Petition for a Writ of Certiorari — Scheuer v. Rhodes

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72-91 Bereme Courr, Us

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972 Soprens Cent 6

mee DEG 21 1912

' wid 4

SARAH SCHEUER, Administratrix of thp jggowstd. ROBAX.

of Sandra Lee Scheuer, Deceased\>

Petitioner,

Vv.

JAMES RHODES, SYLVESTER DEL CORSO,

ROBERT CANTERBURY, HARRY D. JONES,

JOHN E. MARTIN, RAYMOND J. SRP,

Various Officers and Enlisted Men,

and ROBERT WHITE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL E: GELTNER

LEONARD J. SCHWARTZ —

Of Counsel: _ ial American Civil Liberties Union. -- -- —~

of Ohio Foundation, Inc.

STANLEY K. LAUGHLIN, JR. 203 East Broad Street

NIKI Z. SCHWARTZ Columbus, Ohio 43215

MICHAEL S. HARSHMAN

American Civil Liberties Union MELVIN L. WULE

‘ SANFORD JAY ROSEN

of Ohio Foundation, Inc.

JOEL M. GORA

203 East Broad Street American Civil Liberties Union

Columbus, Ohio 43215 of Ohio Foundation, Inc.

22 East 40th Street

WALTER S. HAFFNER New York, New York 10016

1008 Standard Building

Cleveland, Ohio 44113 NELSON G. KARL

33 Public Square

Suite 210

Of Counsel Cleveland, Ohio 44113

Attorneys for Petitioner

Deal > 1 peepee eee

(i)

TABLE OF CONTENTS

CRIRIORES BI, on 62m 0600 590 00 60 hele wore d'» 6508 1

pb ot era ee eer eee Cee Teer er 2

QUESTIONS PRESENTED ...........-22ece0ees 3

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THE CASE ... uci cccednccsics 4

STATEMENT OF THE CASE ..........-2c0cesee- 5

1. SUMMARY OF THE COMPLAINT ............ 5

2. PROCEEDINGS BUUGO, 2b icc cdeccccwsons 8

REASONS FOR ALLOWANCE OF THE WRIT........ 11

1. THE ELEVENTH AMENDMENT ............. 11

2. EXECUTIVE IMMUNITY ............522000- 13

3. REPUDIATION OF RULE 8, FED.R.CIV.P. .... 16

COPRAATIIN owe oie sce c cee ee see 0 eee Rees aed 17

TABLE OF AUTHORITIES

Cases:

American Federation of State, County and Municipal

Employees v. Woodward, 406 F.2d 137 (8th Cir.,

SOOT), gee oe ue is ween eee eh a epee es beans 13

Anderson v. Nosser, 456 F.2d 835 (Sth Cir. 1972) ..... 5

Barr v. Mateo, 360 U.S. 564 (1959) ............... 15

Bayer v. Chaloux, 288 F. Supp. 366 (N.D.N.Y. 1968) .... 13

Birnbaum v. Trussel, 347 F.2d 86 (2nd Cir. 1965)...... 14

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ..... 12, 14, 15

Board of Trustees of Arkansas A. & M. College v.

Davis, 396 F.2d 730 (8th Cir.), cert. denied, 89

Sup. Ct. 401 (1968). 0... cc cece cee c eevee 13

(ii)

Cases, continued:

Brazier v. Cherry, 293 F.2d 401 (Sth Cir.), cert. denied,

968 US. F210 CI9G1) 20 cc ccc esccevcceveress 5

Carter v. Carlson, 447 F.2d 358, 365 (D.C. Cir. 1971) . . 5, 14

Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ........- 16

Cruz v. Beto, 405 US. 319 (1972)... 6... . ee eee eens 16

District of Columbia v. Carter, 40 U.S.L.W. 3314 (No.

8. yy : er era 5,14

Dunn v. Blumstein, 405 U.S. 330 (1972).........-.-. 12

Dunn v. Estes, 177 F. Supp. 146 (D. Mass. 1953) ...... 14

Ex Parte Young, 209 U.S. 123 (1908) .........---- 11, 13

Ford Motor Co. v. Treasury Department of Indiana,

9935 US, SIP COPED oo vie Ke crcewcrceresneuce 11

Georgia Railroad and Banking Co. v. Redwine, 342

US. 299 (1952)... ccc cccccdccccesescsccces 11

Gilligan v. Morgan, No. 71-1553 (October 24, 1972)..... 7

Great Northern Insurance Co. v. Read, 322 US. 47,

SRST CIGOED occ cccccewrssecoregecssscses 12

Gregoire v. Biddle, 177 F.2d 579 (2nd Cir. 1949)....-.. 15

Griffin v. Prince Edwatd County, 377 U.S. 218 (1964)... 11

Haines v. Kerner, 404 U.S. 518 (1972).......-.---5: 16

Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972) ......- 5

Jankins v. Averett, 424 F.2d 1228 (4th Cir. 1970)...... 5

Jenkins v. McKeithen, 395 U.S. 411, 423-424 (1969).... 16

Jobson v. Heine, 355 F.2d 129 (2nd Cir. 1965)...... ae

Jones v. Perrigan, 459 F.2d 81 (6th Cir. 1972)......... 14

Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968)....... 14

Krause v. Rhodes (No. C70-544, N.D.O., E.D.), 71-1623,

NX ee ee ey a ee ee 2

(itt)

Cases, continued:

McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968) ... 14

Meredith v. Allen County War Memorial Hospital Ass’n.,

397 F.2d 33 (6th Cir. 1968)..........2 ee eeees 14

Miller v. Rhodes (No. C70-816, N.D.O., E.D.),

peo Le re eee ee ee ee 2

Monroe v. Pape, 365 U.S. 167 (1961)..........-- 6,12, 15

Morgan v. Rhodes, 456 F.2d 608 (6th Cir. 1972)......- 7

Pierson v. Ray, 386 U.S. 547 (1967) .........-+-++- 15

Pope v. Williams, 193 U.S. 621 (1904)..........---- 12

Puckett v. Cox, 456 F.2d 233 (6th Cir. 1972)......... 6

Roberts v. Williams, 456 F.2d 819 (Sth Cir.), cert.

denied 404 U.S. 866 (1971), addendum to opinion,

456 F.2d 834 (Sth Cir. 1972) 2... ccc cccvcceee 6

Scheuer v. Rhodes, et al., (N.D.O., E.D. No. C72-439,

eo er ee rr eres ree 6

Scolnick v. Winston, 219 F. Supp. 836, 840 (S.D.N.Y.,

1963), aff'd. 329 F.2d 716 (2nd Cir. 1964)......... 13

Screws v. United States, 325 U.S. 91 (1945).......... 5, 12

~ Sostre v. McGinnis, 442 F.2d 178, 205 (2nd Cir.

ee ee ee ee eee ae ae eee a ae 13, 14

Spalding v. Vilas, 161 U.S. 483 (1896).............. 15

Stringer v. Dilger, 313 F.2d 536 (]Oth Cir. 1963)....... 5

Tenney v. Brandhove, 341 U.S. 367 (1951)..........- 15

Whirl v. Kern, 407 F.2d 781 (Sth Cir. 1968).......... 14

Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969)......... 13

Statutes:

42 USL. Section 1963 ....cccccvae 3, 4, 5, 8, 13, 14, 15

pik Seg eR! Se ee ro eee ar 4

Rules:

Rule 8, Federal Rules of Civil Procedure

Rule 12 (b), Federal Rules of Civil Procedure

Miscellaneous:

3 K.C. Davis, Administrative Law Treatise, Sec. 27.03 ....

~~ IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No.

SARAH SCHEUER, Administratrix of the Estate

of Sandra Lee Scheuer, Deceased,

Petitioner,

Vv.

JAMES RHODES, SYLVESTER DEL CORSO,

ROBERT CANTERBURY, HARRY D. JONES,

JOHN E. MARTIN, RAYMOND J. SRP,

Various Officers and Enlisted Men,

and ROBERT WHITE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT.

Petitioners request that a Writ of Certiorari be issued to

review the judgment of the United States Court of

Appeals for the Sixth Circuit affirming the Judgment of

the Unites States District Court for the Northern District

of Ohio, Eastern Division, which dismissed the cartes ome

in this action against all defendants.

OPINIONS BELOW

The opinion of the Court of Appeals is not yet

officially reported. It is included in the Appendix, infra,

at pp. la-69a. The decision of the Court of Appeals was

rendered in this case and in Krause v. Rhodes and Miller

v. Rhodes (No. 71-1623, 6th Cir.), which were

consolidated for argument. The Opinion of Judge Weick

is at p. 3a. The separate concurring opinion of Judge

O’Sullivan is at p. 27a and the dissenting opinion of

Judge Celebrezze is at p. 32a.

The opinion of the District Court has not been

reported. It, too, was rendered in this case and in Krause

vy. Rhodes (No. C70-544, N.D.O., E.D.) and Miller vy.

Rhodes (No. C70-816, N.D.O., E.D.), which were decided

together. The District Court’s memorandum opinion and

order is included in the appendix at p. 70a.

Because this case was decided on a motion to dismiss

directed at the face of the complaint, its text is of

particular importance in reading this petition. A copy of

the complaint is included in the appendix at p. 83a-92a.

JURISDICTION

The date of the judgment of the United States Court

of Appeals for the Sixth Circuit was November 17, 1972,

which was also the date of entry. No motion for

rehearing, or other application, has been filed which

would extend the time of filing this petition.'

This Court has jurisdiction to review the judgment of

the Court of Appeals by writ of certiorari pursuant to

Title 28, United States Code, Section 1254(1).

'Petitioner is informed that the plaintiffs in Krause and Miller

have petitioned for reargument in the Court of Appeals.

EAL ero =

QUESTIONS PRESENTED

1. Whether an action brought in a United States

District Court under Section One of the Civil Rights

Action of 1871, 17 Stat. 13, 42 U.S.C. Section 1983,

against the Governor and other officers of the State of

Ohio, which specifically charges each of the named

defendant state officials with personal wrongdoing

causing deprivation of Constitutionally secured rights,

and which demands money damages from each

individually, making no claim on the Treasury of Ohio or

any public funds, is an action against the State of Ohio,

thereby falling under the Eleventh Amendment’s

prohibition against suit of a State in a federal court.

2. Whether there is a doctrine of unqualified executive

immunity which immunizes state officials from personal

liability for deprivations of rights, privileges and

immunities secured by the United States Constitution

and, if so, whether, in an-action brought under Section

One of the Civil Rights Act of 1871, 17 Stat. 13, 42

U.S.C. § 1983, against the Governor of Ohio, Adjutant

General of the Ohio National Guard, officers and enlisted

men of the Ohio National Guard and the President of a

state university, such a doctrine mandates the outright

dismissal of a complaint charging each with specific

personal wrongdoings causing deprivations of constitu-

tionally secured rights. (

3. Whether a United States District Court, pursuant to

Rule 8 of the Federal Rules of Civil Procédure, when

deciding a motion to dismiss a complaint based solely on

the sufficiency of its allegations, is required to take its

allegations as true.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THE CASE

1. United States Constitution, Amendment XI:

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... .

2. Section 1 of the Civil Rights Act of April 20, 1871,

17 Stat. 13, 42 U.S.C. Section 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.

3. Jurisdiction in the United States District Court was

premised upon 28 U.S.C. Section 1343(3) and (4), which

provide:

The district courts shall have original jurisdiction

of any civil action authorized by law to be

commenced by any person: ... (3) To redress the

deprivation, under color of any state law, statute,

ordinance, regulation, custom or usage, of any right,

privilege or immunity secured by the Constitution

of the United States or by any Act of Congress

providing for equal rights of citizens or of all

persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for

the protection of civil rights, including the right to

vote.

STATEMENT OF THE CASE

On May 4, 1970, Petitioner’s decedent and daughter,

Sandra Lee Scheuer, was killed on the campus of Kent

State University, Kent, Ohio by a bullet fired by an Ohio

National Guardsman who had been ordered to the

campus by the Governor of Ohio. As a consequence of an

investigation conducted thereafter by Petitioner’s

counsel, Petitioner commenced this action in the District

Court on September 8, 1970.?

1. Summary of the Complaint

The first claim in this action is based upon Section One

of the Civil Rights Act of 1871, 17 Stat. 13, 42 U.S.C.

Section 1983. It charges that the defendants acted in

concert and subjected the plaintiff's decedent to a

deprivation of rights, privileges and immunities secured

by the United States Constitution, specifying that the

plaintiff's decedent, when shot by Ohio National Guard

troops, was deprived of life without due process of law.

The complaint is thus based upon the settled rule that

one killed or injured by intentional, reckless, arbitrary or

unjustified conduct of state officials is deprived of life or

liberty, without due process of law,? and that such a

2Because of the unusual procedural context of this case—a

motion to dismiss was granted without any factual matter offered

by the defendants—counsel for Petitioner has, of course, limited

the statement of the case to the facts of second, —

complaint in this action.

3See, e.g., Screws v. United States, 325 US. 91 (1945); Howell

v. Cataldi, 464 F.2d 272 (3rd Cir. 1972); Anderson v. Nosser, 456

F.2d 835 (Sth Cir. 1972); Carter v. Carlson, 447 F.2d 358 (DC.

Cir. 1971), cert. granted in part sub. nom. District of Columbia v.

Carter, 40 U.S.L.W. 3314 (No. 71-564, Jan. 10, 1972); Jenkins v.

Averett, 424 F.2d 1228 (4th Cir. 1970); Stringer v. Dilger, 313

F.2d 536 (10th Cir. 1963); Brazier v. Cherry, 293 F.2d 401 (Sth

Cir.), cert. denied 368 U.S. 921 (1961).

deprivation is actionable at law under Section 1983.4

The defendants in this action were, at the time it was

commenced, the Governor of Ohio, the Adjutant General

of the Ohio National Guard and Assistant Adjutant

General, three commissioned officers of the Ohio

National Guard, unnamed officers and enlisted men of

the Ohio National Guard,* and the President of Kent

State University. Following the conclusory allegation of

deprivation of life without due process of law set forth

above, the complaint proceeds to detail the charge as to

each defendant with specific allegations of personal

misconduct causally related to the death of plaintiff's

decedent. Thus, Governor Rhodes is charged, inter alia,

with ordering Ohio National Guard troops to break up

lawful assemblies, permitting them to carry guns loaded

with live ammunition and permitting them to shoot at

4See Circuit Court decisions cited in footnote 3, above. See also

Monroe v. Pape, 365 U.S. 167 (1961). To the extent that the

complaint might be read as charging, in part, negligent rather than

intentional, conduct by state officials resulting in deprivation of

life without due process of law, the cases cited in note 3, supra,

likewise support such a theory. See also Puckett v. Cox, 456 F.2d

233 (6th Cir. 1972); Roberts v. Williams, 456 F.2d 819 (Sth Cir.)

cert. denied 404 U.S. 866 (1971), addendum to opinion, 456 F.2d

834 (Sth Cir. 1972).

5The caption describes “various officers and enlisted men” and,

in Paragraph 7 of the complaint it is alleged that their names “are

not now known to plaintiff’ but that they “will be joined . . . as

soon as their names become known ...” On May 3, 1972,

plaintiffs filed a successor complaint, treated as a new action.

Scheuer v. Rhodes, et al. (N.D.O., E.D. No. C72-439, May 3,

1972), naming certain additional National Guardsmen.

persons without justification, Complaint, para. 13(a).°

Defendants Del Corso and Canterbury, Ohio National

Guard Generals, are charged, inter alia, in addition to

permitting the use of loaded guns and permitting unjusti-

fied shootings, with ordering inadequately trained and

incapable troops to engage ir. conduct which greatly

increased the risk of shooting of innocent persons.

Complaint, para. 13(b) and (c).

Defendants Jones, Martin and Srp, Ohio National

Guard Officers, are charged, in the alternative, with

having ordered troops to shoot at persons without legal

justification or with having failed to restrain troops under

their direct command from unlawful shootings. Com-

plaint, para. 13(d). The unnamed National Guard troops

and officers are charged, in substance, with having shot

without legal justification or, in the alternative, pursuant

to orders which were patently unlawful.

Finally, Defendant White is charged with reckless

omission to act when his actions could have decreased the

risk of shooting of innocent persons by the Ohio National

Guard.’

