Gilligan v. Morgan
Opinion of the Court
delivered the opinion of the Court.
Respondents, alleging that they were full-time students and officers in the student government at Kent State University in Ohio, filed this action
“Was there and is there a pattern of training, weaponry and orders in the Ohio National Guard which singly or together require or make inevitable the use of fatal force in suppressing civilian disorders when the total circumstances at the critical time are such that nonlethal force would suffice to restore order and the use of lethal force is not reasonably necessary?”5
We granted certiorari to review the action of the Court of Appeals.
I
We note at the outset that since the complaint was filed in the District Court in 1970, there have been a number of changes in the factual situation. At the oral argument, we were informed that none of the named respondents is still enrolled in the University.
Respondents assert, nevertheless, that these changes in the situation do not affect their right to a hearing on their entitlement to injunctive and supervisory relief. Some basis, therefore, exists for a conclusion that the case is now moot; however, on the record before us we are not prepared to resolve the case on that basis and therefore turn to the important question whether the claims alleged in the complaint, as narrowed by the Court of Appeals’ remand, are justiciable.
II
We can treat the question of justiciability on the basis of an assumption that respondents’ claims, within the framework of the remand order, are true and could be established by evidence. On that assumption, we address the question whether there is any relief a District Court could appropriately fashion.
It is important to note at the outset that this is not a case in which damages are sought for injuries sustained during the tragic occurrence at Kent State. Nor is it an action seeking a restraining order against some specified and imminently threatened unlawful action. Rather, it is a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard. This far-reaching demand for relief presents important questions of justiciability.
Respondents continue to seek for the benefit of all Kent State students a judicial evaluation of the appropriateness of the “training, weaponry and orders” of the Ohio
In relying on the Due Process Clause of the Fourteenth Amendment, respondents seem to overlook the explicit command of Art. I, § 8, cl. 16, which vests in Congress the power:
"To provide for organizing, arming, and disciplining 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 Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” (Emphasis added.)
The majority opinion in the Court of Appeals does not mention this very relevant provision of the Constitution. Yet that provision is explicit that the Congress shall have the responsibility for organizing, arming, and disciplining the Militia (now the National Guard), with certain responsibilities being reserved to the respective States. Congress has enacted appropriate legislation pursuant to Art. I, § 8, cl. 16,
The Court of Appeals invited the District Court on remand to survey certain materials not then in the record of the case:
“[F]or example: Prevention and Control of Mobs and Riots, Federal Bureau of Investigation, U. S. Dept, of Justice, J. Edgar Hoover (1967) . . . ; 32 C. F. R. §501 (1971), 'Employment of Troops in Aid of Civil Authorities’; Instructions for Members of the Force at Mass Demonstrations, Police Department, City of New York (no date); Report of the National Advisory Commission on Civil Disorders (1968).” 456 F. 2d, at 614.
Judge Celebrezze, in dissent, correctly read Baker v. Carr, 369 U. S. 186 (1962), when he said:
“I believe that the congressional and executive authority to prescribe and regulate the training and weaponry of the National Guard, as set forth above, dearly predudes any form of judicial regulation of the same matters. I can envision no form of judicial relief which, if directed at the training and weaponry of the National Guard, would not involve a serious conflict with a
“‘coordinate political department; ... a lack of judicially discoverable and manageable standards for resolving [the question]; . . . the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; . . . the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.; . . . an unusual need for unquestioning adherence to a*9 political decision already made; [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.' Baker v. Carr, supra, 369 U. S. at 217 .... “Any such relief, whether it prescribed standards of training and weaponry or simply ordered compliance with the standards set by Congress and/or the Executive, would necessarily draw the courts into a nonjusticiable political question, over which we have no jurisdiction.” 456 F. 2d, at 619 (emphasis added).
In Flast v. Cohen, 392 U. S. 83 (1968), this Court noted that:
“Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action. Yet it remains true that '[j justici-ability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures . . . .’ Poe v. Ullman, 367 U. S. 497, 508 (1961).”14
In determining justiciability, the analysis in Flast thus suggests that there is no justiciable controversy (a) “when the parties are asking for an advisory opinion,” (b) “when the question sought to be adjudicated has been mooted by subsequent developments,” and
In testing this case by these standards drawn specifically from Flast, there are serious deficiencies with respect to each. The advisory nature of the judicial declaration sought is clear from respondents' argument and, indeed, from the very language of the court's remand. Added to this is that the nature of the questions to be resolved on remand are subjects committed expressly to the political branches of government. These factors, when coupled with the uncertainties as to whether a live controversy still exists and the infirmity of the posture of respondents as to standing, render the claim and the proposed issues on remand nonjusticiable.
It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible — as the Judicial Branch is not — to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system; the majority opinion of the
Voting rights cases such as Baker v. Carr, 369 U. S. 186 (1962), Reynolds v. Sims, 377 U. S. 533 (1964), and prisoner rights cases such as Haines v. Kerner, 404 U. S. 519 (1972), are cited by the court as supporting the “diminish [ing] vitality of the political question doctrine.” 456 F. 2d, at 613. Yet, because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise. The voting rights cases, indeed, have represented the Court’s efforts to strengthen the political system by assuring a higher level of fairness and responsiveness to the political processes, not the assumption of a continuing judicial review of substantive political judgments entrusted expressly to the coordinate branches of government.
