Cole v. Trustees of Columbia University in City of New York, 300 F.Supp.

1026 (D.C.N.Y. 1969)

United States District Court

S.D. New York.

Lewis COLE, Eleanor Raskin, Thomas D. Hurwitz, Robert H. Roth, Columbia

Chapter of Students for a Democratic Society, suing on their own behalf and on behalf

of all other individuals and/or organizations similarly situated, Plaintiffs,

v.

The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK,

Defendants.

No. 69 Civ. 2355.

June 4, 1969.

Motion by plaintiffs for order restraining university trustees from

complying with subpoena issued by Senate subcommittee. The District Court,

Tenney, J., held that members of association, which was involved in campus

disorders, were not entitled to injunction against trustees' compliance

with subpoena, issued by subcommittee which was authorized to study riots,

etc., where there was no criminal proceeding or contempt proceeding or

threat thereof against association, resolution and subpoena were not on

their facts subject to attack as abridging free expression or discouraging

protected activities, and association had no right to possession of

records sought.

Motion denied and complaint dismissed.

*1027

Kunstler & Kunstler, Lubell & Lubell, New York City, Nancy Stearns,

Newark, N.J.; William M. Kunstler, Arthur Kinoy, David G. Lubell, Jeremiah

S. Gutman, New York City, of counsel.

Thacher, Proffitt, Prizer, Crawley & Wood, New York City, for defendants;

John W. Wheeler, New York City, of counsel.

Robert M. Morgenthau, U.S. Atty., for Southern District of New York, New

York City, for the Government; Michael D. Hess, Asst. U.S. Atty., New York

City, of counsel; David Katsky, Asst. U.S. Atty., New York City, on brief.

OPINION

TENNEY, District Judge.

This is a motion brought on by the plaintiffs, Columbia University Chapter

of Students for a Democratic Society, and certain of its members, suing on

behalf of other individuals and/or organizations similarly situated, for

an order, pursuant to Rule 65(a), (b) of the Federal Rules of Civil

Procedure, restraining the defendants, The Trustees of Columbia University

(hereinafter referred to as 'the Trustees'), from disclosing, revealing or

delivering any books, records, reports, correspondence, membership lists,

associational information or other documents specified in a subpoena duces

tecum served upon the Trustees by the Permanent Subcommittee on

Investigations of The Committee on Government Operations of the United

States Senate. The Trustees, rather than risk contempt of Congress, for

failure to comply with this subpoena issued by the Subcommittee, intend to

release the material requested on June 5, 1969.

The underlying cause of action seeks a declaratory judgment, pursuant to

Title 28, United States Code, Section 2201, declaring the subpoena duces

tecum[n. 1] *1028 served upon Columbia University unconstitutional and

void, and a permanent injunction prohibiting the Trustees from complying

therewith. [n. 2] Plaintiffs allege jurisdiction of this court under Title 28, United

States Code, Sections 1331, 1332, 1343(3)(4), Title 42, United States Code,

Sections 1981 et seq., and the First, Fourth, Fifth and Ninth Amendments

to the Constitution of the United States.

Briefly, as background to the present litigation, Students for a

Democratic Society (hereinafter referred to as 'SDS') is an unincorporated

association consisting of young people whose views may be considered to

rest at the left of the political spectrum. They seek a radical,

democratic program, the methods of which embody their vision, that is, a

vision of a democratic society '* * * where at all levels the people have

control of the decisions which affect them and the resources on which they

are dependent. * * *' (See Complaint at 2, Exh. B, annexed to Affidavit of

William M. Kunstler, dated June 2, 1969.) In furtherance of the Society's

objectives, its chapters and members have often been the focal point of

the expression of opposition to certain foreign and domestic policies of

the United States Government. In this respect, and in accordance with its

aims and purposes, the organization has both directly and indirectly

participated in campus disorders which have resulted from the spread of

student unrest.

On February 17, 1969, during the First Session of the 91st Congress, the

Senate passed Resolution 26 authorizing the Committee on Government

Operations or any subcommittee thereof, from February 1, 1969 through

January 31, 1970, to:

(1) make investigations into the efficiency and economy of operations of

all branches of the Government, including the improper expenditure of

Government funds in transactions between Government personnel and

corporations or individuals. Cong.Rec.: S.Res. 26 1, 91st Cong., 1st Sess.