©The Pleading pattern of the complaint, following the

exhortation of Rule 8, Fed. R. Civ. P. to plead “a short and plain

statement of the claim showing that the pleader is entitled to relief

...;” is to allege material facts. It purposely avoids detailed

cataloguing of evidence as being inconsistent with the goals of Rule

7 An additional case filed in the District Court arising from the

Kent shootings is Morgan v. Rhodes, 456 F.2d 608 (6th Cir. 1972),

cert. granted sub. nom. Gilligan v. Morgan, October 24, 1972 (No.

71-1553). That case involves a basic claim that some of the

conduct involved in this action, as well as other conduct, was

unlawful and deprived persons, including plaintiff's decedent, of

constitutionally protected rights. The wrongdoing of the state

officials alleged in the Morgan complaint, however, extends over

In addition to the foregoing claim arising under 42

U.S.C. Section 1983, the complaint sets forth several

pendent causes of action, based on the same facts, arising

under the law of Ohio.

The ad damnum clause prays for “compensatory

damages against all defendants, jointly and severally, in

the amount of One Million Dollars ($1,000,000.00) and

for punitive damages in an amount which this Court

determines is just and proper . . .”” No damages are sought

from the State of Ohio, its treasury or its property.

Moreover, there is no known mechanism under the law

of Ohio by which a judgment against the defendants

would entitle the plaintiff to execution of judgment

against the State of Ohio, its treasury or its property.

2. Proceedings below

Motions to dismiss pursuant to Rule 12(b), Fed. R.

Civ. P., were filed in the district court on behalf of all

named defendants on the ground that the action,

although nominally against them as individuals, was, in

fact, against the State of Ohio. No factual matter was

offered by the defendants in support of the motions

the entire period of May 1-4, 1970, and the complaint raises

factual issues, some of which are different from those in this

action.

The complaint in Morgan is included in the appendix,

commencing at p. 93a. It is included for comparative purposes

primarily because Judge O’Sullivan, in his concurring opinion in

the Court of Appeals, treated the presence of certain allegations in

the Morgan complaint and their absence in Scheuer as evidence of

and attempted to support dismissal on that basis.

Comparison of the two complaints is enough to demonstrate that

nothing in the Morgan allegations conflicts with those in Scheuer

and vice versa.

tea eaiaey

oye

other than copies of proclamations by the Governor of

Ohio activating the Ohio National Guard and recording

the fact of their having been ordered to active duty in

Kent.®

Judge Connell granted the motion to dismiss, con-

cluding that “[t]he Eleventh Amendment to the United

States Constitution prohibits this Court from exercising

jurisdiction in this case . . .”,? appendix at 92a. In the

course of his opinion, Judge Connell “found”’,

The Governor of Ohio had determined in good

faith that on the basis of the facts as they appeared

that mob rule existed at Kent State University and

this Court cannot substitute its position for that of

the executive of the State of Ohio.

The question of emergency compels the Governor

to act decisively in suppressing this most dangerous

activity, and the citizens of Ohio so demand it.

(Appendix at 80a).

Neither the good faith of the Governor of Ohio nor the

demands of the citizens of Ohio were alleged in the

complaint and, as stated above, no factual. matter was

offered by defendants to support any findings.

The appeal was heard by a panel of the Sixth Circuit

consisting of Judges Weick and Celebrezze and Senior

8Copies of the Governor’s orders can be found appended to

Judge Weick’s opinion in the Court of Appeals and are reproduced

in the appendix at 23a.

9While no order of consolidation was ever made to consolidate

this case with Krause v. Rhodes and Miller v. Rhodes, they were

apparently all routed to Judge Connell by some mechanism not

apparent to counsel. Thereafter, the Clerk of the Sixth Circuit

continued to consolidation on appeal.

}

Judge O’Sullivan. Counsel for defendants attempted to

limit the issue on appeal to the question of whether the

Eleventh Amendment barred suit, stating, ““The sovereign

immunity of the State of Ohio, embodied in the Eleventh

Amendment, is the only relevant consideration at

issue.””!°

Judge Weick wrote the Court of Appeals’ affirming

opinion for himself and Judge O’Sullivan and held “‘that

the actions against the Governor, the officers of the

National Guard, and the President of Kent State Univer-

sity, are in substance and effect actions against the State

of Ohio. Suits against the State are prohibited by the

Eleventh Amendment.” (Appendix at 20a). In addition,

he held that, “the Governor, the officers of the Guard,

and the President of Kent State University all have

executive immunity” (/bid. ).

Judge O’Sullivan wrote a concurring opinion, finding

that, for the defendants to have failed to do what they

did “‘would have been dereliction of duty” (appendix at

30a) and that “[t)he pleadings presented to the District

Judge were clearly contrived to hide rather than disclose

the true background of the involved events . . .” appendix

at 28a).

Judge Celebrezze dissented from themajority opinion

in all respects (Appendix at 32a-69a).

1° Brief of all Defendants-Appellees in Court of Appeals at p. 10,

incorporated by referance in separate brief of Defendant Rhodes in

Court of Appeals.

REASONS FOR ALLOWANCE

OF THE WRIT

This case presents the most compelling of reasons for

allowing the writ. The Court of Appeals has decided a

basic issue of constitutional law in a manner in direct

conflict with a consistent line of controlling decisions of

this Court. Moreover, it has done so in a case of

overriding public importance and done so in a manner

discrediting to the entire judicial process.

1. The Eleventh Amendment

In 1908, this Court firmly established in Ex Parte

Young, 209 U.S. 123 (1908), the basic tenet of our

constitutional law that a state official who engages in

conduct in violation of the United States Constitution

loses any shield of immunity otherwise possessed by the

State. Ex Parte Young has been consistently read by this

Court as precluding the assertion by a state official that,

since suit against the official affects the conduct of the

State, the suit is actually against the sovereign. See, e.g.,

Griffin v. Prince Edward County, 377 U.S. 218 (1964);

Georgia Railroad and Banking Co. v. Redwine, 342 U.S.

299 (1952); Ford Motor Co. v. Treasury Department of

Indiana, 323 U.S. 459 (1944). Ex Parte Young’s

applicability to damage actions has been recognized by

this Court at least since the case last cited, in which

Justice Reed wrote for a unanimous Court,

Where relief is sought under general-law from

wrongful acts of State officials, the sovereign

immunity under the Eleventh Amendment does not

extend to wrongful individual action, and the citizen

is allowed a remedy against the wrongdoer per-

sonally. (citations omitted), 323 U.S. at 462.

See also Great Northern Ins. Co. v. Read, 322 U.S. 47,

50-51 (1944).

In this case, the Court of Appeals reasoned that since

suit in cases like the present one could affect the conduct

of State officials—for example, they could be intimidated

from engaging in unconstitutional practices—the State

was affected as sovereign.

- Judge Celebrezze was certainly correct in asserting, in

his dissenting opinion below that,

{[T]o hold: that the present suits against state

officials under Section 1983 are barred by the

Eleventh Amendment would in effect overrule the

Supreme Court’s holding in Ex Parte Young ...

(appendix at 39a)"!

Moreover, this is not a case in which the Court of

Appeals, perceiving a break in doctrine in this Court, or

in the lower federal courts, justifiably departs from an

aged precedent in the fair expectation that, were the

question before this Court, it would no longer adhere to

its precedent. See, e.g., Dunn v. Blumstein, 405 U.S. 330

(1972), and cases cited at p. 333 n. 3 predicting demise

of Pope v. Williams, 193 U.S. 621 (1904). On the

"lactually a very credible argument can be made for the

proposition that, even without the Ex Parte Young doctrine suit

could be maintained in this case without running afoul of the

Eleventh Amendment. The position rests on the proposition that a

wrongdoing official acts with state authority but that the judgment

does not run against the State. See, e.g. Monroe v. Pape, 365 US.

167 (1961); Screws v. United States, 325 US. 91 (1945). Cf.

Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 US. 388 (1971). The contrary result, however,

cannot be reached without directly confronting the principle of Ex

Parte Young. For a damage action is a fortiori allowed under the

principle of Ex Parte Young.

contrary, the viability of Ex Parte Young has not

seriously been questioned by this Court. See 3 K.C.

Davis, Administrative Law Treatise §27.03 at 553. In

addition, in the few recently reported cases in other

lower federal courts in which the position relied on below

was suggested it was rejected as untenable. See, ¢.g.,

Sostre v. McGinnis, 442 F.2d 178, 205 (2nd Cir. 1971);

Whitner v, Davis, 410 F.2d 24 (9th Cir. 1969); American

Federation of State, County and Municipal Employees v.

Woodward, 406 F.2d 137 (8th Cir. 1969); Board of

Trustees of Arkansas A. & M. College v. Davis, 396 F.2d

730 (8th Cir.), cert. denied 89 Sup. Ct. 401 (1968);

Bayer v. Chaloux, 288 F. Supp. 366 (N.D. N.Y. 1968);

Scolnick v. Winston, 219 F. Supp. 836, 840 (S.D. N.Y.

1963), affirmed 329 F.2d 716 (2nd Cir. 1964).

In short, the decision below can only be characterized

as a flagrant rejection of binding precedent. It demands

review by this Court.

2. Executive Immunity

Despite the fact that counsel for respondents in the

Court below declined to rely on anything but their

challenge to the district court’s jurisdiction, Judge

Weick’s opinion relies on the alternative ground that all

of the defendants sued were protected by an absolute

executive immunity. The application of that doctrine to

cases such as this would, of course, have an effect

identical to the Court’s Eleventh Amendment:ground; it

would for all practical purposes repeal Section One of the

Civil Rights Act of 1871, 42 U.S.C. §1983 insofar as it

authorizes damage actions against state officials. '?

121m his concurring opinion, Judge O'Sullivan makes it quite

clear that it is his purpose to cripple the Civil Rights Act. Appendix

at 27a.

granted in part sub. nom. District of Columbia v. Carter,

40 U.S.L.W. 3314 (No. 71-564, Jan. 10, 1972); Sostre v.

McGinnis, 442 F.2d 178, 205 n. 51 (2nd Cir. 1971) (en

banc); Jobson v. Heine, 355 F.2d 129 (2nd Cir. 1965);

Birnbaum y. Trussel, 347 F.2d 86 (2nd Cir. 1965);

Roberts yv. Williams, 456 F.2d 819 (Sth Cir.), cert.

denied, 404 U.S. 866 (1971), addendum 456 F.2d 834

(Sth Cir. 1972); Whirl v. Kern, 407 F.2d 781 (Sth Cir.

1968); Jones v. Perrigan, 459 F.2d 81 (6th Cir. 1972);'°

Meredith v. Allen County War Memorial Hospital Ass’n.,

397 F.2d 33 (6th Cir. 1968); Joseph v. Rowlen, 402 F.2d

367 (7th Cir. 1968); McLaughlin v. Tilendis, 398 F.2d

287 (7th Cir. 1968).

To the extent that the decision below and dictum in a

few other lower court cases suggest the applicability of

executive immunity to actions under 42 U.S.C. §1983,

see, e.g., Dunn v. Estes, 177 F. Supp. 146 (D. Mass.

1953), this would be an appropriate occasion for this

Court to resolve the matter.'*

13 Judge Weick’s dissenting opinion in Jones, 359 F.2d at 84-85,

when compared to his opinion in this case, demonstrates his refusal

to adhere to stare decisis in his own circuit, as well as that lafd

down by this Court.

14The claim of executive immunity to damage actions for

deprivation of a constitutional right was before the Court in Bivens

y. Six Unknown Named Agents of the Federal Narcotics Bureau,

403 U.S. 388 (1971), but was not decided because not considered

The primary reason for reviéw as to this point,

however, is that the Court of Appeals has placed the

second leg of its holding on executive immunity in an

effort to shore up its untenable position on the Eleventh

Amendment. It would be a grave injustice to permit the

Court of Appeals to insulate a basically lawless decision

from review by adopting an alternative ground of

in the Court of Appeals. On remand, the Panel of the Second

Circuit held the particular defendants not immune but, in a

departure from its precedents cited supra, suggested that

supervisory persons might be immune. 456 F.2d 1339 (2nd Cir.

1972).

There are no direct precedents in this Court. In Barr v. Mateo,

360 U.S. 564 (1959), four members of the Court concurred in

Justice Harlan’s opinion holding a federal agency head immune to

suit for common law libel. Justice Black’s fifth vote was premised

on his antipathy to libel actions. The Barr opinion of Justice

Harlan adopted the position of Judge Hand in Gregoire v. Biddle,

177 F.2d 579 (2nd Cir. 1949), cert. denied, 339 U.S. 949 (1950),

applying absolute immunity to the Attorney General of the United

States in a common law false imprisonment action. Of note as to

Gregoire is the fact that the Civil Rights Act charge in Gregoire was

invalid because the action was against federal officials. As a

consequence, Judge Hand expressly refused to consider whether his

decision was applicable in a Civil Rights Act case. Justice Harlan,

who wrote Barr, has twice expressed himself as seeing deprivations

of constitutional rights as different in kind and more serious than

state law torts. Monroe v. Pape, 365 US. 167, 196 (1961)

(concurring opinion). See also Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The many circuit court decisions rejecting executive immunity

under 42 U.S.C. Section 1983 primarily do so on the ground that,

whereas legislative immunity had independent precedent in the

“Speech and Debate” clause of Article I, see Tenney v. Brandhove,

341 U.S. 367 (1951), and judicial immunity has long-standing

historical roots, see Pierson v. Ray, 386 U.S. 547 (1967), no

suggestion of executive immunity appeared in American law until

long after adoption of the Civil Rights Act of 1871. See Spalding v.

Vilas, 161 U.S. 483 (1896).

decision which is itself against the great weight of

authority.

3. Repudiation of Rule 8, Fed. R. Civ. P.

Of the three judges in the courts below who have voted

against Petitioner’s position on the law, two have

expressly refused, in their opinions, to adhere to the

long-standing rule that, in testing the sufficiency of a

complaint, its allegations must be treated as true. See,

e.g., Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner,

404 U.S. 518 (1972); Jenkins v. McKeithen, 395 U.S.

411, 423-424 (1969); Conley v. Gibson, 355 U.S. 41,

45-46 (1957). Judge Connell took the unusual step of

finding “good faith” on allegations which could only be

read as alleging bad faith. Judge O’Sullivan’s refusal to

treat the pleadings as true is even more passionate. He

accuses counsel of “dissembling” and “contriving” to

hide the true facts and comes very close to concluding,

on the basis of “judicial notice,” that the killings were

justified.

On the basis of such unprincipled conduct, it would be

a rejection of reality to engage in the presumption that

_ the decision of Judge Connell and the vote of Judge

O'Sullivan were not caused, at least in part, by their views

of the facts. The record supports the fair inference—

indeed it was placed there by the written opinions—that

Petitioner has been denied a chance to prove her case

because two judges prejudged the facts.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment of the Court of Appeals. In

addition, it is suggested that a summary reversal on the

papers is appropriate, both because of the nature of the

decision below and because of the fact that it has now

been almost eighteen months since the district court

dismissed the case, suspending pretrial discovery and

retarding its progress.

Respectfully submitted,

MICHAEL E. GELTNER

LEONARD J. SCHWARTZ

American Civil Liberties Union

of Ohio Foundation, Inc.

203 East Broad Street

Columbus, Ohio 43215

Telephone No. 614/422-0925

MELVIN L. WULF

: SANFORD JAY ROSEN

JOEL M. GORA

American Civil Liberties Union

of Ohio Foundation, Inc.

22 East 40th Street

New York, New York 10016

NELSON G. KARL

33 Public Square

Cleveland, Ohio 44113

WALTER S. HAFFNER

1008 Standard Building

Cleveland, Ohio 441 13

December 1972 Attorneys for Petitioner

Nos. 71-1622-23-24

UNITED STATES COURT OF

FOR THE SIXTH CIRCUIT

No. 71-1622

ArTHuR Krause, Administrator of the Estate of

Atuison Krause, deceased

Plaintiff-Appellant,|

James Ruoves, Governor of the State of Ohio,

and

SyLvesTeR Det Corso, Adjutant General of

the Ohio National Guard,

and

Rosert CanTersury, Brigadier General and

Assistant Adjutant General of The Ohio Na-

tional Guard,

Defendants-Appellees.

