*1 al., Plaintiffs, et McSURELY al., Defendants. Thomas B. RATLIFF et A. No. 1146.
Civ. United States District E. D. at Pikeville. Oct. 1967. Opinion Dissenting Oct.
OPINION
COMBS, Judge. Circuit Kentucky’s passed sedition law was the aftermath of War I World Russia. Bolshevik Revolution in slightly law was amended unchanged otherwise it has remained through years. expect- As would be ed, comprehen- the statute is broad and good politics sive. It was signed Communism. The Governor bill but was fearful drew too it publicly much water. He stated it “goes syndi- beyond far far afield and thought calism and sedition.” He courts would “take out of law the dangerous”, sections which make it concluded with this statement: “Those [government] who seek overthrow violence, force or or coun- those who sel resistance to its laws unlawful destroyed, right means must be but speech blood-bought free is the herit- age every palladium it citizen: is the liberties, of our and it must and shall preserved.” Now, for the first time a section of City, Kunstler, York New M. William squarely presented judicial law for J., Stavis, Newark, Jack N. Dan Morton pre- determination. KRS 432.040.1 Also Pikeville, Anderson, Combs, & Combs for sented determination is Con- whether Ky., plaintiffs. for gress by legislation preempted Dotson, Ratliff, Herman give B. Thomas field so as to federal courts exclu- Pikeville, Ky., May, Robert jurisdiction; Marrs Allen sive and, should this Court Kentucky, Matthews, Atty. enjoin Gen. L. proceeding a state court from Weisl, Jr., Ky., Frankfort, Asst. Edwin L. brought under the statute. Nicholson, Depart- Atty. A. Gen., Leslie plaintiffs, The individual Mc- Alan C., Washington, Justice, D. ment of Margaret Surely, McSurely, Joseph Mul- Lexington, Atty., Cline, George U. I. S. loy, Braden, Braden, Carl and Anne Ky., for defendants. County, in the Pike Ky., Lexington, Sedler, ami- Robert A. advocating Circuit for curiae. cus syndicalism. sedition and criminal Matthews, defendants COMBS, Judge, are Robert Before Circuit Attor- ney Kentucky; MOYNAHAN, General of GORDON, Thomas B. Judges. Any person 1. KRS who word syndicalism sedition, 432.040— or or who writing advocates, suggests or or teaches organizes helps organize, or or becomes duty, necessity, propriety expedi or voluntarily a member of or assembles with ency syndicalism sedition, of criminal or or any society assemblage persons or prints, edits, publishes, issues teaches, suggests advocates or the doc- sells, distributes, knowingly circulates, syndicalism trine of criminal or sedition possession publicly displays or his has in penitentiary shall be confined for purpose publication for or circula twenty-one years, not more than or fined any printed matter in tion written or dollars, more than ten thousand advocating, suggesting teaching form both. prosecuting plaintiffs in Attorney the state Ratliff, for Commonwealth’s interlocutory injunc- Court; court; (3) Perry Circuit the Pike request County; pending Justice, and tion determination of Pike A. Sheriff relief; (4) County. permanent Atkins, Jailer of Pike Grover impounded by fed- seized material be Margaret McSurely, hus- *3 eral marshal. wife, organizers for are field band and Judge Moynahan plaintiff the motion Educa- sustained Conference Southern certify designation County, of a three Fund, Inc., Ken- to for in tional tucky. Pike judge mo- McSurely or- district court. He denied a field also interlocutory injunction for ganizer of tion and for the Conference National impound the seized material. motion litera- Politics and has distributed New Joseph permitted to intervene Summer, unincor- ture both of Vietnam plaintiff. plaintiffs aas porated associations and both repre- Joseph Mulloy a field here. hearing Judge Moy- After the before Volunteers, Appalachian for the sentative nahan, were amended so warrants organization primarily funded charge of to eliminate sedition as Oppor- of United tunity. Economic States Office against the United States. McSurelys According and to the Septem- This Court was on convened Mulloy, in- their official duties ¡Kentucky 1, ber The Liber- 1967. Civil socio-eco-political vestigate milieu of permitted to its ties Union was tender County, people of inform the Pike “to curiae and motion intervene amicus as rights,” help local citizens their “organize and hearing on to submit a At the brief. problems.” their overcome agreed September parties a Braden, and stipulation facts, and husband Anne Carl of and the Court fixed wife, making pleadings of the Con- up are directors Southern time for and filing temporary ference Educational Fund. for the of No briefs. was issued but defendant night August 11, under On the of agreed open in Ratliff that he charging authority seditious of warrant prosecute would criminal action against and the United States activities Pike in the Court until final de- Circuit Kentucky in of viola Commonwealth cision this Court. 