogatory Number Thirty-Four, state:

A. The time when such order was given;

B. The place where such order was given;

C. The person or persons to whom such order was

given (stating unit and rank where applicable,

if any);

alas, a

80

D. The specific reasons, if any, such order was given;

E. The manner in which the order was to be carried

out;

F. The manner in which the order was in fact carried

out; and

G. The substance of the order.

ANSWER: Refer to the Answer to Interrogatory No.

35.)

a

37. Describe with specificity the hand and/or arm

signal or signals which constitute an order to a member of

the Ohio National Guard to shoot a gun.

ANSWER: a. Standing position, arms at waist with

palms down, arms moved out and to the side.

b. Arm is brought overhead and down pointing to di-

rection fire is to be made.

/s/ SYLVESTER DEL Corso F

/s/ Ropert CANTERBURY

(Verification, certificate of service and exhibits j

omitted in printing)

81

Civil Action No. C70-816

In the United States District Court

For THE NORTHERN District oF OHIO

EASTERN DIVISION

ELAINE B. MILLER,

Administratrix of the Estate of

Jeffrey Glenn Miller, Deceased,

Plaintiff,

vs.

JAMES RHODES, etc., et al.,

Defendants.

RELEVANT DOCKET ENTRIES

8/24/70 Complaint filed. Summons issued. 4 copies of

complaint to Marshal.

9/ 1/70 Notice of deft. Srp to take deposition of Wil-

liam W. Scranton on 9/10/70 filed. Copies

mailed 9/1/70.

10/14/70 Summons retn. & filed. Served Robert White

on 8/27/70, served Robt. Canterbury, Sylvester

Del Corso & James Rhodes on 8/31/70. Fees

$23.52.

11/16/70 Motion of defendants Del Corso, Canterbury,

and White to dismiss with memo. in support

filed. Copies mailed 11/13/70.

11/16/70 Motion of deft., James A. Rhodes, Governor, to

dismiss with memorandum filed. Copy mailed

11/13/70.

1/19/71

, 4/15/71

6/ 2/71

6/25/71

8/ 5/71

2/12/73

2/12/73

82

Memorandum of pltf. in opposition to motion

to dismiss filed. Copies mailed 1/19/71.

Motion of defts. to dismiss filed. Copy mailed

4/14/71. ~,

Memorandum & Order filed. Connell, J. Com-

plaint Dismissed at Pltf’s Cost. Copies to Inter-

ested counsel. (See C70-544)

Notice of Appeal by pltf. filed. Copies to Brown,

Alloway, & Lambros.

Certified record received in U.S.C.A. and filed.

(8-3-71) (71-1623)

True copy of Judgment from U. S. Court of

Appeals affirming judgment of District Court

filed.

Opinion from U. S. Court of Appeals filed.

(Record Returned)

COMPLAINT IN MILLER CASE

(Filed August 24, 1970)

Civil Action No. C 70-816

IN THE UNITED STATES DISTRICT COURT

For THE NORTHERN District oF OHIO

EASTERN DIVISION

(Title omitted in printing)

COMPLAINT

Plaintiff, ELamve B. MILuer, by her attorney, JosEPH

KELNER and associate attorney, ABRAHAM D. Soarer, for

her complaint herein, alleges:

83

AS AND FOR A FIRST CAUSE OF ACTION

1. Plaintiff is a citizen of the State of New York,

residing at 261-71 Langston Avenue, Borough of Queens,

City of New York and is the duly appointed administratrix

of the estate of Jerrrey GLENN MILLzR, plaintiff's son, who

died on May 4, 1970 at the age of 20, by reason of the

actions of the defendants as hereinafter stated; plaintiff

has been appointed administratrix of the estate of JEFFREY

GLENN Miter by the Surrogate’s Court, Queens County,

New York.

2. At all times herein mentioned, defendant Ruopzs

was Governor of the State of Ohio and exercised certain

powers and authority individually and as Governor of

the State of Ohio and under color of the laws of the

State of Ohio, as its agent, servant and employee.

3. At all times herein mentioned, the defendants, Dez

Corso, CANTERBURY, JONES, MARTIN, Srp, STEVENSON and the

various officers and enlisted men of Troop G, G Company,

107th Armored Cavalry Regiment of the Ohio National

Guard and A Company, First Battalion, 145th Infantry

Regiment of the Ohio National Guard, were on active

duty with the Ohio National Guard as officers and en-

listed men therein and were acting under color of the

laws of Ohio.

4. At all times herein mentioned, the defendant,

WHITE, was President of Kent State University at Kent

Ohio and exercised his powers and authority in such em-

ployment and under color of the laws of Ohio.