No. 71-1623

Exams B. Miter, Administratrix of the Estate

of Jerrrey GLENN MILLER, deceased,

Plaintiff-Appellant,

James Ruopes, individually and as Governor

of the State of Ohio, Sy.vester Dex Corso, |

Rosert CanTersury, Harry D. Jongs; JOHN |:

E. Martin, Raymonp J. Srp, ALEXANDER

STEVENSON and Various OFFICERS AND EN-

LISTED MEN, true names presently unknown,

being members of G Company, 107th

Armored Cavalry Regiment and A Com-

pany, First Battalion, 145th Infantry Regi-

ment of the Ohio National Guard, and Ros-

ERT Wr .

APPEALS

2 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

No. 71-1624

SaraH ScHEUER, Administratrix of the

Estate of Sanpra LEE ScHEUER, de-

ceased,

Plaintiff-Appellant,

James Ruopes, Governor of the State

of Ohio,

and

SyLvesteR Dex Corso, Adjutant Gen-

eral of the Ohio National Guard,

and

Rosert CantTenrsury, Assistant Adju-

tant General of the Ohio National

Guard,

and

Harry D. Jones, a Major of the Ohio;

National Guard,

and

Joun E. Martin, and RaymMonp

Srp, Captains of the Ohio National

Guard,

and

Various OFFICERS AND ENLISTED MEN,

members of G Company, 107th

Armored Cavalry Regiment and A

Company, First Battalion, 145th In-

fantry Regiment of the Ohio Na-

tional Guard,

and

Rosert Wurre, President, Kent State

University,

Defendants-Appellees. |

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, etal. 3

Before: Weicx and Ce.esrezze, Circuit Judges, and O’SuL-

LIVAN, Senior Circuit Judge.

Weick, Circuit Judge. The Governor of Ohio called out

the Ohio National Guard to suppress a riot in the City of Kent,

Ohio, and on the campus of Kent State University. Two

proclamations of the Governor with respect thereto are ap-

pended to this opinion. They were attached to motions to

dismiss filed by certain defendants in the District Court.

During the riot each of the plaintiffs’ decedents, who were

students at Kent State University, allegedly were shot and

killed by one of the unnamed and unknown members of the

National Guard. Their personal representatives filed separate

actions in the District Court to recover a total of $11,000,000

— damages against the Governor of Ohio, the Adjutant Gen-

eral, and the Assistant Adjutant General. Two of the suits

named four officers and various unknown and unnamed of-

ficers and enlisted men of the National Guard. The two suits

even named the President of Kent State University as a de-

fendant, in one of which suits it was alleged that he reck-

lessly, wilfully and wantonly omitted to take any action to

control the troops on the campus, or to decrease the risk of

injury to the students, and in the other suit he was charged

with a conspiracy. The suits were brought under the Civil

Rights Act, 42 U.S.C. §§ 1983, 1331, 1334, and also under

the wrongful death statutes of Ohio, on the theory of pendent

jurisdiction.

The complaints alleged generally and in conclusory terms

that the defendants conspired to call out the National Guard

and were guilty of wanton, wilful. and negligent conduct

when they knew or should have known that there was no

cause or insufficient cause therefor; that the troops were not

properly trained in the correct and reasonable use of weapons

to suppress civil disorders; and that the troops were permitted

to be armed with loaded weapons. It is alleged that as a

result the decedents, who allegedly were not participating in

4 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

any way in a riot and were not negligent in any manner, were

shot and killed.

The motions to dismiss were filed by the defendants Rhodes,

Del Corso, Canterbury, Jones, Martin and Srp. These de-

fendants were the only defendants who were served with

process in the cases in the District Court, or who filed mo-

tions in the cases.

The theory of the motions to dismiss was that these suits,

although nominally against the Chief Executive and officers of

the State, in substance and effect were against the State of

Ohio since they directly and vitally affected the rights and

interests of the State in the performance of its highest func-

tion, namely, the suppression of riots or insurrection and the

protection of the public.

It was on this theory and that of executive immunity that

the District Court dismissed the actions and the plaintiffs

have appealed.’ We affirm.

Amendment XI of the Constitution of the United States

provides:

“The Judicial Power of the United States shall not be

construed to extend to any suit in law or equity, com-

menced or prosecuted against one of the United States

by the citizens of another State... .”

1 Plaintiff Krause filed a similar suit against the State of Ohio in

the Court of Common Pleas of Cuyahoga County, Ohio, which was

on the ground of sovereign immunity. On appeal a di-

vided te Court reversed the Common Pleas Court and held

that the State was amenable to suit and that the individual officers

of the State had immunity. Krause v. State, 28 Ohio App.2d 1 (1971).

In so holding the State Appellate Court did not follow a long line

of decisions of the Supreme Court of Ohio, going back as far as

1840, Certiorari was granted by thé ce. gr Court of Ohio, and

on July 19, 1972, the Supreme Court of Ohio reversed the Appellate

Court, and held:

“The State of Ohio is not subicct to suits in tort in the courts

of this state without the consent of he General Assembly.” (Syl.

1) (Krause, Admr., Appellee v. State of Ohio, Appellant, 31

Ohio St.2d 132 (1972) certiorari pending).

In a comers opinion Justice Corrigan sharply criticized the Ap-

pellate Court for flouting the Supreme Court of Ohio opinions. r

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, etal. 5

In Ex Parte New York, 256 U.S. 490 (1921), the Supreme

Court held:

“That a State may not be sued without its consent

is a fundamental rule of jurisprudence having so important

a bearing upon the construction of the Constitution of the

United States that # bax bonus. segbladel cee ie.

peated decisions of this court that the entire judicial

power granted by the Constitution does not embrace

authority to entertain a suit brought by private parties

against a State without consent given; not

citizens of another State, or by citizens or subjects of a

foreign State, because of the Eleventh Amendment; and

not even one brought by its own citizens, because of the

fundamental rule of which the Amendment is but an

exemplification.”

the proceeding, as it appears from the entire record.” Id.

at 500.

The general rule was stated in Dugan v. Rank, 372 U.S.

609 (1963), as follows:

“The general rule is that a suit is against the sovereign

if bre aimapiag sioraiutrscchecxype pase ye

lic treasury or domain, or interfere with the

ministration, Land v. Dollar, 330 U.S. 731, 738 ")

or if the effect of the judgment would be ‘to

the Government from acting, or to compel it to act.’

Larson v. Domestic & Foreign Corp., supra, at 704; Ex

parte New York, 256 U.S. 490, 502 (1921).”

Moyer v. Peabody, 212 U.S. 78 (1909), like the present case,

was an action brought under the Civil Rights Act to re-

cover damages against the former Governor of Colorado, the

former Adjutant General of the National Guard of the same

state, and a Captain of a company of the National Guard,

Jad

6 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

for an imprisonment of plaintiff by them while in office. In

upholding the dismissal of the complaint on demurrer, Justice

Holmes stated:

“In such a situation we must assume that he had a

right under the state constitution and laws to call out

troops, as was held by the Supreme Court of the State.

The constitution is supplemented by an act providing that

‘when an invasion of or insurrection in the State is made

or threatened the Governor shall order the National Guard

to repel or suppress the same.’ Laws of 1897, c. 63,

Art. 7, §2, p. 204. That means that he shall make the

ordinary use of the soldiers to that end; that he may kill

persons who resist and, of course, that he may use the

milder measure of seizing the bodies of those whom he

considers to stand in the way of restoring peace. Such

arrests are not necessarily for punishment, but are by

way of precaution to prevent the exercise of hostile

power. So long as such arrests are made in good faith

and in the honest belief that they are needed in order

to head the insurrection off, the Governor is the final judge

and cannot be subjected to an action after he is out of

office on the ground that he had not reasonable ground for

his belief. If we suppose a Governor with a very long

term of office, it may be that a case could be imagined

in which the length of the imprisonment would raise a

different question. But there is nothing in the duration

of the plaintiffs detention or in the allegations of the.

complaint that would warrant submitting the judgment

of the Governor to revision by a jury. It is not alleged

that his judgment was not honest, if that be material, or

that the plaintiff was detained after fears of the insur-

rection were at an end.” (p. 84-85)

‘le faith icid:

“When it comes to a decision by the head of the State

upon a matter involving its life, the ordinary rights of

individuals must yield to what he deems the necessities of

the moment. Public danger warrants the substitution

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 7.

of executive process for judicial process. See Keely v.

Sanders, 99 U.S. 441, 446. This was admitted with re-

gard to killing men in the actual clash of arms, and we

think it obvious, although it was disputed, that the same

is true of temporary detention to apprehended

harm. As no one would deny that there was immunity

for ordering a company to fire upon a mob in insurrection,

and that a state law authorizing the Governor to deprive

citizens of life under such circumstances was consistent

with the paging merges we are a opinion that

the same is true of a law authorizing by implication

what was done in this case. As we have said already,

it is unnecessary to consider whether there are other rea-

sons why the Circuit Court was right in its conclusion.

It is enough that in our opinion the declaration does not

disclose a ‘suit authorized by law to be brought to redress

the deprivation of any right secured by the Constitution of

the United States.’ See Dow v. Johnson, 100 U.S. 158.”

(Id. at 85-86).

In Sterling v. Constantin, 287 U.S. 378 (1932), Chief Jus-

tice Hughes, in referring to Moyer v. Peabody, supra, stated:

object contemplated.’ The power ‘is to be exercised

upon sudden emergencies, upon great occasions of state,

and under circumstances which may be vital to the ex-

istence of the Union.’ Martin v. Mott, 12 Wheat. 19, 29,

30. Similar effect, for corresponding reasons, is ascribed

to the exercise by the Governor of a State of his discre-

tion in calling out its military forces to suppress insurrec-

tion and disorder. Luther v. Borden, 7 How. 1, 45; Moyer

8 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

v. Peabody, 212 U. S. 78, 83. The nature of the power

also necessarily implies that there is a permitted range

of honest judgment as to the measures to be taken in

meeting force with force, in suppressing violence and

restoring order, for without such liberty to make immedi-

ate decisions, the power itself would be useless. Such

measures, conceived in good faith, in the face of the

emergency and directly related to the quelling of the

disorder or the prevention of its continuance, fall with-

in the discretion of the Executive in the exercise of his

authority to maintain peace. Thus, in Moyer v. Peabody,

supra, the Court sustained the authority of the Governor

to hold in custody temporarily one whom he believed to

be engaged in fomenting disorder, and right of recovery

against the Governor for the imprisonment was denied.

The Court said that, as the Governor ‘may kill persons

who resist,’ he ‘may use the milder measures of seizing

the bodies of those whom he considers to stand in the

way of restoring peace. Such arrests are not necessarily

for punishment, but are by way of precaution to prevent

the exercise of hostile power. So long as such arrests

are made in good faith and in the honest belief that they

are needed in order to head the insurrection off, the Gov-

ernor is the final judge and cannot be subjected to an

action after he is out of office on the ground that he had

not reasonable ground for his belief.’ In that case it ap-

peared that the action of the Governor had direct rela-

tion to the subduing of the insurrection by the temporary

detention of one believed to be a participant, and the

general language of the opinion must be taken in con-

nection with the point actually decided. Cohens v. Vir-

ginia, 6 Wheat. 264, 399; Carroll v. Carroll's Lessee, 16

How. 275, 287; Myers v. United States, 272 U. S. 52,

142.” (Id. at 399-400; emphasis added).

In Gregoire v. Biddle, 177 F.2d 579 (2nd Cir. 1949), which

was an action under the Civil Rights Act for damages against

federal officers for false arrest, Chief Judge Learned Hand

who wrote the opinion for the Court said:

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, etal. 9

“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 con-

nected 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 of-

ficial 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 ex-

posing 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

unredressed the wrongs done by dishonest officers than to

subject those who try to do their duty to the constant

dread of retaliation. Judged as res nova, we should not

hesitate to follow the path laid down in the books.

“The decisions have, indeed, always imposed as a limi-

tation upon the immunity that the official’s act must have

been within the scope of his powers; and it can be argued

that official powers, since they exist only for the public

good, never cover occasions where the public good is

not their aim, and hence that to exercise a power dis-

honestly is necessarily to overstep its bounds. A moment's

reflection shows, however, that that cannot be the mean-

ing of the limitation without defeating the whole doc-

trine. What is meant by saving that the officer must be

10a

‘10 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24 __

In Barr v. Matteo, 360 U.S. 564 (1950), Mr. Justice Harlan,

who wrote the opinion for the Court, stated,

“The reasons for the recognition of the privilege have

been often stated. It has been thought important that

officials of government should be free to exercise their —

governmental

the threat of which might appreciably inhibit the

fearless, ‘vigorous, and effective administration of poli-

cies of government.”

Justice Harlan then-quoted the language of Learned Hand

from Gregoire v. Biddle, hereinbefore set forth, and stated:

“We do not think that the principle announced in Vilas

can properly be restricted to executive officers of cabinet

rank, and in fact it never has been so restricted by the

lower federal courts. The privilege is not a badge or

emolument of exalted office, but an expression of a policy

designed to aid in the effective functioning of govern-

ment. The complexities and magnitude of governmental

activity have become so great that there must of necessity

be a delegation and redelegation of authority as to many

functions, and we cannot say that these functions become

less important simply because they are exercised by of-

ficers of lower rank in the executive hierarchy.” (Foot- ~

notes omitted )

In Tenney v. Brandhove, 341 U.S. 367 (1951), the Court

said in discussing legislative immunity:

71-1622-23-24 Kran, lt Rh we

Bradley v. Fisher, 80 U.S. 335 (1871), and Alzua v. Johnson,

231 U.S. 106 (1913), upheld judicial ‘even though

acts were in excess of jurisdiction and were to have

been done corruptly and maliciously. |

Although occasionally both legislators and judges have been

munity to the Executive Department for the same

that it was extended to legislators and judges. The Execu-

tive Department is charged with the duty of protecting not

only the other two departments of government but also the

general public from domestic as well as foreign enemies.

Such protection is the highest duty the’ Executive Department

is obligated to perform.? It would not be conducive to good

government to require the Chief Executive of either the na-

tion or the state to defend himself in court, in a multitude

2 As well stated by Mr. Justice White, “The most basic function

= Fyn | overnment is to provide ~~ the — of the individual

Pn a erent. v. Arinene, FOR S. 436, 539 (1966),

White, J.

| ‘l2a

12 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

of protracted actions, because he called out troops to sup-

press riots or disorders which resulted in injury. It would

surely take a hardy executive to exercise his discretion by

calling out troops to suppress a riot or insurrection, if he

knew that in so doing the wisdom of his action could later

be challenged in the courts. And since the courts have granted

to themselves absolute immunity, it would seem incongruous

for them not to extend the same privilege to the Executive.

To place a straightjacket on the state's Chief Executive

in times of emergency so that he could not freely exercise his

discretion, would indeed stop the state government “in its

tracks.” Dugan v. Rank, supra, at 621; Larson v. Domestic &

Foreign Corp., 337 U.S. 682 at 704 (1949); Ogletree v. Mc-

Namara, 449 F.2d 93 (6th Cir. 1971).

The suit against the state executives in this case, while

not asking for a money judgment against the state, would

seriously “interfere with public administration”, would “re-

strain the Government from acting”, and would “compel it to

act”. Dugan v. Rank, supra.

Ex Parte Young, 209 U.S. 123 (1908), relied upon by the

appellants is inapposite. It was an action for injunction to

prohibit a state attorney general from enforcing an uncon-

stitutional state statute which fixed confiscatory rates and in-

terfered with interstate commerce. Our case, on the other

hand, is an action for damages and also involves the question

whether the federal courts should interfere with the perform-

ance by the state’s chief executive of his highest duty to sup-

press riots or insurrections and protect the public.

Article III, Section 10 of the Ohio Constitution provides

that the Governor shall be Commander in Chief of the mili-

tary and naval forces of the state except when they are

called into service of the United States. Article IX Section

3 provides that the Governor has power to appoint the adju-

tant general, quartermaster general and other staff officers.

Article IX Section 4 provides that he has the “power to call

13a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 13

forth the military to execute the laws of the state, to suppress

insurrection, and repel invasion.” |

Pertinent provisions of Ohio statutes relating to the militia

are as follows:

Ohio Revised Code, Section 5923.21,

“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 invasion, and shall

be called into service in all cases before the unorganized

militia.”