432.040, Pike tion officials of KRS of September 8, Attorney On General County deputies and their .arrested and__mo- filed answer his Mulloy. McSurelys also and The officials He tions. moved that action be-dis- books,2 impounded loose seized and that, for missed lack of and twenty-six twenty-two posters, boxes and alternative, stay in the Court its books, private pamphlets, other and proceedings to await the exhaustion published and found documents general He state remedies. also filed a They impounded McSurely a home. also denial. personal and suitcase of clothes several caught up give in the whirl media continued to items which were news publicity spokesmen case wide wind of the search. and for presented both defendants together McSurelys, South- _with arguments press their na- on Fund ern Conference Educational_ programs. tional news complaint Summer, their filed Vietnam September 11, Jury for On the Grand the United They Kentucky. acting general County, Pike in- the Eastern District court, judge structions on face from the KRS against (1) a returned an the Mc- unconstitutional asked convened; Surelys, Mulloy, and Anne judge court be Carl and three district Braden, charging enjoined (2) them ac- with seditious that defendants copies copies except 3. single 28 U.S.C. Nearly §§ 2281-2284. all Matuson, FALSE WITNESS. for into forum against turn the courts the Commonwealth tivities argument political im- County theories with in violation Kentucky and Pike day, following prisonment penalty the loser. 432.040. On KRS in- requirement no contains Bradens, Louis- are residents of ignorant unwary Kentucky, appearance in tent. made ville, dragnet in the and could be enmeshed were arrested Pike easily plotter. jail Plain- covert placed of bond. in default hear- an immediate then moved for tiffs of the sedition One definitions their motion and renewed sug is, advocacy the 1920 Act “the They injunction. temporary moved also writing gestion by word, act, deed or the de- order for a show cause * * * change or modification contempt of Ratliff for court. fendant Government United States or of the Commonwealth of hearing held second This Court *4 the of of Constitution or laws either of September time the Bradens at which * * * them, by by means other than plaintiffs. as intervene were allowed to * *." * means Ken lawful Carroll’s by Testimony given the individual was tucky Statutes, Baldwin’s Revision. 1936 by the defendant Ratliff. person sug A gesting could thus be indicted for testimony The to the effect was change a the state or federal filing prosecu- since the of the criminal “by constitution means than other against plaintiffs people the Pike tion of lawful means.” is lawful of What associating of are fearful necessity pre have decided the has for them them and it become difficult siding judge. plain This is a of violation carry work; on normal also the Sixth Amendment to the con federal publicity jeopardized position the has the guarantees right stitution which the Appalachian of the in obtain- Volunteers the accused “to informed be of the na ing funds from the Office Economic ture and cause of the accusation.” Un Opportunity. der the person Sixth a Amendment can September At the conclusion charged merely violating not be law; the hearing order, Judge Moy- we an entered charge the specific. must be more dissenting, nahan on is KRS 432.040 For all reasons these KRS unconstitutional; its face the fed- guarantees violates basic constitutional eral courts have exclusive applied which have to the been states nature; offenses of the and that through the Fourteenth Amendment for Commonwealth of and the Pike nearly century. half a enjoined Circuit from should proceeding charges further with the opinion that, areWe even against plaintiffs. the individual constitutional, if the statute were Con gress preempted has the this field and question The is jurisdiction. federal courts have exclusive clearly the under even unconstitutional Pennsylvania Commonwealth of v. Nel yardstick. most flexible It is too broad son, 477, 100 350 U.S. 76 S.Ct. L.Ed. vague. It the First and too contravenes (1956). to the Amendment Constitution unduly prohibits it prosecution against United because The criminal press, plaintiffs speech, pitched solely theory freedom of freedom of the is on the right assembly. engaged and the It fails that conspiracy were in a Communist distinguish advocacy government between overthrow advocacy ideas and action. subdivision, of County. and its Pike merely it a offense makes This made was clear at possess, circulate, hearing litera temporary with intent to on the motion for subject injunction. im sugges- ture on the sedition. There has been no poses penalty imprisonment tion of other seditious activities. advocating unpopular political an belief. The case squarely therefore falls Security charged Act,4 the Internal of a Communist as members Smith Act,6 conspiracy. Moreover,