In concluding that no justiciable controversy is presented, it should be clear that we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific
Reversed.
Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall dissent. Dor many of the reasons stated in Part I of the Court's opinion, they are convinced that this case is now moot. Accordingly, they would vacate the judgment of the Court of Appeals and remand the case to the District Court with directions to dismiss it as moot. See United States v. Munsingwear, Inc., 340 U. S. 36, 39.
The complaint was brought under 42 U. S. C. § 1983 with jurisdiction asserted under 28 U. S. C. § 1343 (3).
This section provides that, under certain circumstances, law enforcement personnel who are engaged in suppressing a riot are “guiltless” for the consequences of the use of necessary and proper force. Ohio Rev. Code Ann. §2923.55 (Supp. 1972).
The opinion of the Court of Appeals is reported sub nom. Morgan v. Rhodes, 456 F. 2d 608 (CA6 1972).
Respondents have not sought certiorari with respect to those claims.
409 U. S. 947 (1972).
Tr. of Oral Arg. 25, 33.
Memorandum of Petitioners Suggesting a Question of Mootness 2.
In 1971, the Army began to give National Guard recruits 16 hours of additional special civil-disturbance-control training recognizing the peculiar role of the National Guard in this area.
F. g., 32 U. S. C. §§ 105, 501-507, 701-714 (1970 ed. and Supp. I).
32 U. S. C. § 110.
10 U. S. C. § 331 et seq.
The initial and basic training of National Guard personnel is, by Regulation of the Department of the Army, pursuant to statutory authority, under federal jurisdiction. Commencing in 1971, National Guard units received, as part of the basic training, 16 hours of special civil-disturbance-control training, in recognition of the likelihood that the National Guard would be the primary source of military personnel called into civil disorder situations. See Dept, of the Army, Reserve Enlistment Program of 1963, CON Supp. 1 to AR350-1, App. XXV, Anx. F, Par. 3c (Aug. 31, 1972).
392 U. S., at 95 (footnotes omitted).
In a colloquy with the Court on the scope of the relief sought under the remand, one Justice asked:
“Would it be a fair characterization of your position that if the case goes back to the district court, you do not quarrel with the specific [National Guard] regulations now in force but (a) you want them made permanent and, (b) you want a continuing surveillance to see that they are carried out; is that a fair statement of your case?”
Mr. Geltner, counsel for respondents, answered:
“Yes, Your Honor, that is a fair statement of what we are seeking at this point, understanding that at the time the complaint was filed we were seeking a more specific change in what then existed.” Tr. of Oral Arg. 56.
See Duncan v. Kahanamoku, 327 U. S. 304 (1946); Sterling v. Constantin, 287 U. S. 378 (1932). In Laird v. Tatum, 408 U. S. 1, 15-16 (1972), we said: “[W]hen presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in this Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.”
Concurring Opinion
with whom Mr. Justice Powell joins, concurring.
Respondents brought this action in 1970 seeking broad-ranging declaratory and injunctive relief. But the issue presently before the Court relates only to a portion of the relief sought in 1970. Under the Court of Appeals’ remand order the District Court was limited in its review to determining the existence of a pattern of “training, weaponry and orders in the Ohio National Guard which
It is in this narrowly confined setting that we are asked to decide the issues presented in this case. Respondents have informed us that they seek no change in the current National Guard regulations; rather, they wish to assure their continuance through constant judicial surveillance of the orders, training, and weaponry of the Guard.
Were it not for the continuing surveillance respondents seek, I would have little difficulty concluding that the controversy is now moot. Except for that aspect of the case, all relief requested by respondents has been obtained. While one might argue that the likelihood of future changes in the rules is so attenuated that even the claim for continuing review by the District Court is moot, this issue need not be reached, as the District Court is clearly without power to grant the relief now sought.
Respondents’ complaint rests upon a single, isolated, and tragic incident at Kent State University. The conditions that existed at the time of the incident no longer prevail. And respondents’ complaint contains nothing suggesting that they are likely to suffer specific injury in the future as a result of the practices they challenge. See Laird v. Tatum, 408 U. S. 1, 14 (1972). A complaint based on a single past incident, containing allega
The relief sought by respondents, moreover, is beyond the province of the judiciary. Respondents would have the District Court, through continuing surveillance, evaluate and pass upon the merits of the Guard’s training programs, weapons, use of force, and orders. The relief sought is prospective only; an evaluation of those matters in the context of a particular factual setting as a predicate to relief in the form of an injunction against continuing activity or for damages would present wholly different issues. This case relates to prospective relief in the form of judicial surveillance of highly subjective and technical matters involving military training and command. As such, it presents an "[inappropriate] . . . subject matter for judicial consideration,” for respondents are asking the District Court, in fashioning that prospective relief, “to enter upon policy determinations for which judicially manageable standards are lacking.” Baker v. Carr, 369 U. S. 186, 198, 226 (1962).
For these reasons the judgment of the Court of Appeals must be reversed. On the understanding that this is what the Court’s opinion holds, I join that opinion.
Reference
- Full Case Name
- GILLIGAN, GOVERNOR OF OHIO, Et Al. v. MORGAN Et Al.
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- Published