Ohio Revised Code, Section 5923.22,

“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 com-

mander in chief may issue a call to the commanding of-

ficer 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 militia, shall

refuse to appear at the time and place designated when

lawfully directed to do so in conformity to the laws of

the suppression of tumults, riots, and mobs, or shall fail

to obey an order issued in such case.”

Ohio Revised Code, Section 5823.37 (Supp.),

“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 misconduct.”

Ohio Revised Code, Section 2923.55 (Supp.),

l4a

14 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

“Police officers, special police officers, sheriffs, deputy

sheriffs, highway patrolmen, other law enforcement of-

ficers, members of the organized militia, members of the

armed forces of the United States, and firemen, when

engaged in suppressing a riot or in dispersing or ap-

prehending rioters and after an order to desist and dis-

perse has been issued pursuant to section 2923.51 of the

Revised Code, are guiltless for killing, maiming, or injur-

ing a rioter as a consequence of the use of such force

as is necessary and proper to suppress the riot or disperse

or apprehend rioters. This sectivi: does not relieve a mem-

ber of the organized militia or armed forces of the United

States from prosecution by court-martial for a military

offense.”

Kent State University is a state institution. Ohio Rev.

Code § 3341.01. Its Board of Trustees is appointed by the

governor with the advice and consent of the senate. Ohio

Rev. Code § 3341.02(B).

Ohio has long applied the doctrine of sovereign immunity

not only to suits against the state but also to its agencies and

instrumentalities. Board of Commissioners v. Mighels, 7 Ohio

St. 110 (1857); Palmer v. State, 96° Ohio St. 513 (1917);

Palumbo v. Industrial Commission, 140 Ohio St. 54 (1942);

State ex rel. Williams v. Glander, 148 Ohio St. 188 (1947);

Wolf v. Ohio State University Hospital, 170 Ohio St. 49 (1959).

In Glander, the Court approved and quoted the following

language from American Jurisprudence:

“While a suit against state officials is not necessarily

a suit against the state, within the rule of immunity of

the state from suit without its consent, that rule cannot

be evaded by bringing an action nominally against a state

officer or a state board, commission, or department in

his or its official capacity when the real claim is against

the state itself, and the state is the party vitally inter-

ested. If the rights of the state would be directly and

adversely affected by the judgment or decree sought, the

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, etal. 15

state is a necessary party defendant, and if it cannot

be made a party, that is, if it has not consented to be

sued, the suit is not maintainable. The state’s immunity

from suit without its consent is absolute and unqualified,

and a constitutional provision securing it is not to be

so construed as to place the state within the reach of

the process of the court.”

Glander was approved and followed in Krause v. State, 31

Ohio St.2d 132, 134, 142 (1972) certiorari pending.

In Palmer v. State, 248 U.S. 32 (1918), which grew out of

Palmer v. State, 98 Ohio St. 513 (1917), the Supreme Court

held:

“The right of individuals to sue a State, in either a

federal or state court, cannot be derived from the Con-

stitution or laws of the United States. It can come only

from the consent of the State.”

The State of Ohio has not consented to be sued in either

the state or federal courts.

Lower court cases holding that State universities are not

amenable to suits in tort actions are:

Thacker v. Board of Trustees, 29 Ohio Misc. 33, fol-

lowing Wolf v. Ohio State University Hospital, 170 Ohio

St. 49 (1959); Carolyn v. Youngstown State University,

unreported, 7th Dist. Court of Appeals dismissed by

Supreme Court of the United States, No. 71-569, 40 Law

Wk. 3310.

In Estate of Burks v. Ross, 438 F.2d 230 (6th Cir. 1971),

3 While the Civil Rights Act (§ 1983) was — held to be within

an exception to the anti-injunction statute (28 U.S.C. § 2283) for-

bidding federal courts from issuing injunctions against state courts,

Mitchum v. Foster, 407 U.S. 225 (1972), the Eleventh Amendment

contains no exceptions. We ought not to engraft an exception on

the Amendment by judicial construction.

16 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

we held that an Administrator of a Veterans Hospital and the

institution's psychiatrist had executive immunity.‘

In our judgment, President White had executive immunity.

Relative to the allegations in the complaint that the mem-

bers of the National Guard were permitted to carry loaded

weapons and that they were not properly trained for sup-

pressing civilian riots and disturbances, it is clear that the

judiciary ought not to involve itself in determining military or

political questions. Our expertise does not extend to that

field. We ought not to limit the Governor in the exercise

his discretion to call out the National Guard to suppress

riot or insurrection; neither should we tell the military

not to carry loaded weapons to protect the troops when some-

one may shoot or throw rocks at them.

at teachers, security officers, and a policeman. A meeting

of the Board of Trustees was disrupted. Outside agitators

were on the campus, some of whom were convicted felons, and

4In Martone v. McKeithen, 413 F.2d 1373 (5th Cir. 1969), the

Court, relying on Barr v. Matteo, supra, and Gregoire v. Biddle, supra,

held that the Governor of the state has immunity from damage suits

for acts within the sphere of executive activity; that the members

of the Labor-Management Commission and four hee oe on its

staff had — immunity; and the grand jurors had judicial

eer cials of the Department of Justice also have im-

munity. Norton v. McShane, 332 F.2d 855 (5th Cir. 1964). Allegations

of are not sufficient to prevent the application of executive

immunity. Pierson v. Ray, 386 U.S. 547 (1967), is authority for the

proposi that Section 1983 does not abolish the immunity of public

officers from suit.

17a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 17

the disturbances were promptly quelled. The President of

the student body, joined by the local chapter of the American

Association of College Professors, brought a class action in

behalf of the students and professors against the governor and

the President of the University alleging that their rights of

speech and assembly had been denied them by the presence of

the troops on the campus, and they asked for declaratory

relief determining the impropriety of such actions and an

injunction against further invasion of their asserted rights.

The District Court dismissed the complaint following an evi-

dentiary hearing. We affirmed.

The federal government is inextricably involved with the

states in the training’ and weaponry of the National Guard.

The involvement is stated very well in the dissenting opinion

of Judge Celebrezze in Morgan v. Rhodes, 456 F.2d 608 (6th

Cir. 1972), wherein he said:

“I find a ‘textually demonstrable constitutional commit-

ment’ of National Guard training and weaponry to a

coordinate political department under Article I, Section

8, Clause 16, of the United States Constitution, which

provides that Congress shall have the power

‘To provide for organizing, arming, and disciplin-

ing, the Militia, and for governing such Part of them

as may be employed in the service of the United

States, reserving to the States respectively, the Ap-

pointment of the Officers, and the Authority of train-

ing the Militia according to the discipline prescribed

by Congress.’ .

“Pursuant to this constitutional authority, Congress has

enacted legislation which governs the training and wea-

ponry of the National Guard. 32 U.S.C. §§ 501-07, 701.

Moreover, Congress has expressly provided that

‘The President shall prescribe regulations, and

issue orders, mor to organize, discipline, and

govern the National Guard.’ 32 U.S.C. § 110.

38 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

And under 32 U.S.C. § 108, the President has available

the following means by which to enforce any regulations

which he or the Congress may prescribe for the, National

‘If, within a time to be fixed by the President, a

State does not comply with or enforce a requirement

of, or regulation prescribed under, this title its Na-

et et Pea Coe! pe aga

oO near:

half of the pdm 9 physical i ties’ of the

pe mt of hone stops gr nt Lape pe ae estopped

“This power to prescribe and enforce regulations for

the training and weaponry of the National Guard, which

Congress has delegated in part to the President, is more

than a mere token and unexercised authority. In July

of 1967, when civil disorders had come to the forefront

of national concern, President Johnson announced that he

had ordered the addition of special training courses to the

cally set mandatory riot-control training requirements for

all Army National Guard and certain Air National Guard

units. See Report of the National Advisory Commission

on Civil Disorders, supra, at 505.5

“I believe that the congressional and executive author-

ity to prescribe and regulate the training and weaponry

of the National Guard, as set forth above, clearly pre-

5 Presidents have called out troops to suppress disorders, enforce

orders of the federal courts and even to prevent disorders at political

conventions. It could hardly be maintained that the President of

we cae States is not protected with Executive immunity. (Foot-

note ours.

19a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, etal. 19°

would not involve a serous confict with a

possibility of a court’s undertaking independent reso-

coordinate branches of government; . . . an unusual.

need for unquestioning adherence to a political de-

cision already made; [and] the potentiality of embar-.

rassment from multifarious pronouncements by vari-

ous departments on one question.’ Baker v. Carr,

supra, 369 U.S. at 217. |

Any such relief, whether it prescribed standards of train-

necessarily draw the COE into @ nonjusticiable

question, over which we ve no jurisdiction.”

It would appear that the United States was a necessary

party tothe determination of the issues as it was involved

in the training of the National Guard and their use of weapon-

ry. Failure to join an indispensable party requires dismissal

of the action, Rules 12b and 19, Fed.R.Civ.P. Any decision

rendered by the District Court relative to the training and

weaponry of the Guard would require action to, be taken by

both state and federal governments. To require such action

to be taken is beyond the jurisdiction of the Court. The United

States has not consented to be sued.

It is obvious from a reading of the complaints that the

plaintiffs do not know who fired the shots that resulted in

the deaths of their decedents. In two of the complaints

they have sued “Various Officers and Enlisted Men, true names

National Guard. (Id. at 618, et seq.). If this is true, the suit

should also be against the Federal Government. The United

Nos. 71-1699-89:24. Krone, Aden, ooh v, Rhodes, ta a.

Se |

a .

Toukep'¥: Bodies. Sk¥ US. Ber (1081), Plerson v. Hay,

386' U.S. 547 (1967). See also Bradley v: Fisher, 80 US.

335 (1871); Alzua v. Johnson, 231 U.S. 106 (1913).

Where immunity exists, it cannot be defeuted by allegations.

that the defendant acted maliciously. Gregoire v. Biddle,

177 F.2d 579 (2d Cir. 1949); Tenney v. Brandhove, supra.

We think the dissent incorrectly applies Ohio law. In State —

ex rel Williams v. Glander, 148 Ohio St. 188 (1947), the Su-

preme Court of Ohio made it clear that the common law rule

of immunity cannot be evaded by bringing a suit nominally

against a state officer when the real claim is against the state

itself. Glander was approved by the Supreme Court in Krause

v. State, 31 Ohio St.2d 132 (1972), wherein the Court held

that the state had not waived immunity with respect to the

claim of one of the appellants in these appeals.

Nor do we agree with the dissent’s interpretation of Ohio

Revised Code § 5923.37 (Supp.) which states:

“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 misconduct.”

This statute is in derogation of the common law of the

state and must be strictly construed. Lee Turzillo Contracting

Co. v. Cincinnati Metropolitan Housing Authority, 10 Ohio St.

2d 5 (1967). It must be read in pari materia with Sections

99 Krause, Adms,, et al. v. Rhodes, et al. Nos. 71-1622-23-94

It is also clear that the District Court had no jurisdiction

of the diversity claim of Sarah Scheuer, as she is a resident

of Ohio.

Not one Ohio case is cited in the dissent wherein the Gov-

ernor, the officers or members of the Guard, have been held

liable in a civil action for acts performed in the suppression

of insurrection. They obviously are not responsible for any

dereliction of the Federal Government in the training and

weaponry of the Guard, in which it is inextricably involved;

nor are they liable under Ohio law for negligence.

We ought not to deter the Chief Executives of either the

state or the nation in the unflinching performance of their duty

to protect the public, nor should we make their actions in

this respect in times of emergency, subject to judicial review.

The Civil Rights Act, § 1983, cannot be engrafted on the

Eleventh Amendment by judicial construction.

Affirmed.

Nos. 71-1622-93-24 Krouse, Admr., et al. v. Rhodes, ot al. 23

EXHIBIT I

State of Ohio

Office of the Governor

Columbus

PROCLAMATION

WHEREAS, Pa ei Seg Bie a i

of men acting with intent to commit felony

to person or property in disregard of the laws of the State

of Ohio and the United States of America; and

WHEREAS, said unlawful assemblies and bodies of men

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 coordina-

tion with the Ohio State Highway Patrol and local peace offi-

cers, 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

WHEREAS, 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 freedom of

transportation movement,

24a

24 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

NOW, THEREFORE, I, JAMES A. RHODES, 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 Adjutant General, and

him the commanding officer of any organization of

such militia, is authorized and ordered 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 deter-

mine the objects to be accomplished, leaving the procedure

of execution to the discretion of the commanding military

officer designated by the Adjutant General.

The Adjutant General shall provide all transportation, ser-

vices, and supplies necessary for the militia; and all statutory

advertisement for bids in relation to their

are hereby suspended.

I command all persons engaged in riotous and unlawful

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 revoked.

(SEAL OF OHIO)

IN WITNESS WHEREOF, I have

hereunto subscribed my name and

caused the Great Seal of the State

of Ohio to be affixed at Columbus, this

29th day of April, in the year of our

Lord, one thousand nine hundred and _

seventy.

/S/ James A. Rhodes

Governor

ATTEST:

Ted W. Brown

Secretary of State

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 25

EXHIBIT I

State of Ohio

EXECUTIVE DEPARTMENT

Office of the Governor

Columbus

PROCLAMATION

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

commander-in-chief issued verbal orders to the Adjutant Gen-

eral 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 relating

to wildcat strikes in the truck transportation industry, and

to meet disorders or threatened disorders on campuses of Ohio

State University in Franklin County, and campuses of other

state-assited universities; and

WHEREAS, 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 per-

" sonnel 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 aforementioned,

the Adjutant General of Ohio called to active service 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 restoration of order in the

truck transportation industry; and

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

events and the derivation of authority exercised by personnel

and units of the Ohio National Guard in Portage County and

Franklin County.

26 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

NOW, THEREFORE, I, JAMES A. RHODES, 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 General 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 necessary 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 Gen-

eral.

The active military duty herein further delineated is again

designated as service in time of public danger.

This Proclamation shall continue in force until revoked with

my Proclamation of April 29, 1970.

(SEAL OF OHIO)

IN WITNESS WHEREOF, I have

hereunto subscribed my name and

caused the Great Seal of the State

of Ohio to be affixed at Columbus,

this 5th day of May, in the year of

our Lord, one thousand nine hundred

and seventy.

/S/ James A. Rhodes

Governor

27a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 27

O’Su.uivan, Senior Circuit Judge, concurring. I concur in

the opinion of Judge Weick, but I think it right to say this

much more. The dissenting opinion states:

“The burden upon state officials to defend these suits —

the nonmeritorious as well as the meritorious — is but a

a ee

rights.”

I cannot agree that what is being done in this case — suing

all of the defendants, from the Governor of Ohio to the private

soldiers of the Guard, in their individual capacities — “is but a

small price to pay for the protection of constitutional rights.”

To escape the immunities which protect the state from suit,

plaintiffs here seek to cast heavy burdens upon public of-

ficials and servants to pay out of their own pockets to provide

for their defense for having sought, as their duties commanded,

to protect those endangered by lawlessness.

In this case, we deal again with the ever-widening em-

ployment of Section 1983 for a purpose “not plainly apparent

from its language,”’ as such language was employed by the

Congress when it adopted the Section in 1871 to combat

some of the wrongs of our post-Civil War society. Currently,

however, many courts have provided Section 1983 with new

uses and much popularity — crowding today’s courts with such

volume of claimed causes of action as to seriously impair the

judiciary’s ability to meet its total burden of protecting Ameri-

can society.”

The dissent charges that the majority opinion “constitutes ju-

dicial repeal of an act of Congress.” Certainly neither this Court

nor any other has authority to repeal the Acts of Congress.

Neither have we the right to amend the Acts of Congress

by finding purposes in them outside the obvious Congressional

intention in enacting them.

A *

182 Harvard Law Review 1486 (1969).

2 Younger, State v. Uncle Sam, 58 A.B.A. J. 155 (1972).

28 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

The pleadings in the case before us, except by extravagant

conclusional allegations and some dissembling, strive to avoid

threshold dismissal. The complaints, with apparent deliberate-

ness, omit any mention of what had been taking place on the

campus of Kent State University that occasioned the presence

there of the Ohio National Guard. The dissent asserts that

the Guard was called to active duty on the day of the events

here involved “to protect against violence arising from a wild-

cat strike in the truck transportation industry,”. but fails to

mention that the Governor’s May 5 Proclamation mentioned

that the Guard's activation, by Proclamation of April 29, was

also “to meet disorders or threatened disorders on the campuses

of Ohio State University and campuses of other state-assisted

Universities.”