Act,5 are here talk- Control we Communist subject Congressional prosecution, a not an investi- other about acts gation conspiracy prosecution for a Communism. —a Congress recognized con- which country disagreement in this is There stituting country threat as a dangers of Communism about give whole. The state must therefore dangers. re-As those to combat how priority government federal like Communism, of us most gards offenses. learned Indostan from men the blind in this case were amended warrants touching a elephant each about charges of sedition anatomy. knowWe part of its different dropped ap- United States were a whole. very little about parent give ju- effort state court agrees: everybody however, point, oneOn risdiction. We think the amendment movement. local not a Communism the subsequent warrants the limitation of de- Act of Communist Control ges- futile party of “that Communist clares ture. Jurisdiction of the here offenses *** fact an United States charged is in federal court. conspiracy to over- instrumentality of a question the United whether next throw Government ”* * * attempt enjoin to over- An the state Court should States. *5 government proceeding of the the further throw with pose that plaintiffs. would to It us of its subdivisions of these seems even one 479, government Pfister, of 85 to the 380 U.S. a threat Dombrowski v. such Congressional (1964), 1116, acts in is that L.Ed.2d 22 United S.Ct. 14 States immediately unduly be- point. broad to above The statute is referred in vague regulation expression applicable. the absolutes of and come One of that country is the Civil War neces- since enforcement statute would of goes privi- sarily indivisible. So are is one nation curtail activities which Flag Allegiance Pledge leged re- Amendment. of under the First members cited school children It difficult to believe that is Daughters Revo- the American of capable lawyers seriously could contend lution. The that constitutional. this statute is language that therefore our view indictment7 follows the of activity opinion is identified when a seditious our fails to state Congres conspiracy a Communist ail too to indictable offense. fails subject require in advocacy sional on the acts make the distinction between doctrine, preemption thus advocacy vocation of ideas and of action and is vesting fed jurisdiction in the exclusive therefore insufficient. Dennis v. United Uphaus 494, 857, not think v. States, eral courts. doWe 341 95 L. U.S. 71 S.Ct. 1040, Wyman, 72, States, L. (1950); 3 360 U.S. 79 S.Ct. Ed. Noto United 1137 differently. (1959), 290, 1517, holds Ed.2d 1090 367 U.S. 81 6 L.Ed.2d S.Ct. question (1960). addition, There the a state was whether 836 conclusion investiga right inescapable prosecu had the make its own criminal instituted, in part, tion of subversive activities. tions were at least vestigations presumably encompassed organizing stop plaintiffs’ all order to ac activities, merely County. those of tivities in Pike subversive That effort has only Communists. Here the has been been successful. offense Not has there been “chilling perpetrators speech isolated and the effect” on freedom Copy opin- 4. 7. 18 U.S.O. 2385. to this § attached appendix. ion as an seq. et 5. 50 U.S.O. 781 § seq. § 50 U.S.O. 841 et
853 prior indict- to their indictment Dombrowski, there referred was this suit ment was returned after The Gov- freezing effect. fact been in filed. public statement has issued ernor Appalachian Volun- funds federal right Moreover, in our if we are con Plaintiff’s be discontinued. teers should the offenses with which clusion and im- seized possessions have been charged plaintiffs fall are within placed in they have been pounded and Congressional purview of the enact originally had Bradens, jail. Communism, on the ments any offense, were charged with not been juris then federal courts have exclusive they jail at- placed in after indicted tempted necessary diction and an the other render assistance jurisdiction. Hines in aid v. Davi prosecu- Clearly, the plaintiffs. criminal dowitz, 52, 399, L. 312 61 85 U.S. S.Ct. plaintiffs’ damper put a tions have (1941); Service, Capital 581 Inc. v. Ed. on others speech, as well freedom Board, National Labor Relations 347 U. might sympathy their ob- with inbe who jectives. 699, 887 S. S.Ct. L.Ed.
