# Petition for a Writ of Certiorari — Scheuer v. Rhodes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0265%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 416 U.S. 232 ## Text 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, 2 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 = 3 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. 4 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. 5 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). 6 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. 7 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 8. 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 8 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 9 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. ' ' | | } 10 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. 12 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. 13 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. 14 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 15 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). 16 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. 17 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 la 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,| v. 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, v. 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 2a 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, v. 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. | 3a 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 4a 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 Sa 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 Ta 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 8a 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: 9a 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 a 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 il 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. I. 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.” Il 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 ce 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 58 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0265%3A03. Public record. Not legal advice.