The pleadings would give the impression that the Ohio

National Guard was on the Kent State campus for no reason

whatever. It is asserted that the Governor’s orders “obvi-

ously do not” have any relationship to the conditions prevail-

ing on the Kent State campus. Thus, the pleaders would leave

it that the Guard had no reason for being at Kent; that the

Governor of Ohio with his soldiers entered upon the peace

and quiet of Kent State campus as invaders, bent on killing

innocent girls and boys.

It is charged that we — the majority — ignore the “wrongful

death actions which are joined with the Section 1983 claims”

because we fail to consider the complaint’s allegations charging

the Governor with “willful and wanton” killing of innocent

young people. This writer does not hesitate to label such

pleadings obvious contrivances to get into court without pre-

tense of fair averment of causes of action.

The complaints, with transparent purpose, omit any men-

tion of what had taken place in the City of Kent and on the

campus of Kent State University. These are some of the

allegations:

“At all times herein mentioned all defendants acted and

conspired under color of statutes, ordinances, regulations,

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 29

customs and usages of the State of Ohio.” (Emphasis

supplied. )

“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 in-

sufficient cause, for sending armed troops at said

time into said place;” (Emphasis supplied. )

“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 * * * in-

cluding Allison Krause, who was wounded by a bullet

fired by a weapon of a national guardsman, * * °.” (Em-

phasis supplied. )

“All acts herein mentioned were done individually and

in conspiracy by these defendants and by other unkaown

persons with the specific intent of depriving plaintiff 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.” (Emphasis supplied. )

The pleaders then go on to ask One Million Dollars com-

pensatory damages and Five Million Dollars punitive damage.

In another of the complaints, the pleaders ask Two Million

Dollars compensatory and Two Million Dollars punitive dam-

ages.

We search in vain for anything in the several plaintiffs’

pleadings to tell us what reason, pretentious or otherwise,

caused the defendant President of Kent State and the Mayor

of the City of Kent to ask the Governor of Ohio to order

the Ohio National Guard to the scene of the tragedies we

deal with here. A fair reading of plaintiffs’ pleadings dis-

30 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

closes an attempt to aver that, without any precedent events

or causes, the Governor of Ohio willfully and wantonly ordered

a company of the Ohio National Guard onto the Kent State

campus, whose officers and men then proceeded deliberately

and without cause to kill the several plaintiffs’ decedents.

The dissembling in plaintiffs’ pleadings in this regard is por-

trayed by this Court’s opinion in Morgan v. Rhodes, 456 F.2d

608. Such suit involved the events of April and May, 1970, on

the campus of Kent State.

“At the outset, this complaint concedes that there was

disorder which had not been terminated by normal ci-

vilian controls and that such disorders were continuing

as of the time the Governor called out the troops. The

complaint says:

‘10. On or about May 1, 1970, there occurred cer-

tain disorders in the area of the Kent campus which

resulted in the imposition of a curfew by the mayor

of Kent. Thereafter, demonstrations and disorders

continued in and about the Kent campus.” 456

F.2d at p. 610.

I believe also that what had been going on at Kent State

and its environs preceding the tragic deaths of these young

people is so widely. and publicly known across the nation that

this Court may take judicial notice of such events. 8 Cyc.

Fed. Proc. § 26.226 (3rd ed. 1968). The pleadings make no

mention of the burning down of the ROTC Building on

the campus of the University and the continued threats to

persons and property — all a part of a state of insurrection

that preceded and continued up to the very instant of the

tragedy with which we deal. None of these things are even

alluded to in the pleadings. For the Governor of Ohio to

have refused to send the National Guard to the scene of these

events and for the Guard and its men to have refused to deal

with the situation confronting them, would have been dere-

liction of duty.

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et

The pleadings presented to the District Judge were clearly

contrived to hide rather than disclose the true background of

the involved events — an attempt to predicate causes

action without disclosing their true subject matter. All

the foregoing confirms my belief that the pleadings do

disclose causes of action under Section 1983, and that this

not a case in which to fashion new rules to strike down tra-

ditional immunities.

32 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

CeLEsrezzeE, Circuit Judge, dissenting. With due respect

for my Brothers of the majority, I am unable to concur in

their opinion or the result reached thereunder.

The majority concludes that the present suits are “in suh-

stance and effect actions against the State of Ohio” within

the prohibition of the Eleventh Amendment. As discussed

in Part II of this dissent, however, I find no authority to sup-

port such an extension of the Amendment, nor do I under-

stand the majority's disregard for the Supreme Court's ruling

in Ex parte Young, 209 U.S. 123 (1908). Indeed, the ma-

jority’s ad hoc application of the Eleventh Amendment would

appear to bar all suits under 42 U.S.C. § 1983, with its re-

quirement that defendants thereunder be shown to have

acted under color of state law.

The majority concludes that the present suits are also barred

by the common law doctrine of executive immunity. The

majority is totally oblivious to the fact, as discussed in Part III

of this dissent, that this conclusion in effect constitutes ju-

dicial repeal of an act of Congress in deference to a common

law rule which emerged after the enactment of Section 1983.

The majority reads Moyer v. Peabody, 212 U.S. 78 (1909), as

giving a governor and National Guardsmen total immunity

from any form of judicial review of their actions. As discussed

in Part IV of this dissent, the majority thus ignores not only

the good faith requirement which was established by stipula-

tion in the Moyer decision, but also the holding of Sterling

v. Constantin, 287 U.S. 378 (1932), that the courts can and

must review allegations that the actions of a governor and

National Guardsmen have exceeded the range of permitted,

discretionary conduct justified by the exigencies of the situa-

tion.

The majority totally ignores the wrongful death actions

which are joined with the Section 1983 claims in each of the

complaints. As discussed in Part V of this dissent, the wrong-

ful death actions in the Krause and Miller complaints are

asserted under original, diversity jurisdiction — rather than

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes,et al. 33

pendent jurisdiction, to which the majority makes a passing

reference — requiring that these actions be disposed of under

the applicable Ohio common law and statutes. While it quotes

one of these statutes, O.R.C. § 5823.27, in full, the majority

fails to. consider the fact that the present complaints specifically

allege willful and wanton misconduct within the exception

to the immunity granted under that statute.

Apart from these aspects of the majority opinion-which I

will discuss at some length in the remaining portions of this

dissent, the majority has failed to recognize the status of

these suits and the precedential effects of their ill-advised pro-

nouncements. These suits were dismissed for lack of jur-

isdiction without an answer to the complaints and without

any evidence having been introduced by either party — save

two proclamations issued by Defendant-Appellee Governor

Rhodes, the first of which orders Ohio National Guardsmen

to active duty tu protect against violence arising from a wild-

cat strike in the truck transportation industry and the second

of which was issued one day after the date of the deaths

for which recovery is sought in the present suits. Even if these

proclamations served as evidence of the conditions which

prevailed on the Kent State Campus when the deaths oc-

curred — which they obviously do not — they could not stand

as conclusive proof of necessity in view of the Supreme Court's

discussion in Sterling v. Constantin, 287 U.S. 378, 402-03

(1932). The majority opinion is nonetheless framed under

the assumption that the violence and riotous conditions which,

according to the media, may have prevailed on the Kent State

Campus, have been established as proven facts for purposes of

the present suits.

The shallowness of the majority's reasoning is illustrated in

part by their reliance on this Court’s decisions in Bright v.

Nunn, 448 F.2d 245 (6th Cir. 1971), and Morgan v. Rhodes,

456 F.2d 608 (6th Cir. 1972), cert. granted sub nom., Gilligan

v. Morgan, No. 71-1553, 41 U.S.L.W. 3221 (U.S. Oct. 24, 1972)

(in which I dissented because no injunctive relief or de-

34 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

claratory judgment could have been granted), undaunted

by the fact that those suits were against defendants

comparable to those named in the present cases yet jurisdiction

over the Bright and Morgan suits was in no way precluded by

either the Eleventh Amendment or the common law doctrine

of executive immunity.

No less than my Brothers of the majority, I recognize the

considerations which weigh against judicial review of the

conduct of state officials and National Guardsmen in the face

of civil disorders and sudden emergencies — when the latter

conditions are proven. Unlike the majority, I believe that

these considerations can be given appropriate weight without

totally barring judicial review of possibly unwarranted depriva-

tions of constitutional rights — particularly when the majority

can sustain its position only by resorting to an unsupportable

extension of the Eleventh Amendment and an impermissible

application of the common law doctrine of executive immuni-

ty. As discussed in Part IV of this dissent, the Supreme Court’s

opinion in Sterling v. Constantin, 287 U.S. 378 (1932), estab-

lishes workable guidelines for judicial review in this area which

neither permit the courts to substitute their retrospective

judgment for that of state officials acting in good faith in

the face of an emergency nor require that the courts totally

close their doors to claimed deprivations of constitutional rights

when it is asserted that state action exceeded the limits of

discretionary conduct justified under the circumstances.

I believe that the errors of the majority become self-evident

from the following review of the suits and discussion of the

issues raised by the rulings of the District Court and the ma-

jority opinion herein.

These are appeals from the District Court’s dismissal of

three suits for damages under 42 U.S.C. § 1983. Each of the

complaints also asserts a state law claim for wrongful death.

Because the appeals involve the same questions of law, they

_ Cis

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 35

were heard as companion cases under Rule 7(b) of this

Court.

The suits were brought by the representatives of the estates

of Allison Krause, Jeffrey Glenn Miller, and Sandra Lee

Scheuer, who died as a result of gunshot wounds allegedly

inflicted by members of the Ohio National Guard on the Kent

State University Campus on May 4, 1970. The complaints,

which were filed separately during the months of July through

September, 1970, each named James Rhodes, Governor of the

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

Ohio National Guard, and Robert Canterbury, Assistant Adju-

tant General of the Ohio National Guard, as defendants. The

Miller and Scheuer complaints also named as defendants Harry

D. Jones, a major in the Ohio National Guard, John E. Martin

and Raymond J. Srp., captains in the Ohio National Guard, var-

ious unnamed officers and enlisted men of the Ohio National

Guard, and Robert White, President of Kent State University. —

The Miller complaint alone named Alexander Stevenson, a

member of the Ohio National Guard, as an additional de-

fendant.

The complaints assert that the decedents, Allison Krause,

Jeffrey Glenn Miller, and Sandra Lee Scheuer, were enrolled

as students at Kent State University in May 1970 and that

none of the decedents was engaged in any riotous, violent, or

provocative conduct at the time the fatal wounds were in-

flicted on May 4, 1970.

Although .the defendants named in the three complaints

are not identical and the allegations contained in the com-

plaints vary somewhat as to the specific conduct challenged,

those allegations can be generally summarized as follows: (1)

Governor Rlddes intentionally, willfully, wantonly and reck-

lessly ordered Ohio National Guard troops to duty on the

Kent State campus when such action was unnecessary; per-

mitted the troops to carry loaded weapons, thus increasing

the risk that innocent persons would be*injured and killed;

permitted the troops to shoot at persons without justification;

36 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

and ordered the troops to break up all assemblies, whether

lawful or unlawful; (2) Adjutant General Del Corso and

Assistant Adjutant General Canterbury intentionally, willfully,

wantonly and recklessly caused and ordered inadequately

trained and incapable Ohio National Guard troops to carry

loaded weapons, thus increasing the risk of shooting innocent

persons; to shoot at persons without legal justification; and to

engage in actions which increased the risk of injury and death

to persons on and near the Kent State campus; (3) Major

Jones and Captains Martin and Srp intentionally, willfully,

wantonly and recklessiy caused and ordered Ohio National

Guard troops to shoot at and in the direction of persons with-

out legal justification and to engage in actions which increased

the risk of injury and death to persons on or near the Kent

State campus; or, alternatively, these defendants intentionally,

willfully, wantonly and recklessly failed to restrain the troops

under their command from shooting and causing others to

shoot, without legal justification, at and in the direction of

persons on and near the Kent State campus; (4) the un-

named Ohio National Guard members willfully, wantonly and

recklessly shot at and in the direction of persons on the Kent

State campus without legal justification and caused others to

do so; or, alternatively, if these unnamed Guardsmen were

ordered to shoot their weapons, such orders were patently un-

lawful and did not legally justify such shooting; (5) President

White intentionally, willfully, wantonly and recklessly failed to

take any actions to control the Ohio National Guard activities

on the Kent State campus or to decrease the risk of injury

and death when such actions could have decreased that risk.

It is further asserted that the conduct of the Defendants-

Appellees, as set forth above, was undertaken individually and

in concert under color of state law, in deprivation of the

decedents’ rights to due process and equal protection, and

that Plaintiffs-Appellants are therefore entitled to compensatory

and punitive damages under 42 U.S.C. § 1983. The same

conduct of Defendants-Appellees is asserted as the basis for

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 37

compensatory and punitive damages under the state wrongful

death claims.

In a single Memorandum and Order, the District Court

granted Defendants-Appellees’ motions to dismiss the three

suits under Rule 12(b)(1), F.R.C.P., for lack of subject matter

jurisdiction. The District Court made the following findings

and conclusions in support of its dismissal:

“The Eleventh Amendment to the United States Con-

stitution prohibits this court from exercising jurisdiction

in this case and this court so finds.

“All defendants, including President White, are sued

in their official capacities and sovereign immunity so ex-

tends.”

The federal claim in each of the three complaints is asserted

under 42 U.S.C. § 1983, which provides as follows:

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Terri-

tory, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.” (Em-

phasis added. )

Acknowledging that the complaints asserted claims against

the individual defendants under Section 1983, the District

Court nonetheless ruled that because each of the several de-

fendants was being sued in his representative capacity as a

public or military official and/or an agent of the sovereign

State of Ohio, the suits were “essentially against the State

of Ohio.” The State of Ohio having failed to consent to

such actions against it, the District Court concluded that the

suits are barred by the Eleventh Amendment. This conclusion

and the majority's endorsement of it are in direct conflict

with the applicable case law.

38 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court

was faced with contentions, similar to those of Defendants-

Appellees here, that a suit in federal court against a state

official was in essence a suit against the state, which was

barred by the Eleventh Amendment. There a federal Circuit

Court had enjoined the Attorney General of the State of

Minnesota from instituting any action or proceeding to compel

obedience to, or compliance with, a Minnesota statute or to

enforce the remedies and penalties thereunder, ‘pending the

Court’s ruling on the constitutionality of the statute. The

Supreme Court ruled that the Eleventh Amendment did not

bar the Circuit Court’s injynction against the state attorney

general, notwithstanding the fact that he was sued in his

capacity as a state official:

“If the act which the state Attorney General secks to

enforce be a violation of the Federal Constitution, the

officer in proceeding under such enactment comes into

conflict with the superior authority of that Constitution,

and he is in that case stripped of his official or representa-

tive character and is subjected in his person to the con-

sequences of his individual conduct. The State has no

power to impart to him any immunity from responsibility

to the supreme authority of the United States.” 209 U.S.

at 159-60.

Through its decision in Ex parte Young, the Supreme Court

resolved what might otherwise have stood as a conflict between

the Eleventh Amendment and suits in a federal court by citi-

zens seeking to vindicate their rights under the Fourteenth

Amendment. As was recently noted by Mr. Justice Brennan,

the Young decision — coupled with what are now 42 U.S.C.

§ 1983 and 28 U.S.C. §§ 1343(3), 1331 — firmly established

the federal courts as the primary guardians against state

interference with constitutional rights:

“Ex parte Young was the culmination of efforts by

this Court to harmonize the principles of the Eleventh

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 30

17 Stat. 13, which in § 1 empowered federal courts

to adjudicate the constitutionality of actions of any -

son taken under color of state statute, ordinance, regu

tion, custom, or usage, see 42 U.S.C. § 1983, 28 ord

§ 1343(3), and the Judiciary Act of 1875, 18 Stat. 470,

which gave lower federal courts .

jurisdiction, see 28 U.S.C. § 1331. These two statutes, to-

gether, after 1908, with the decision in Ex parte Young,

established the modern framework for federal protec-

tion of constitutional rights from state interference. og

framework has been strengthened and expanded by su

quent acts of Congress and subsequent decisions of he

Court.” Perez v. Ledesma, 401 U.S. 82, 106-07 (1971)

(Brennan, J., concurring in part, dissenting in part).