5. At all times mentioned herein, Jerrrey GLENN

MILLER was a full time student at Kent State University;

and on May 4, 1970 the said Jerrrey GLENN MILLER was

shot and killed by a bullet fired by one of the members

84

of the Ohio National Guard in service on the campus

at Kent State University; and at the time he was shot

the said Jerrrey GLENN MILLER was not engaged in any

riotous, aggressive, criminal, improper or provocative acts

and was not contributorily negligent in causing his death.

6. This court has jurisdiction pursuant to Title 42,

United States Code, Section 1983 and Title 28, United

States Code, Sections 1331 and 1343 in that plaintiff's cause

of action seeks redress for the deprivation under color of

‘state law, of the life of Jerrrey GLENN MILLER, his rights,

privileges and immunities secured by the Constitution of

the United States, and it arises under Federal law, with

the matter in controversy exceeding $10,000 exclusive of

interest and costs.

7. At all times mentioned herein, Kent State Uni-

versity was a state university of Ohio, organized pursuant

to the laws of Ohio and had its main campus in the City

of Kent, Portage County, Ohio.

8. At all times mentioned herein on May 4, 1970

and prior thereto, the defendants, acting individually and

in concert with each other and under color of the laws

of the State of Ohio, subjected and caused the said JEFFREY

GLENN MILLER to be subjected to the deprivation of his

life, his rights, privileges and immunities secured by the

Constitution and laws of the United States; that such dep-

rivation was without due process of law in that, by reason

of the defendants’ actions on May 4, 1970 and prior there-

to, plaintiff’s decedent, Jerrrey GLENN MILLER, was shot

and killed on May 4, 1970 by a bullet fired by one of

the aforesaid National Guard members on duty on the

-campus of Kent State University; and the defendants inten-

tionally, recklessly, willfully and wantonly engaged in the

following acts among other things which caused or con-

85.

tributed to the causing of the deprivation alleged herein;

that they used and fired live ammunition with the intent

to kill Jerrrey GLenn Mriier and other students lawfully

upon the said campus; that the officers of the said National

Guard ordered the use of said live ammunition and, upon

information and belief, gave the orders to fire the same

at the said time and place; that they thereby caused the

death of the said Jerrrey GLENN Mmuer; that by reason

of the foregoing the plaintiff, individually and as adminis-

tratrix of the estate of JerrreEy GLENN MILLER and other

members of his family, were damaged and are entitled

to compensatory damages in the amount of two million

($2,000,000) dollars and punitive damages in the amount

of ($2,000,000) dollars against all of the defendants.

AS AND FOR A SECOND CAUSE OF ACTION

9. Plaintiff repeats, reiterates and realleges each and

every allegation hereinabove contained in paragraphs (1)

through (8) with the same force and effect as if fully

set forth herein.

10. That all of the defendants were reckless, careless

and negligent in their failure to take precautions to avoid

the occurrence of such shooting; in permitting the use

of firearms under the existing circumstances; in permitting

the said firearms to be loaded with live ammunition under

circumstances not justifying such use; in authorizing and

permitting the use of illegal and excessive force and vio-

lence in relation to the situation prevailing upon the Kent

State campus at such time; in the failure to order and

prevent troops of the Ohio National Guard from firing

live ammunition at unarmed persons thereat under such

or similar circumstances without legal justification; in fail-

ure to require the establishment and promulgation of

proper rules, regulations and standards which would pro-

hibit the unauthorized use and firing of firearms where

the same was unjustified; in the promulgation of rules,

regulations and training procedures applicable to civil dis-

turbances which were vague, indefinite and confusing and

which authorized and permitted troops to use firearms

within their own discretion and without proper standards,

safeguards, orders or training prohibiting such improper

use of firearms; in the failure to establish and conduct

proper training procedures to prevent the happening of

such an occurrence; in providing improper and insufficient

training of troops for duty under such circumstances; in

creating an unreasonable and imminent risk of injury and

death to students upon the campus, including JErrrry

GLENN MILLER; and all of the defendants were otherwise

reckless, careless and negligent.

11. On May 4, 1970 various officers and enlisted men

intentionally and without just cause or provocation, fired

intentionally at the said Jerrrey GLENN MILLER and others

with intent to kill, causing the death of Jerrrey GLENN

MILLER on the campus of Kent State University, in viola-

tion of the statutes and laws in such cases made and pro-

vided.

12. By reason of the foregoing the plaintiff, in-

dividually and as administratrix of the estate of JEFFREY

Guienn Mier, and other members of his family, were

damaged and are entitled to compensatory damages in the

amount of two million ($2,000,000) dollars and punitive

damages in the amount of ($2,000,000) dollars against all

of the defendants.

Wuererore, plaintiff prays for judgment against all

of the defendants jointly and severally for compensatory

damages in the amount of two million ($2,000,000) dollars

and punitive damages in the amount of two million

87

($2,000,000) dollars, together with the costs and disburse-

ments of this action,

/s/ Sreven A. Soe.