(1954);
Lester,
American Ins. Co. v.
(4th
1954).
rely on
U.S.C.
FORM INDICTMENT (RCr6.10_
PIKE COURT CIRCUIT KENTUCKY OF COMMONWEALTH n vs. No. Braden Carl
Anne Braden KRS McSurely Margaret McSurely Joseph grand charges: jury September day mo. before And within 12 or about the 7 On Indictment, Finding County, the above in Pike of this suggesting (s) advocating, defendant committed the offense of named syn- teaching duty, necessity, propriety expediency criminal or or issuing sedition, printing, publishing, editing, or or or dicalism having posses- circulating,
knowing selling, distributing, or or any printed publication purpose circulation written or for the or sion syn- advocating, suggesting teaching, form or matter organizing helping organize, sedition, or or becom- or of dicalism or voluntarily assembling any society or as- a member of or advocates, teaches, suggests semblage persons doctrine of syndicalism sedition, manner form fol- committed in criminal lows, defendants, County and before named in Pike to-wit: above *7 feloniously, by knowingly finding word of this indictment did necessity, suggest duty, propriety and writing, or or expediency advocate intimidation, physical violence, unlaw- terrorism or other bring poli- political accomplish about or and or to ful acts methods word, writing, suggest by revolution, act or tical and did advocate or disorder, to, change public or or modification of resistance or Government, Constitution, the Commonwealth of and laws of means, subdivisions, by force, political other unlawful or violence or circulate, knowingly sell, have in and did or distribute and did publication circulation, possession or purpose written or syndi- teaching suggesting matter, advocating, printed change calism, sedition, or the or modification the Government or political or its subdivisions of the Commonwealth means, violence, become members of other unlawful and did force or or teaching, society persons assemblage, advo- and did assemble or sedition, suggesting syndicalism cating of criminal the doctrine change, or of the Government overthrow modification force, Kentucky by other means violence or unlawful Commonwealth dignity peace the Commonwealth. Judge. prior
MOYNAHAN, with such to their inter- violation vention herein. respectfully I dissent from the must provides opinion my 28 U.S.C. follows: rendered herein learned colleagues. may not “A court of United States grant stay proceed- seek this action ings express- except uncon- State have us declare K.R.S. *8 ly by Congress, enjoin authorized Act the to defendants stitutional and jurisdic- necessary in aid its plaintiffs, where prosecuting the McSure- Mulloy tion, protect its or effectuate ly, intervening to plaintiffs, and the judgments.” alleged Braden, and for an violation thereof. legislative history this statu- tory provision McSurelys the decided and cases undisputed that clearly charged thereunder indicate the desire Mulloy and were under arrest Congress prevent unseemly to con- the time with of said at violation statute intervening Fed- filed, and frontation between State this suit was charged contend plaintiffs, Braden, Courts. While eral were indicted 856 abrogated Douglas Jeannette, City In 319 principle been has this etc., Pfister, 877, 1324, 157, L.Ed. by et al. v. U.S. 63 87 S.Ct. Dombrowski Supreme 1116, 14 L.Ed.2d Court said: 85 S.Ct. U.S. reading case dis- of that a careful un- power to states “The reserved in lower that warrants issued closes provide for to der Constitution Magis- by a had dismissed Courts been in controversies the determination of was filed trate at the time suit may by fed- restricted their courts be “proceed- state there therefore no was only in obedience eral district courts ing” pending. in Dombrowski Moreover Congressional legislation in con- to Supreme at in footnote 2 said Court Judiciary formity Article of the to page 484, page 1119: at 85 S.Ct. by legis- Congress, its Constitution. lation, adopted policy, with “* * * (28 statute U.S.C. This statutory excep- certain defined well 2283) pre- predecessors do and its leaving tions, generally to the state against injunctions the institu- clude aris- the trial criminal cases courts proceedings, but tion of state court ing laws, re- under state only stays already suits insti- bar by any ques- federal view this