The District Court’s determination that the present suits

under Section 1983 are barred by the Eleventh Amendment

cannot be upheld in the face of the Supreme Court’s decision

in Ex parte Young. No less than the suits for injunctive re-

lief which were before the Circuit Court in Young, the present

actions under Section 1983 seek redress of asserted infringe-

ments of constitutional rights by state officials. To hold that

the present suits against state officials under Section 1983

are barred by the Eleventh Amendment would in effect overrule

the Supreme Court’s holding in Ex parte Young and destroy

Section 1983 as a tool by which federal courts are to guard

against state interference with constitutional rights.

In its opinion in Ex Parte Young, supra, 209 U.S. at 150-52

the Supreme Court reviewed the scope of the Eleventh Amend-

ment as it had then been construed. Clearly a citizen's suit

40 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

iu which a state is a named party cannot be entertained by

a federal court. See Osborn v. United States Bank, 9 Wheat.

738, 846, 857 (1824). Nor may a federal court hear a suit

by a citizen against a governor or other state officer, in his

official capacity, for moneys in the state treasury, Governor

of Georgia v. Madrazo, 1 Pet. 110, 122, 123 (1828). Anda

citizen’s suit against state officials, where the relief sought

would require the state’s specific performance of a contract,

is likewise barred by the Eleventh Amendment in the absence

of the state’s consent. Hagood v. Southern, 117 U.S. 52, 67

(1886); In re Ayers, 123 U.S. 443 (1887).

The cases relied upon by the District Court in support of its

conclusion that the present suits are barred by the Eleventh

Amendment clearly fall within the above categories. The

District Court based its ruling on the following cases: Missouri

v. Fiske, 290 U.S. 18 (1933) (ancillary and supplemental bill

seeking an injunction against a state, in its own name, re-

straining it from’ prosecuting proceedings in a state court);

Ford Motor Co. vy. Department of Treasury of Indiana, 323

U.S. 459 (1945) (suit against a state agency for the refund

of taxes from the state treasury); Great Northern Ins. Co.

v. Read, 322 U.S. 47 (1944) (suit against a state insurance

commissioner to recover taxes from the state treasury); Louisi-

ana v. Jumel, 107 U.S. 711 (1882) (suit against state officials

to require specific performance of contracts with the state and

appropriation of state treasury funds); Parden v. Terminal

Railway Co., 377 U.S. 184 (1964) (FELA suit against a state

agency for damages to be paid from the state treasury; state’s

operation of an interstate railway constituted consent to such

a suit.)' Likewise, Ex parte New York, 256 U.S. 490 (1921)

— the only Eleventh Amendment case cited as support for

' The District Court also cited Fitts v. McGhee, 172 U.S. 516 (1899),

in support of its application of the Eleventh Amendment. As noted

by the Supreme Court in Ex parte Young, supra, 209 U.S. at 156-57,

however, the Fitts decision rested upon the plaintiff’s invalid attempt

to test the constitutionality of a state statute by naming as defen-

dants state officials who had no power to orce the statute in

question.

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 41

the majority's holding — involved an attempt to join the New

York Superintendent of Public Works as a defendant in three

admiralty suits, under which any judgment would be satis-

fied out of the property or treasury of the State.

In several of these cases the Supreme Court expressly ac-

knowledged that it was not faced with a suit against a state

official under his personal liability for his wrongful acts:

“The ancillary and supplemental bill .is brought by

the respondents directly against the State of Missouri. It

is not a proceeding within the principle that suit may be

brought. against state officers to restrain an attempt to

enforce an unconstitutional enactment. That principle

is that the exemption of States from suit does not protect

their officers from personal liability to those whose rights

they have wrongfully invaded.” Missouri v. Fiske, supra,

290 U.S, at 26.

“In such cases [where relief is sought under general

law from the wrongful acts of officials] the immunity of

the sovereign does not extend to wrongful individual ac-

tion and the citizen is allowed a remedy against the

wrongdoer personally.” Great Northern Insurance Co. v.

Read, supra, 322 U.S. at 51.

“Where relief is sought under general law from wrong-

ful acts of state officials, the sovereign’s immunity under

the Eleventh Amendment does not extend to wrongful

individual action, and the citizen is allowed a remedy

against the wrongdoer personally.” Ford Motor Co. v.

Department of Treasury of Indiana, supra, 323 U.S. at

462.

The present actions under Section 1983 are.not against the

State of Ohio as a named defendant; they do not seek money

damages from the State’s treasury; nor would the requested

relief, if granted, require specific performance of a contract

by the State. Rather, these actions are brought against the

named defendants, as individuals, under their personal lia-

bility for conduct which allegedly deprived Plaintiffs-Appel-

lants’ decedents of their constitutional rights. The suits are

42 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

of the type which the Supreme Court was careful to exclude

from the Eleventh Amendment's prohibition in the cases dis-

cussed above and in its landmark decision in Ex parte Young.

Summarily dismissing the Supreme Court’s decision in Ex

parte Young as “inapposite” and ignoring the scope ascribed

to the Eleventh Amendment by the above cases, the majority

holds that the “nature and effect” of the present suits bring

them within that Amendment's prohibition. The majority fails

to consider that a comparable “nature and effect” is a pre-

requisite for any suit under Section 1983, with its requirement

that defendants thereunder be shown to have acted under

color of state law. Any question of Section 1983's constitu-

tionality which thus emerges from the majority’s approach, is

averted by the fact that Section 1983 provides for redress

against persons under their personal liability, and suits there-

under are theretofore not within the established scope of the

Eleventh Amendment. See Sostre v. McGinnis, 442 F.2d 178,

205 (2d Cir. 1971).

III.

The District Court apparently based its dismissal of these

suits solely on their asserted conflict with the Eleventh Amend-

ment. Several of the cases cited by the District Court, how-

ever, dealt with the personal immunity of public officials

rather than the Eleventh Amendment or sovereign immunity.

Whereas the District Court may thus have merely confused

the concepts of personal immunity and sovereign immunity

as the latter is incorporated in the Eleventh Amendment, the

majority expressly holds that the present suits are barred

not only by the Eleventh Amendment but also by the common

law doctrine of executive immunity.

Section 1983 contains no provision which can be construed

as establishing immunity for any defendants thereunder.?

2 The question of whether common law immunities are ete

to suits under Section 1983 is, of course, governed by federal or

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 43

As was observed by the Court of Appeals for the Second

Circuit in Jobson v. Henne, 355 F.2d 129, 133 (2d Cir. 1966):

“The Civil Rights Acts in general, and § 1983 in par-

ticular, are cast in terms so broad as to suggest that in

suits brought under these sections common law doctrines

of immunity can never be a bar.”

Reflecting upon the common law immunities which were

firmly established prior to the enactment of Section 1983,

however, the Supreme Court has imparted immunity to two

specific classes of public officials who might otherwise be

liable under this statute for their official acts. In Tenney v.

Brandhove, 341 U.S. 367 (1951), the Supreme Court held

that “[t]he privilege of legislators to be free from arrest or

civil process for what they do or say in legislative proceed-

ings,” with its “taproots in the parliamentary struggles of

the Sixteenth and Seventeenth Centuries,” was not abridged

by the Civil Rights Act of 1871. 341 U.S. at 372. Therefore,

members of a senate committee of the California Legislature

were held to be immune from suit under 8 U.S.C. §§ 43 and

47(3) [now 42 U.S.C. §§ 1983 and 1985(3)]. And in Pierson

v. Ray, 386 U.S. 547 (1967), the Supreme Court held that Sec-

tion 1983 did not abrogate the well established common law

doctrine of “immunity of judges from liability for damages for

acts committed within their judicial jurisdiction.” 386 U.S. at

554,

Beyond the immunity for legislators and judges which the

Supreme Court has expressly recognized under Section 1983,

there exists no authority for lower federal courts to further

restrict the statute by applying common law notions of execu-

tive immunity to suits brought thereunder. The common law

general common law rather than state law. Nelson v. Knox, 256

F.2d 312, 314 (6th Cir. 1958). In contrast to Part V of this dissent,

which deals with the state law wrongful death actions, the present

discussion does not require that we look to the common law and

y wcnan ted immunities which Ohio might afford to Defendants-

ppellees.

44 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

doctrine of executive immunity is at odds with the purpose or,

more accurately, the very existence of Section 1983 as a

remedy against deprivations of constitutional rights. In hold-

ing that the doctrines of legislative and judicial immunity

are applicable to suits under Section 1983, the Supreme Court

emphasized that these common law doctrines were firmly

established in England and this country when Congress en-

acted the Civil Rights Act of 1871. The Supreme Court

therefore reasoned that Congress would not have intended

to abrogate these immunities under Section 1983 without ex-

pressly so providing:

“We cannot believe that Congress — itself a staunch

advocate of legislative freedom — would impinge on a

tradition so well grounded in history and reason by covert

inclusion in the general language before us.” Tenney

v. Brandhove, supra, 341 U.S. at 376.

“The immunity of judges for acts within the judicial role

is equally well established, and we presume that Con-

gress would have specifically so provided had it wished

to abolish the doctrine.” Pierson v. Ray, 386 U.S. at

554-55.

The docirine of executive immunity is not so well estab-

lished, having been recognized in neither England nor this

Country until some 20 years after the enactment of Section

1983. See Barr v. Matteo, 360 U.S. 564, 581-82 (1959) (War-

ren, C.!., dissenting). It therefore cannot be assumed that

Congress intended this doctrine to apply to suits under Section

1983.

Another compelling reason for not applying a doctrine of ex-

ecutive immunity in suits under Section 1983 lies in the simple

fact that such a docirine, if added to the legislative and

judicial immunity presently recognized under the. statute,

would totally circumscribe the remedy provided in Section

1983. It is difficult to envision what, if any, remedy would

remain under Section 1983 if, in addition to those persons who

45a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 45

can bring themselves under legislative or judicial immunity,

the broad class of persons who might be characterized as

state executive officials is also immune from suit under the

statute. Whereas Congress may have intended that the doc-

trines of legislative and judicial immunity would apply to

suits under Section 1983, I assume that Congress did not

intend that the remedy under the statute would be so thorough-

ly frustrated, or in effect nullified, by the additional common

law doctrine of executive immunity. The rule that statutes

in derogation of the common law must be narrowly con-

strued certainly does not require, nor authorize, courts to ap-

ply a common law doctrine which totally undercuts the statute

— particularly when that common law doctrine was not yet

recognized when the statute was enacted.

The majority relies on the case of Martone v. McKeithen,

413 F.2d 1373 (5th Cir. 1969), and the cases cited therein, in

support of its conclusion that the present suits are barred by

the doctrine of executive immunity. In Martone the Court

of Appeals held that the Governor of Louisiana was immune

from a damage suit® under Section 1983 for acts within the

sphere of his executive activity. By substituting “the immuni-

ty of public officers from suit” within the following discussion

3 Significantly, the Martone Court remanded the case for further

proceedings on the appellant’s claim for injunctive relief against

all defendants. That Court was thus of the view that tne immunities

which it broadly applied barred only suits for damages under Section

1983. In Nelson v. Knox, 256 F.2d 312, 314-15 (6th Cir. 1956), this

Court expressly rejected such a dicotomy between injunctive relief

and damages with respect to immunity under Section 1983:

“To be sure, the present action is one for money damages

rather than an injunction, but that difference‘does not affect the

question of immunity. Indeed, the Supreme Court has pointed

out that under the Civil Rights Act relief in equity should

sometimes-be withheld even where ‘comparable facts would cre-

ate a cause of action for damages.’ Stefanelli v. Minard, 1951,

342 U.S. 117, at page 122, 72 S.Ct. 118, 121, 96 L.Ed. 138; see

Williams v. Dalton, 6 Cir., 1956, 231 F.2d 646, 649: Cobb v. City

cr aaa 1 Cir., 1953, 202 F.2d 701, 704-705.” 256 F.2d at

Compare Giles v. Harris, 189 U.S. 475 (1903), with Lane v. Wilson,

307 Us. 268 (1939). Cf. Sterling v. Constantin. 287 U.S .378, 403

46 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

of judicial immunity in Pierson v. Ray, 386 U.S. at 554, the

Martone court cited that decision as support for applying

a broad rule of official immunity under Section 1983:

““We do not believe that this settled principle of [the

immunity of public officers from suit] was abolished

by § 1983, which makes liable “every person” who under

color of law deprives another person of his civil rights.

The legislative record gives no clear indication that Con-

gress meant to abolish wholesale all common-law immuni-

ties.” 413 F.2d at 1375.

As discussed above, such a distorted reading of Pierson v.

Ray would result in a wholesale abolition of the remedy pre-

scribed under Section 1983.

In support of its holding that the Governor was immune

from a damage suit under Section 1983, the Martone Court

cited Barr v. Matteo, 360 U.S. 564 (1959), Gregoire v. Biddle,

177 F.2d 579 (2d Cir. 1949), and Norton v. McShane, 332

F.2d 855 (5th Cir. 1964) — cases upon which the majority

herein similarly relies in support of their conclusion that De-

fendants-Appellees are clothed with executive immunity.

In Barr v. Matteo, the Supreme Court held that the Acting

Director of the Office of Rent Stabilization was protected by

an absolute immunity from a civil action for libe] arising from

his issuance of an official press release. The suit was not

brought under Section 1983, no deprivation of constitutional

rights was asserted, nor was the defendant a person acting un-

der color of state law. The decision therefore cannot be said

to support the application of a doctrine of executive immuni-

ty in suits against state officials under Section 1983.

Gregoire v. Biddle involved a damage suit under what are

now Sections 1983 and 1985, 42 U.S.C., as well as common

law, against federal officials for false arrest. Holding that all

defendants had absolute immunity, the District Court had

dismissed the suit. The Court of Appeals affirmed the dis-

missal of the Section 1983 claim because none of the defen-

47a

Nes

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 47

dants had acted “under color of’ state law — not because

absolute immunity was applicable to suits under the statute4

177 F.2d at 581-82. Moreover, the Court of Appeals’ broad

language upholding the absolute immunity of the federal de-

fendants under the common law claims has been modified

by the recent ruling in Bivens v. Six Unknown Named Agents

of the F.B.I., 456 F.2d 1339 (2d Cir. 1972), wherein the same

Court held that F.B.I. agents were not immune from damage

suits for their allegedly unreasonable search and arrest with-

out probable cause.

In Norton v. McShane the plaintiffs similarly sought dam-

ages under 42 U.S.C. §§ 1983 and 1985(3) and common law

from certain federal officials, including a deputy United States

Marshal and his supervisors for their allegedly unlawful ar-

rests. Applying the absolute immunity of federal officials act-

ing within the scope of their authority, as prescribed in Barr

v. Matteo and Gregoire v. Biddle, supra, the Court of Appeals

affirmed the lower Court’s dismissal of the common law ac-

tions. As in Gregoire v. Biddle, however, the dismissal of the

action under Section 1983 was affirmed because none of the

defendants had acted “under color of” state law. The ques-

tion of official or executive immunity under Section 1983 there-

fore was not before the Court. The Court did suggest in dic-

tum, however, that the doctrine of official immunity “may be

given more limited application in those suits [under Section

1983] than it has been given at common law.” 332 F.2d at 861.

Thus, none of the decisions cited by the Court in Martone

v. McKeithen and relied on by the majority herein ruled

upon the applicability of official or executive immunity to

suits under Section 1983. Indeed, the same Court's opinion

in Norton v. McShane, supra, recognized in dictum that the

doctrine of official immunity, as applied at common law, may

be given more limited application in suits under Section

1983. 332 F.2d at 861.