/8/ JoSEPH KELNER

Attorney for Plaintiff

217 Broadway

New York, New York 10007

(212) 233-7890

MOTION TO DISMISS IN MILLER CASE

(Filed November 16, 1970)

Civil Action No. C70-816

IN THE UNITED STATES DISTRICT COURT

For THE NorTHERN District or Onto

Eastern Division

(Title omitted in printing)

MOTION TO DISMISS

Now come the defendants and respectfully move this

Court, pursuant to Rule 12 b(1) of the Federal Rules of

Civil Procedure, for an order dismissing both causes of ac-

tion in the complaint herein because the Court lacks juris-

diction of the subject matter. These defendants are sued

in their representative capacities as public officials and

agents of the sovereign state of Ohio. Because it appears

from the body of the complaint that the matter involved

is one in which the State of Ohio is primarily concerned

and will be affected by any judgment rendered herein,

the action is one essentially against the State of Ohio

which has not consented to be sued by ——* its con-

stitutional right to sovereign immunity.

Respectfully submitted,

Crappe, New Lon, Ports, ScHMIDT,

Brown & JONES

42 East Gay Street

Columbus, Ohio 43215

Telephone: 228-5511

By /s/ Cuaaes E. Brown

Attorney for Defendants Sylvester

Del Corso, Robert Canterbury

and Robert White

(Memorandum in support of motion to dismiss

omitted in printing)

MOTION TO DISMISS IN MILLER CASE

(Filed November 16, 1970)

Civil Action No. C70-816

IN THE UNITED STATES DISTRICT COURT

For THE NorRTHERN DIsTRICT OF OHIO

Eastern DIvIsion

(Title omitted in printing)

MOTION TO DISMISS

1. Now comes the defendant, James A. Rhodes, Gov-

ernor of the State of Ohio, and respectfully moves this

Court, pursuant to Rule 12(b)(1) of the Federal Rules of

Civil Procedure, for an order dismissing both of the alleged

causes of action in the Complaint herein for the reasons:

(1) The Court lacks jurisdiction of the subject

matter, because this defendant is sued in his repre-

sentative capacity as a public official and agent of

the sovereign state of Ohio; therefore, the action is one

essentially against the State of Ohio which has not

consented to be sued by waiving its constitutional right

to sovereign immunity;

(2) That, as a matter of law, it affirmatively

appears from the complaint of plaintiff that, while no

negligent, willful or wanton act of defendant James

A. Rhodes, Governor, has been committed, it further

affirmatively appears that any act or omission on the

part of Governor James A Rhodes, defendant herein,

was remote from the injury to and death of plaintiff's

decedent, and was separated therefrom by a substan-

tial intervening cause.

Respectfully submitted,

Topper, ALLoway, .GoopMan, Dz-

Lzone & Durrey

By /s/ R. Brooxe ALLoway,

Attorneys for Defendant James

A. Rhodes, Governer of the

State of Ohio

(Memorandum in support of motion to dismiss

omitted in printing)

90

MOTION TO DISMISS IN MILLER CASE.

(Filed April 15, 1971)

Civil Action No, C70-816

UNITED STATES DISTRICT COURT

NORTHERN Disrrict or OHIO

EASTERN D1IvIsION

(Title omitted in printing)

MOTION TO DISMISS

- Now come the defendants, Major Harry D. Jones, Cap-

tain Raymond J. Srp, and Captain John E. Martin, duly

commissioned officers of the Ohio National Guard, and

respectfully move this Court, pursuant to Rule 12 (b) (1)

of the Federal Rules of Civil Procedure for an order dis-

missing the Complaint herein because the Court lacks

jurisdiction of the subject matter:

(a) These defendants are sued in their repre- i

sentative capacity as military officers and agents of

the sovereign State of Ohio, because it appears from

the caption and the body of the Complaint that the

matter involved is one in which the State of Ohio is

primarily concerned and will be affected by any judg-

ment rendered herein, and the action is essentially

against the State of Ohio, and the State of Ohio has

not consented to be sued by waiving its constitutional

right to sovereign immunity.

See ae

(b) Aside from Ohio being the real party in in-

terest and therefore being immune to civil suits, de-

fendants are thus immune to civil suits by the statu-

tory law of the State of Ohio.

91

(c) It is evident from the body of the Complaint

that while no negligent, willful, wanton actions of

these defendants has been committed, and it affirma-

tively appears from the body of the Complaint that

any act or omission to act by these defendants was re-

mote from the injury to and death of plaintiff’s dece-

dent and was separated therefrom by a substantial in-

tervening cause.