Court (Emphasis.added.) tuted.” Hence, equity courts of tions involved. McSurelys had Here the discretionary their in the exercise of duly upon is- been arrested a warrant power policy this should conform to Courts; they exe- had sued State by refusing to interfere or em- as- been cuted case had bond proceedings in barrass threatened examining signed my opin- trial. exceptional state courts save in those ion in can alter no exercise semantics interposition cases which for the call pend- “proceeding” fact that there was a equity prevent irrep- of a court of “proceed- against them. A fortiori a injury im- arable which is clear and Bradens, ing” pending minent; equitable in- remedies the Pike since were indicted fringing independence of Jury prior inter- to their Grand -though they might otherwise states — be vention herein. given sought if be withheld —should slight grounds. inconsequential grant injunctive herein is relief To familiar rule that courts beyond facts
to extend Dombrowski equity ordinarily do not restrain crim- ignore totally thereof footnote prosecutions. person inal im- No (supra). prosecution good mune from faith reasonably may it be said Nor alleged for his criminal acts. im- Its granted injunctive process herein is minence, though even Court’s) (the jurisdiction” “in aid of guaranties, violation of constitutional argument equal could since ground equitable is not a relief involving vigor applied case be since the lawfulness or constitutional- upon a statute. constitutional attack ity of the statute or ordinance on may which the is based any of within does not come This case readily determined as in the criminal exceptions permissible the three injunction.” case as in a suit for an 2283) (28 and we U.S.C. § express pro- prohibited F.Supp. therefore Koota, In Zwickler v. enjoining the (decided thereof from State subsequent visions Dombrowski), proceeding. Judge Court Three East- confronted ern District New York power my opinion have no we Since very pre- with an issue similar to that Court, enjoin traditional State sented in the instant case said: comity principles between State *9 “The fact dictate that a case is within the should and Federal Courts adjudicatory exercising jurisdiction power of this court does we abstain from necessarily require power its herein. general rule and As a exercised. be court, mo- its own policy district discretion, tion, may, refuse in its ‘Especially it do so where should
act. to interfere powers invoked threatened with ” prosecutions court.’ in state may in the Courts raise court, examining (i. e. the Appeals) the and Court Circuit Court challenge of unconstitu- identical same here. tionality invoke which seek may aggrieved appeal Any party from Appeals of of the the decision Court Supreme States, exactly the same which is United remedy here. available in- with gravely concerned I am Portage, Pa., Ralph Talarigo, for J. Federal lower tendency
creasing plaintiff. orderly interfere Courts with- Diamond, Atty., by Courts sister State processes of our U. S. Vin- Gustave Colianni, therefor express Atty., mandate Pitts- A. Asst. U. out cent S. burgh, Pa., Supreme Court. defendant. the Com- dismiss therefore I would OPINION AND ORDER proceed in the case
plaint allow Courts. the State Judge. MARSH, District Secretary dismiss has moved to grounds action on the court over matter
lacks plaintiff fails to state a claim and that granted. upon can which relief Secretary support motion, urges (1) respect plaintiff’s applications most recent for disabil- two ity benefits, no final decision of Sec- SHULTZ, Plaintiff, Robert retary meaning exists within the of § 205(g) Security Act, of the Social Health, Secretary GARDNER, John W. 405(g) plaintiff is en- U.S.C. which Welfare, Defendant. Education judicial titled com- to obtain review 67-1226. Civ. A. No. mencing a civil action because no hear- upon applications; was held District Court United (2) that all and issues raised claims Pennsylvania. D.W. Complaint judicata be- are res April Secretary’s upon cause the final decision
plaintiff’s adjudi- prior applications two disability cated the same claims for plain- considered all relevant evidence of impairments during period tiff’s claimed. plaintiff’s We earlier dismissed civil seeking judicial
action No. 66-237 review Secretary’s upon decision two