4 The Gregoire Court did allude to Pickering v. Pennsylvania R.R.

Co., 151 F.2d 240 (3d Cir. 1945), holding that absolute official immunity

48 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

Moreover, the Court of Appeals for the Fifth Circuit (which

rendered both the Martone and Norton decisions, supra) has

recently ruled in Roberts v. Williams, 456 F.2d 819 (5th Cir. )

cert. denied, 404 U.S. 866 (1971), that the absolute immunity

which has been afforded to federal and state officials under

common law is not applicable in suits against state officials

under Section 1983. 456 F.2d at 830-31. There a 14-year old

inmate of a Mississippi county prison farm sued the superin-

tendent of the farm and the individual members of the county

board of supervisors under Section 1983 and common law,

seeking damages for a shotgun wound inflicted by a “patently

incompetent” trusty guard at the farm. The District Court

had dismissed the complaint with respect to the members of

the board of supervisors, holding that they were immune

from suit under both the Section 1983 and common law

claims.’ While it affirmed the District Court’s determination

that the board members were immune from the common law

actions, the Court of Appeals rejected the application of com-

mon law immunity to the claim under Section 1983. Sig-

nificantly, the Roberts Court acknowledged that absolute com-

mon law immunity has been recognized for federal officials

[citing Barr v. Matteo and Norton v. McShane, supra], but

it ruled that such immunity cannot operate to bar suits against

state and local officials (other than judges and legislators)

under Section 1983. Id. See also Alexander v. Nosser, 438

does not apply to actions under Section 1983, but found it un-

necessary to consider this point. 177 F.2d at 581-82.

5 The District Court had found the superintendent of the county

farm liable in damages under both Section 1983 and state common

law. 302 F.Supp. 972 (N.D. Miss. 1969). On appeal, the superin-

tendent. simply challenged the sufficiency of the evidence to support

this judgment, and he did not assert that either action was barred

by his official immunity. The Court of Appeals affirmed the judg-

ment against him under both the federal and common law claims.

6 The Court of Appeals did ultimately affirm the dismissal of the

Section 1983 action against the board members because no breach

of duty or nonfeasance on their part had a causal relation to the

plaintiff’s injuries — but not because the board members were im-

mune from suit.

49a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 49

F.2d 183, 200-02 (5th Cir. 1971), modified on other grounds,

456 F.2d 835 (en banc) (police chief, fire chief, and prison

warden had no common law official immunity under Section

1983); Carter v. Carlson, 447 F.2d 358, 365 (D.C. Cir. 1971)

cert. granted sub nom. District of Columbia v. Carter, 404

U.S. 1014 (1972) (rejecting common law official immunity

as a bar to suits under Section 1983 against a police captain

and a police chief); McLaughlin v. Tilendis, 398 F.2d 287,

290 (7th Cir. 1971) (superintendent of schools and elected

members of school board were not protected by common law,

official immunity in a damage suit under Section 1983);

Sostre v. McGinnis, 442 F.2d 178, 205 n.51 (2d Cir.- 1971)

(state administrative officials were not entitled to immunity

from damage judgment which has been extended to judges and

legislators under Section 1983).

I likewise conclude that the common law doctrines of execu-

tive and official immunity, as recognized in Barr v. Matteo

and Gregoire v. Biddle, supra, are inapplicable in suits against

state officials under Section 1983. This is the only result which

averts judicial repeal of the remedy which Congress has ex-

pressly provided under that statute — a statutory remedy which

the Barr v. Matteo and Gregoire v. Biddle courts did not have

to consider when they gave recognition to their respective

rules of common law, personal immunity.

In reaching this conclusion I am not unmindful of the

policy considerations which support the recognition of a gen-

eral rule of official immunity outside the context of suits under

Section 1983. This policy was set forth by Judge Learned

Hand in Gregoire v. Biddle, supra, 177 F 2d at 581, discussing

the absolute immunity of federal officials.”

“The justification for [granting absolute immunity to -{

federal executives] is that it is impossible to know whether

7 But see Bivens v. Six Unknown Named Agents of the F.B.1., 456

F.2d 1339 (2d Cir. 1972) where the same Court of Appeals re-

fused to recognize the immunity of F.B.I. agents from damage suits

for their allegedly unreasonable search and unlawful arrest.

50 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

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 un-

flinching 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.” 177 F.2d at 581.

See also Barr v. Matteo, supra, 360 U.S. at 571; Norton v.

McShane, supra, 332 F.2d at 857-59.

However compelling such considerations may be in the

context of common law suits against federal or state officials,

they cannot override the remedy against state officials which

Congress has expressly provided in Section 1983. That statute

is one of the tools with which Congress chose to make federal

courts the primary guardians against state interference with

constitutional rights. See Perez v. Ledesma, 401 U.S. 82, 106-07

(1971) (Brennan, J., concurring in part, dissenting in part).

I find no countervailing legislation through which Congress

— by adopting court-made rules of personal immunity — has

chosen to protect state officials from burdensome suits or to

insure their freedom from inhibitions in executing their of-

ficial duties.

Moreover, the policy considerations set forth in Gregoire v.

Biddle, as quoted above, relate to the need to protect public

officials from the full gamut of common law suits to which

they might otherwise be exposed. Indeed, the Supreme Court’s

broad pronouncements regarding executive immunity in Barr

v. Matteo, supra, were rendered in the context of a simple libel

suit against the defendant in that case. In contrast to the

wide range of common law suits which public officials might

face in the absence of broad common law immunities, Sec-

tion 1983 exposes state officials to a relatively restricted class

of suits — actions to redress deprivations of constitutional rights.

Sla

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 5]

In this context, the policies supporting the doctrines of of-

ficial or executive immunity are less persuasive. The burden

upon state officials to defend against these suits — the non-

meritorious as well as the meritorious — is but a small price

to pay for the protection of constitutional rights. And it is

a fundamental precept of this Nation that public officials

should exercise the highest degree of care in

their duties when the constitutional rights of citizens are at

stake. Moreover, it certainly cannot be said that Congress

was ignorant of the burden it was placing upon state officials

when it established a remedy to protect against state inter-

ference with the constitutional rights of citizens.

Nor can it be said that the conduct of a state official in

discharging his discretionary duties is of such a nature that

judicial review of the constitutionality of that conduct must be

barred. Nowhere in the Constitution do I find that the rights

guaranteed therein are to be subordinate to the need for un-

hampered exercise of discretion by state officials. As real as

this need may be, it is not so absolute that suits under Section

1983 to redress asserted deprivations of constitutional rights

by state officials must be barred in deference to it. Rather

than immunizing state officials from suit under Section 1983,

the discretionary nature of their conduct should relate only to

the question of ultimate liability under that statute for actions

which were unreasonable under the circumstances.®

In this respect I recognize that the actions challenged in the

present complaints — to the extent that any of those actions

might be shown to have been directly related to the quelling

of a civil disturbance — demand the utmost in discretion

in the context of common law Suits. He paggiete that the degree of

discretion required in the performance of official duties should bear

solely on the question of ultimate liability, and need not be raised

as a bar to the suit. The substantive law of torts, rather than broad

rules of immunity, can adequately protect public officials from lia-

bility for conduct which was reasonable under the circumstances.

Carter v. Carlson, supra, 447 F.2d at 364, n.15.

52 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

and immediate judgments in the face of sudden exigencies.

As discussed in Part IV of this dissent, in Moyer v. Peabody,

212 U.S. 78 (1909), and Sterling v. Constantin, 287 U.S. 378

(1932), the Supreme Court has expressly provided state of-

ficials with a permitted range of discretionary conduct in the

face of civil disorders and, as to actions within that permitted

range, has restricted judicial review to the narrow question

of whether the state officials acted in good faith and in the

honest belief that their actions were necessary to quell the

disturbance. Beyond this restriction on judicial review of

acts within a permitted range of discretion, neither Moyer

v. Peabody nor Sterling v. Constantin established any broad

rule of personal immunity for state officials acting to quell

civil disorders. Such a rule of personal immunity, unrelated to

whether the challenged conduct was within the range of ac-

tions justified by the circumstances, would render meaning-

less the language in Sterling v. Constantin respecting a per-

mitted range of justifiable conduct and would directly contra-

vene the established rule set forth in that opinion:

“What are the allowable limits of military discretion and

whether or not they have been overstepped in a par-

ticular case, are judicial questions. ... There is no

ground for the conclusion that military orders in the case

of insurrection have any higher sanction or confer any

greater immunity.” 287 US. at 401.

I would therefore hold that the present suits under Section

1983 are not barred by any notions of common law executive

immunity. The majority’s conclusion to the contrary renders

Section 1983 a nullity and recognizes the state’s interest in

the immunity of its officials as being superior to the consti-

tutional rights of individuals.

53a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 53

IV.

The majority herein — as did the District Court — relies

in part on the Supreme Court's decision in Moyer v. Peabody,

212 U.S. 78 (1909), for the proposition that Defendants-Ap-

pellees’ good faith actions in the face of a civil disorder

are beyond judicial review. In that case, the Governor of

Colorado had declared a county to be in a state of insurrec-

tion — presumably because of existing labor unrest and ap-

orehension of trouble from members of the Western Federation

of Miners, of which Moyer was president. Apparently by

order of the Governor, members of the State’s National Guard

arrested Moyer and imprisoned him for a period of two and

one-half months, during which time no charges were filed

against him and no attempt was made to bring him before

the state courts, which were in full operation during the

incident.

After his release from custody, Moyer brought an action

for damages against the Governor (then out of office) under

R.S. § 1979 (now 42 U.S.C. § 1983), alleging that the arrest

and incarceration were without probable cause, in violation

of Moyer’s Fourteenth Amendment rights. The Circuit Court

dismissed the complaint for lack of jurisdiction.

The Supreme Court affirmed the dismissal on the ground

that the complaint failed to state a claim under R.S. § 1979.

“So long as such arrests are made in good faith and in

the honest belief that they are needed in order to head

the insurrection off, the Governor is the final judge and

cannot be subjected to an action after he is out of office on

the ground that he had not reasonable ground for his

belief.” 212 U.S. at 85.

Even if it could be said that this subjective good faith test

prescribed in the Moyer decision sets the limits for judicial

review in the present cases, that test would not support the

District Court’s dismissal of the present complaints. Moyer at

no time asserted that the Governor’s conduct was in bad faith

54 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

or that it was not directed toward the quelling of an insurrec-

tion. Rather, the parties agreed that the arrest and detention

were undertaken in good faith in the face of an actual insur-

rection: “The facts that we are to assume are that a state

of insurrection existed and that, the Governor, without suf-

ficient reason but in good faith, in the course of putting the

insurrection down held the plaintiff until he thought that

he safely could release him.” 212 U.S. at 84.°

The present complaints do not stipulate that the alleged

conduct of the defendants was undertaken in good faith or

that it was directed at the quelling of an actual insurrection

or disorder. To the contrary, the complaints assert that the

action or inaction of all defendants was intentional, willful,

wanton, reckless, and unjustified under the circumstances. Be-

cause the suits were dismissed on the complaints for lack of

jurisdiction, no evidence was introduced to support or re-

fute these allegations. Therefore, under the above-quoted

language from the Moyer opinion alone, the present suits

would have to be remanded for further proceedings in order

to determine whether the alleged actions of the defendants,

if proven, were undertaken in “good faith and in the honest

belief” that they were necessary to head off an actual in-

surrection.

In view of the Supreme Court’s subsequent decision in

Sterling v. Constantin, 287 U.S. 378 (1932), however, it is

clear that the “good faith and honest belief” test prescribed

in Moyer v. Peabody cannot be broadly construed as a general

standard of judicial review of the actions of a governor and

National Guardsmen in the face of an insurrection or civil

disorder. In Sterling, the Governor of Texas — under his

9The parties in Moyer v. Peabody had agreed that the record of

the proceedings on Moyer’s earlier petition for a writ of habeas corpus

i e Supreme Court of Colorado would be made part of the com-

plaint before the federal Circuit Court. The existence of an in-

surrection and the Governor’s good faith were established in this

recor -_ ® colored were not at issue before the latter Court.

S. a a

55a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 55

declaration of martial law — had ordered the state’s National

Guard to seize and control privately owned oil wells in order

to impose production restrictions. Finding that the evidence

did not support the Governor's and National Guard officials’

asserted belief that their actions were necessary to prevent

a threatened insurrection, a three-judge District Court perma-

nently enjoined the Governor and National Guard officers from

enforcing their executive and military orders and otherwise in-

terfering with the production of oil.

In upholding the three-judge Court's injunction, the Su-

preme Court noted that the question before it did not relate

to the “permissible scope of determinations of military necessity

in all their conceivable applications to actual or threatened

disorder and breaches of the peace,” nor did it relate to the

“quelling of disturbances and the overcoming of unlawful re-

sistance to civil authority.” 287 U.S. at 401. Nonetheless, it

is clear from the precise language of the Sterling opinion that

the “good faith and honest belief” test suggested by the Moyer

v. Peabody decision cannot stand as a general limitation on

judicial review in cases where the existence of actual civil dis-

order or insurrection is established.

At the outset the Supreme Court in Sterling struck down the

notion that a governor or other state official, relying on his

personal views of necessity,"® may create an irrebuttable pre-

sumption — unreviewable by the courts — that his actions

the plaintitte’ claims. The Governor and a Natio Guard General

testified that their “orders had not been issued for the purpose of

lieved from reports brought to them that ‘unless they kept the

production of oil down to within 400,000 barrels, a warlike riot and

insurrection, in fact a state of war, would ensue.’ . . .” 287 US. at

391. The District Court, however, proceeded to make the following

findings from the evidence before it: ‘“We find no warrant in the

evidence for such belief. Looking at it in the light most favorable to

defendants’ contention, it presents nothing more than threats of vio-

lence or breaches of the peace. ... It shows that at no time has

56 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

and-those of the National Guard were justified under the

circumstances:

“And when the federal court, finding his action to have

been unjustified by any existing exigency, has given the

relief appropriate in the absence of other adequate reme-

dy, appellants assert that the court was powerless thus

to intervene and that the Governor's order had the quality .

of a supreme and unchallengable edict, overriding all con-

flicting rights of property and unreviewable through the

judicial power of the Federal Government.

“If this extreme position could be deemed to be well

taken, it is manifest that the fiat of a state Governor,

and not the Constitution of the United States, would be

the supreme law of the land; that the restrictions of the

. Federal Constitution upon the exercise of state power

would be but impotent phrases, the futility of which

the State may at any time disclose by the simple process

of transferring powers of legislation to the Governor to

be exercised by him, beyond control, upon his assertion

of necessity. Under our system of government, such a

conclusion is obviously untenable. There is no such

avenue of escape from the paramount authority of the

Federal Constitution. When there is a substantial show-

ing that the exertion of state power has overriden private

rights secured by that Constitution, the subject is neces-

sarily one for judicial inquiry in an appropriate pro-

ceeding directed against the individuals charged with

the transgression. To such a case the federal judicial

power extends (Art. III, § 2) and, so extending, the court

has all the authority appropriate to its exercise.” 287 U.S.

at 397-98.

At a later point in its opinion, the Supreme Court further

assailed the defendants’ assertion that their action under a

there been in fact any condition resembling a state of war, and that,

unless the Governor may by proclamation create an irrebuttable

presumption that a state of war exists, the actions of the Governor

and his staff may not be justified on the ground of military neces-

sity.”” 287 U.S. at 391-92.

57a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 57

proclamation of martial law “can be taken as conclusive proo:

of its own necessity and must be accepted as in itself due

process of law”:

“Appellants’ contentions find their appropriate answer

in what was said by this Court in Ex parte Milligan, 4

Wall. 2, 124, a statement as applicable to the military

authority of the State in the case of insurrection as to

the military authority of the Nation in time of war:

‘The proposition is this: That in a time of war the

commander of an armed force (if in his opinion the

exigencies of the country demand it, and of which he

is to judge), has the power, within the lines of his

military district, to suspend all civil rights and their

remedies, and subject citizens as well as soldiers to the

rule of his will; and in the exercise of his lawful authority

cannot be restrained, except by his superior officer or the

President of the United States. If this position is sound

to the extent claimed, then when war exists, foreign or

domestic, and the country is subdivided into military

departments for mere convenience, the commander of

one of them can, if he chooses, within his limits, on the

plea of necessity, with the approval of the Executive,

substitute military force for and to the exclusion of the

laws, and punish all persons, as he thinks right and prop-

er, without fixed or certain rules. The statement of this

proposition shows its importance; for, if true, republican

government is a failure, and there is an end of liberty

regulated by law. Martial law established on such a

basis, destroys every guarantee of the Constitution, and

effectually renders the military independent of and su-

perior to the civil power. . . . Civil liberty and this kind

of martial law cannot endure together; the antagonism

is irreconcilable; and, in the conflict, one or the other

must perish.’” 287 U.S. at 402-03.