Bercer, KirscHensaum & LAMBROS

By /s/ C. D. Lamsros

806 Citizens Building

Cleveland, Ohio 44114

621-0800

Attorneys for Captain Raymond

J. Srp

/s/ Deumar A, CHRISTENSEN

607 Second National Building

Akron, Ohio

Attorney for Major Harry D.

Jones and Captain John E.

Martin

—————————

92

MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS

In support of the foregoing Motion to Dismiss, the de-

fendants adopt and incorporate herein all of the argu-

ments contained in the Memorandum in Support of the

Motion to Dismiss filed on behalf of another defendant

by the firm of Topper, Alloway, Goodman, DeLeone and

Duffey in the within cause, copy of which Memorandum

is attached hereto and made a part hereof as if fully

written out herein.

Respectfully submitted,

BERGER, KIRSCHENBAUM & LAMBROS

By /s/ C. D, Lamsros

Attorneys for Captain Raymond J. Srp

/s/ DELMAR A. CHRISTENSEN

Attorney for Major Harry D. Jones and

Captain John E. Martin

(Certificate of service and attached Memorandum

omitted in printing)

MEMORANDUM AND ORDER

OF DISTRICT

COURT, KRAUSE AND MILLER CASES

(Filed June 2, 1971)

IN THE UNITED STATES DISTRICT COURT

For THE NorTHERN District

EASTERN DIvIsION

ARTHUR Krause, Administrator of )

the Estate of Autison Krause, de-

ceased

Plaintiff

Vv.

GOVERNOR JAMES RuHopgs, et al.,

Defendants. ;

ELarneE B. Mitter, Administratrix of

the estate of JEFFREY GLENN Mn-

LER, deceased,

Plaintiff,

Vv.

JAMES RHODES, et al.,

Defendants. ]

SARAH SCHEUER, Administratrix of )

the Estate of Sanpra Lee ScHEvurn,

deceased,

or OHIO

Civil Action No.

7 C 70-544

Civil Action No.

C 70-816

Plaintiff, Civil Action No.

r © :-70-859

Vv.

JAMES RHODES, et al.,

Defendants. |

MEMORANDUM AND ORDER

Printer’s Note: The opinion and order of the Dis-

trict Court is appended to the Petition for a Writ of

Certiorari herein, Docket No. 72-1318, at pages 34-46.

———

94

OPINION OF THE COURT OF APPEALS

KRAUSE AND MILLER CASES

(Filed November 17, 1972)

Nos. 71-1622-23-24

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 71-1622

ARTHUR Krause, Administrator, etc.,

Plaintiff-Appellant,

v.

JaMEs Ruopes, Governor of the State of Ohio, et al.,

Defendants-Appellees.

No. 71-1623 *

ELAINE B. Miuer, Administratrix, etc.,

Plaintiff-Appellant,

ve

JAMES RHODES, etc., et al.,

Defendants-Appellees.

No. 71-1624

SARAH SCHEUER, Administratrix, etc.,

Plaintiff-Appellant,

v.

JAMES RuHopES, Governor of the State of Ohio, et al.,

Defendants-Appellees.

APPEALS FROM UNITED SraTes District CourT FOR THE

NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

OPINION

Printer’s Note: The opinion of the U. S. Court of

Appeals is appended to the Petition for Writ of Certiorari

in the case of Sarah Scheuer v. James Rhodes, et al.,

Docket No. 72-914, at pages 1a-69a.

(95

JUDGMENT OF COURT OF APPEALS

IN KRAUSE CASE

(Filed November 17, 1972)

No. 71-1622

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ARTHUR KRAUSE, ETC. v. GOVERNOR JAMES Ruopss, et al.

JUDGMENT

Printer’s Note: The judgment of the U. S. Court

of Appeals is appended to the Petition for a Writ of

Certiorari herein, Docket No. 72-1318, at page 28.

JUDGMENT OF COURT OF APPEALS

IN MILLER CASE

(Filed November 17, 1972)

No. 71-1623

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ELAINE B. MILier, Etc. v. JAMES RHOpEs, et al.

JUDGMENT

Printer’s Note: The judgment of the U. S. Court

of Appeals is appended to the Petition for a Writ of

Certiorari herein, Docket No. 72-1318, at page 30.

ORDER OF COURT OF APPEALS

DENYING PETITION FOR REHEARING,

KRAUSE AND MILLER CASES

(Filed January 3, 1973)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 71-1622

ARTHUR KRAUSE, ETC. V. JAMES RHODES, et al.

No. 71-1623

ELAINE B. MILLER, ETC. V. JAMES RHODES, et al.

ORDER

Printer’s Note: The order of the Court of Appeals

denying rehearing is appended to the Petition for a

Writ of Certiorari herein, Docket No. 72-1318, at pages

32-33.