The Sterling Court then turned to consider the counter-

vailing discretion which must be afforded to state officials under

58 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

their duty to suppress violence and maintain order.'* Within

this context, the Supreme Court discussed its earlier decision

in Moyer v. Peabody and prescribed the limitations which

must be placed on the language of that opinion:

“The nature of the power [of the Governor to call up

the militia to suppress insurrection and disorder] also

necessarily implies that there is a permitted range of

honest judgment as to the measures to be taken in meet-

ing force with force, in suppressing violence and restoring

order, for without such liberty to make immediate de-

cisions, the power itself would be useless. Such measures,

conceived in good faith, in the face of the emergency

and directly related to the quelling of the disorder or

the prevention of its continuance, fall within the discre-

tion of the Executive in the exercise of his authority to

maintain peace. Thus, in Moyer v. Peabody, supra, the

Court sustained the authority of the Governor to hold in

custody temporarily one whom he believed to be en-

gaged in fomenting disorder, and right of recovery against

the Governor for the imprisonment was denied. The

Court said that, as the Governor ‘may kill persons who

resist, he ‘may use the milder measures of seizing the

bodies of those whom he considers to stand in the way

of restoring peace. Such arrests are not necessarily for

punishment, but are by way of precaution to prevent

the exercise of hostile power. So long as such arrests

are made in good faith and in the honest belief that they

are needed in order to head the insurrection off, the

Governor is the final judge and cannot be subjected to

an action after he is out of office on the ground that he

had not reasonable ground for his belief.’ In that case

it appeared that the action of the Governor had direct

relation to the subduing of the insurrection by the tem-

porary detention of one believed to be a participant,

11 As discussed in Part VI of this dissent, the Sterling Court ex-

mae ruled that the Governor’s decision to call up the National

is conclusive and, 2 and of itself, is not subject to judicial

59a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, etal. 59

and the general language of the opinion must be taken in

connection with the point actually decided. Cohens v.

Virginia, 6 Wheat. 264, 399; Carroll v. Carroll's Lessee,

16 How. 275, 287; Myers v. United States, 272 U. S. 52,

142,

“It does not follow from the fact that the Executive

has this range of discretion, deemed to be a necessary in-

cident of his power to suppress disorder, that every sort

of action the Governor may take, no matter how unjus-

tified by the exigency or subversive of private right and

the jurisdiction of the courts, otherwise available, is con-

clusively supported by mere executive fiat. The contrary

is well established. What are the allowable limits of

military discretion, and whether or not they have been

overstepped in a particular case, are judicial questions.

Thus, in the theatre of actual war, there are occasions

in which private property may be taken or destroyed to

prevent it from falling into the hands of the enemy or may

be impressed into the public service and the officer may

show the necessity in defending an action for trespass.

‘But we are clearly of opinion,’ said the Court speak-

ing through Chief Justice Taney, ‘that in all of these

cases the danger must be immediate and impending; or

the necessity urgent for the public service, such as will

not admit of delay, and where the action of the civil

authority would be too late in providing the means which

the occasion calls for. . . . Every case must depend on

its own circumstances. It is the emergency that gives the

right, and the emergency must be shown to exist before

the taking can be justified.’ Mitchell v. Harmony, 13

How. 115, 134. See, also, United States v. Russell, 13

Wall. 623, 628. There is no ground for the conclusion

that military orders in the case of insurrection have any

higher sanction or confer any greater immunity.” 287

U.S. at 399-401 (emphasis added).

The foregoing discussion in Sterling v. Constantin clearly

precludes the application of the “good faith and honest be-

lief” language of Moyer v. Peabody as a general standard of

judicial review in suits challenging the actions-of a gover-

60 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

nor and National Guardsmen even when it is established from

the evidence that those actions were directly related to the

quelling of a civil disorder or insurrection. As set, forth in

the above-quoted portion of the Sterling opinion, the language

of Moyer v. Peabody relates to judicial review of those ac-

tions of state officials only when it is established that those

actions were within the “permitted range of honest judgment

as to the measures to be taken in meeting force with force,

in suppressing violence and restoring order. . . .” As such, the

Moyer language is simply a statement of the deference which

must be given to state officials’ good faith judgments and ac-

tions within a permitted range of discretionary conduct.

It is equally clear from the Sterling v. Constantin opinion

that in no case is the permitted range of honest judgment

free from objective limitations. Rather, when presented with

allegations that state officials, in their efforts to quell a dis-

order or insurrection, have deprived persons of itheir consti-

tutional rights through actions which were not justified by

the exigencies of the situation, the courts can and must ascer-

tain “the allowable limits of military discretion, and whether

or not they have been overstepped in a particular'case. . . .

There is no ground for the conclusion that military orders

in the case of insurrection have any higher sanction or con-

fer any greater immunity.” 287 U.S. at 401.

I thus find that the Supreme Court’s decision in Sterling

v. Constantin requires two levels of inquiry in suits to redress

deprivations of constitutional rights by state officials whose

actions are shown to have been directly related to the quelling

of civil disorders or insurrections.'? Initially the court'? must

12 State officials are afforded a permitted range of good faith, dis-

cretionary measures only in the context of actions “in the face of

the emergency and directly related to the quelling of the disorder

or the prevention of its continuance.” Sterling v. Constantin, 287

U.S. at 400. As to any conduct which is not shown to have been

directly related to the quelling of a disorder, liability under Section

1983 must be governed b of tar pine inciples of tort liability. See

Monroe v. pl gt 365 US. 187 (1

13 For ene I refer to the trier of fact as the court through-

out this discussion. Both levels of inquiry discussed in the text

6la

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 61

review the circumstances surrounding any asserted deprivation

of constitutional rights and determine if the conduct causing

those asserted deprivations fell within the range of discre-

tionary measures which were justified by the exigencies of

the situation.

Precise standards, of course, cannot be prescribed as guides

in defining the parameters of this range of discretion in any

given case. Certainly the use of lethal force could seldom,

if ever, fall within the range of permitted actions in the face

of nothing more than a nonviolent sit-in or a peaceful pro-

test march. At the other extreme, open violence and actual

threats to human life would seemingly justify a broad range

of discretionary actions, including the use of lethal force in

some situations. Ultimately, “‘[e]very case must depend on

its own circumstances.” Sterling v. Constantin, 287 U.S. at

401.

If it is determined that the conduct of any state official

was outside the range of justified actions, that official will be

personally liable for any deprivations of rights resulting from

his action, notwithstanding any asserted good faith or honest

belief in the justification for his action. Alternatively, if it is

determined that the conduct of any state officials was within

the range of actions justified by the. circumstances, under

Moyer v. Peabody the second level of judicial review of that

conduct must be restricted to the narrow question of the of-

ficials’ “good faith and honest belief” that the actions were

necessary to quell the disorder.

Personal liability will accompany any actions which, al-

though adjudged to have been within the range of permitted

conduct, are proven to have been undertaken in bad faith

and/or without an honest belief that they were necessary

to quell the disorder or prevent its continuance. This test,

relate to questions of fact which must be resolved by the trier of

fact, be it the court or the jury working under appropriate instruc-

tions from the Court. .

52a

62 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

as prescribed in Moyer v. Peabody, is necessarily subjective,

and the burden of proving the absence of good faith and an

honest belief in necessity is therefore a difficult one in any

case.

Beyond an inquiry into any allegations of bad faith and/or

an absence of honest belief in necessity, a court cannot review

- any conduct which it has found to be within the range of

actions justified under the circumstances. If the action taken

was within the range of permitted measures, a court can-

not review asserted errors in judgment nor consider whether

a more prudent course of action might have been chosen.

Rather, choices between alternative courses of action within

the permitted range must be left solely to the discretion of

the state officials. “[W]ithout such liberty to make immediate

decisions, the power [of state officials to maintain peace]

would be useless.” Sterling v. Constantin, supra, 287 U.S. at

399-400.

I would remand the present Section 1983 suits for findings

of fact respecting the nature of the alleged actions of De-

fendants-Appellees. As to any such actions which might

be shown to have been directly related to the quelling of a

civil disorder or insurrection, the trier of fact would be re-

quired to determine whether those actions fell within the

permitted range of discretionary measures which were justi-

fied by the exigencies of the situation and whether those

actions were undertaken in good faith and in the honest be-

lief that they were necessary to quell the disorder.

I now turn to consider the state law, wrongful death actions

which, in addition to the claims under 42 U.S.C. § 1983, are

asserted in each of the complaints.

Federal jurisdiction over the wrongful death actions in the

Krause and Miller suits is based on diversity of citizenship,

63a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 63

28 U.S.C. § 1332.4 The Plaintiff-Appellant in the Scheuer

suit, being a resident of Ohio, asserts her wrongful death ac-

tion under the doctrine of pendent jurisdiction.

The District Court made no reference to the wrongful

death actions, and the majority herein fails to discuss these

actions, all three of which it erroneously characterizes as hav-

ing been asserted under the doctrine of pendent jurisdiction.

Although entertainment of the pendent claim in the Scheuer

complaint rested upon the District Court’s discretion in the

interest of judicial economy, convenience, and fairness to the

parties, United Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966), the wrongful death claims asserted in the Krause and

Miller complaints were necessarily before the District Court

under its original, diversity jurisdiction. It is therefore neces-

sary to consider whether the wrongful death actions asserted

in the Krause and Miller complaints are barred by the Eleventh

Amendment and/or the common law doctrine of executive or

personal immunity espoused by the majority herein.

I have concluded in Part II above that the claims under

Section 1983 are not suits against the State of Ohio, so as

to invoke the prohibition of the Eleventh Amendment. For

purposes of the Eleventh Amendment’s prohibition, the

wrongful death actions are distinguishable from the Section

1983 claims only in that the former do not seek redress under

a federal statute for an alleged deprivation of constitutional

rights. Notwithstanding this distinction, the wrongful death

actions are not suits against the State of Ohio so as’ to be

barred by the Eleventh Amendment.

_ 4The Krause and Miller complaints state that the plaintiffs there-

in are residents of Pennsylvania and New > respectively. The

over ‘the wrongful den nianvokes, federal ¢ S.C. § 1332. Whil

over the wron ea claims er ».C, 4 ile

specifically referring only to jurisdiction under 28 U.S.C. §§ 1331 and

1343, the Miller complaint alleges facts which clearly support diversity

jurisdiction over the wrongful death action therein.

64 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

Although the Supreme Court's decision in Ex parte Young,

209 U.S. 123 (1908), dealt with a suit in equity to enjoin

a state official’s execution of an assertedly unconstitutional

statute, the Court’s review of the scope of the Eleventh

Amendment was not confined to suits seeking to vindicate the

plaintiff's constitutional rights against state interference. As

discussed in Part II above, as of 1908 the Eleventh Amend-

ment had been construed as barring suits by a citizen against

a state as a named defendant, against a state official for

monies from a state’s treasury, and against a state official

when the requested relief would require specific performance

of a contract by the state. See Ex parte Young, supra, 209

U.S. at 150-52.

Since the Supreme Court’s discussion in Ex parte Young,

the scope of the Eleventh Amendment has not been expanded

so as to encompass the present wrongful death actions. See

generally Mathis, The Eleventh Amendment: Adoption and

Interpretation, 2 Ga. L. Rev. 207, 230-34 (Winter 1968). _Ir-

respective of whether a citizen’s suit asserts a constitutional

claim, the test under the Eleventh Amendment has consistently

been whether a state is a “real, substantial party in interest.”

Ford Motor Co. v. Department of Treasury, 323 U.S. 459,

464 (1945). See also In re Ayers, 123 U.S. 443 (1887). More-

over, the Supreme Court has consistently noted that the

Amendment presents no bar to a citizen’s suit against a state

official, individually, for his wrongful acts. See Ford Motor

Co. v. Department of Treasury, supra, 323 U.S. at 462; Great

Northern Ins. Co. v. Read, 322 U.S. 47, 51 (1943) (quoted

in Part II of this dissent).

The present wrongful death actions seek damages from the

named defendants through their personal liability, as do the

Section 1983 counterparts. They do not name the State of Ohio

as a defendant; they do not seek monies from the State's

treasury; they do not seek any type of relief under a contract

with the State; nor does the State of Ohio have any cognizable

65a

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 65

interest in these actions which could render it a real party

in interest.

I therefore would hold that the wrongful death actions

asserted in the three complaints — like their Section 198?

counterparts — are not suits against the State so as to in-

voke the Eleventh Amendment's prohibition.

Unlike the scope of the Eleventh Amendent and the applica-

bility of doctrines of personal or executive immunity under

Section 1983, the question of whether the wrongful death ac-

tions are barred by the Defendants-Appellees’ personal im-

munity is governed by Ohio law. See Carter v. Carlson, 447

F.2d 358, 361-65 (D.C. Cir. 1971), cert. granted sub. nom.

District of Columbia v. Carter, 404 U.S. 1014 (1972) (ap-

plying local, common law rules of immunity to common law

tort actions, but rejecting the applicability of these rules to

claims under Section 1983). Cf. Roberts v. Williams, 456 F.2d

819, 830 (5th Cir.) cert. denied, 404 U.S. 866 (1971) (apply-

ing state law in finding no liability under pendent, state law

claims, but relying on federal case law in finding liability

under Section 1983).

With respect to the personal, civil liability of its officials

in the performance of their duties, Ohio has adopted the

common law distinction between discretionary and ministerial

functions and recognizes a limited immuity for officials acting

within the former context. It is established in Ohio that a public

official is individually liable for negligence in performing a

ministerial function, but a public official, acting within the

scope of his authority and in the absence of bad faith or a cor-

rupt motive, is not individually liable for his failure to properly

perform a duty involving judgment and discretion. Gregory v.

Small, 39 Ohio St. 346 (1883); Thomas v. Wilton, 40 Ohio St.

516 (1884). See cases cited 44 Ohio Jur. 2d 570, n.18.

It is clear from the complaints that the alleged actions of

Governor Rhodes and President White involve the exercise of

66 Krause, Admr., et al. v. Rhodes, et al. Nos. 71-1622-23-24

judgment and discretion within the above rule. Thus it is al-

leged that Governor Rhodes unnecessarily ordered the Na-

tional Guard troops to duty on the Kent State Campus, per-

mitted the troops to carry loaded weapons, permitted the

troops to shoot at persons without justification, and ordered

the troops to break up all assemblies, whether lawful or un-

lawful, and that President White failed to take any actions

to control the National Guard troops on the Kent State Cam-

pus or to decrease the risk of injury and death. These actions

or inactions appear to be: inherently discretionary, requiring

the judgment of the respective Defendants-Appellees.

It is further alleged, however, that the conduct of all De-

fendants-Appellees was intentional, willful, wanton, and reck-

less. These allegations, if proven, would establish the bad

faith and/or corrupt motive necessary to remove the above-

named Defendants-Appellees from the official immunity which

would otherwise protect them from personal liability for their

discretionary acts. Although the burden upon Plaintiffs-Ap-

pellants in proving the latter allegations would have been

difficult, the District Court heard no evidence respecting these

allegations and therefore could not properly dismiss the wrong-

ful death actions as against these Defendants-Appellees.

With respect to Adjutant General Del Corso and Assistant

Adjutant General Canterbury, the complaints allege that these

Defendants-Appellees intentionally, willfully, wantonly, and

recklessly caused and ordered inadequately trained and incapa-

ble National Guard troops to carry loaded weapons, to shoot

at persons without legal justification, and to engage in ac-

tions which increased the risk of injury and death to persons

on or near the campus. Beyond the generality of the last

clause, these alleged actions similarly appear to be discre-

tionary in nature, so as to invoke the limited common law im-

munity recognized for such actions. Again, however, the

District Court could not properly dismiss the wrongful death

actions as against these Defendants-Appellees without receiv-

ing evidence respecting the allegations of bad faith and/or

Nos. 71-1622-23-24 Krause, Admr., et al. v. Rhodes, et al. 67

corrupt motive, which, if proven, would remove these parties

from the common law immunity.

From the complaints alone, however, it is not clear whether

the alleged actions of Defendants-Appellees Del Corso and

Canterbury are asserted to have taken place at the scene of

the disturbances on the Kent State campus or, alternatively,

whether the alleged acts of these Defendants-Appellees as-

sertedly took place at some point away from the scene of

those disturbances. Whereas the limited common law im-

munity discussed above may be applicable to these Defen-

dants-Appellees for any discretionary acts in the latter context,

any actions in the former context would invoke the limited

statutory immunity which the Ohio Legislature has expressly

provided in O.R.C. § 5823.37:

“When a member of the organized militia

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