(1969);

(2) make a full and complete study and investigation of crime and

lawlessness within the United States which affects the national health,

welfare and safety. Cong.Rec.: S.Res. 26 4, 91st Cong., 1st Sess. (1969);

(3) '* * * Make a full and complete study and investigation of riot,

violent disturbances of the peace, vandalism, civil and criminal disorder,

insurrection, the commission of crimes in connection therewith, the

immediate and long-standing causes, the extent and effect of such

occurrences and crimes, and measures necessary for their immediate and

long-range prevention and for the preservation of law and order and to

insure domestic tranquility within the United States.' Cong.Rec.: S.Res.

26 5, 91st Cong., 1st Sess. (1969).

(4) report to the Senate by January 31, 1970 and '* * * if deemed

appropriate, *1029 include in its report specific legislative recommendations.'

Cong.Rec.: S.Res. 26 6, 91st Cong., 1st Sess. (1969).

It should be noted as well that the Legislative Reorganization Act of

1946, ch. 753, tit. I, 60 Stat. 812, provides that:

'(a) Each standing committee of the Senate, including any subcommittee of

any such committee, is authorized to hold such hearings * * * (and) to

require by subpoena or otherwise the attendance of such witnesses and the

production of such correspondence, books, papers, and documents * * * as

it deems advisable * * *.'

Considering the complexity of the issues presently before this Court and

the limited amount of time within which a determination herein must be

made, I shall not be able to resolve all the problems which this

litigation raises nor accompany those issues which I intend to rule on

with the degree of analysis which would be appropriate under less pressing

circumstances.

Briefly, with regard to jurisdiction, although this action has been

framed as one to enjoin certain individuals from complying with the terms

of a Congressional subpoena, it camouflages its essence, that is, one

seeking to affirmatively quash a subpoena issued by the authority of a

Congressional Committee, and in which the members of the Committee

itself are most appropriately parties defendant. Needless to say, it is

fundamental that before this Court could quash a subpoena, it must have

jurisdiction over the persons or parties whom it would seek to affect or

enjoin. It, therefore, boggles the imagination to think that plaintiffs

herein could reasonably expect this Court to quash a Congressional

subpoena where not one member of the Committee was served with a copy

of the motion, nor where the Committee was not present or represented in

court for the purpose of conferring jurisdiction. In re Motion to Quash

Subpoenas and Vacate Service, 146 F.Supp. 792, 794 (W.D.Pa.1956).

Even assuming jurisdiction over this matter, however, the action

is properly brought in the District of Columbia. It is established that in

cases where jurisdiction is not solely founded on diversity of

citizenship, the defendants' residence is the principal consideration for

the purposes of venue. 28 U.S.C. 1391 (Supp.1969). More specifically,

where an action is primarily directed against a Senate subcommittee, whose

interests would be most directly affected by a determination therein, it

is in the interest of a centralized disposition of matters of national

concern that the site of the litigation should be in the District of

Columbia. More importantly, however, then District Judge Irving R.

Kaufman, presently of the Court of Appeals for the Second Circuit, noted

in Fischler v. McCarthy, 117 F.Supp. 643 (S.D.N.Y.), aff'd, 218 F.2d 164

(2 Cir., 1954), that it is undesirable to expose a subcommittee of the

Senate to suits in various districts around the country. To allow

otherwise would seriously impair the work of the Government. If this

Court, therefore, were to sanction the bringing of suits against the

recipients of Congressional subpoenas in the districts of their residence

rather than against the Subcommittee itself in the district of its

residence, it would be effectively thwarting the sound reasoning as set

forth in Fischler, supra. Additionally, as an aside, it should be

mentioned that where in Fischler the subpoena was returnable in New York,

in this case the subpoena duces tecum is returnable in Washington, D.C.,

which under the present state of facts, makes a finding of proper venue in

the District of Columbia even more compelling.

Turning to the issue which I find to be of paramount importance in

reaching my determination herein, that is, the doctrine of the separation

of powers, a district court must exercise extreme caution not to encroach

upon legislative functions, and, accordingly, must not assume jurisdiction

over any matter which does not amount to a justiciable controversy. It is

apparent *1030 from the present posture of this case that the parties

presently seeking the injunction are neither threatened by a taking of

property belonging to them nor with any infliction of punishment, such as a

Congressional citation for contempt. This Court will not attempt to protect

the plaintiffs from a danger yet unknown. Pauling v. Eastland, 109

U.S.App.D.C. 342, 288 F.2d 126, 129, cert. denied, 364 U.S. 900, 81 S.Ct.

233, 5 L.Ed.2d 194 (1960); In re Motion to Quash Subpoenas and Vacate

Service,supra 146 F.Supp. at 795; Fischler v. McCarthy, supra, 117 F.Supp.

at 649-650. Needless to say, the judiciary would construct an

insurmountable barrier in the path of every Congressional investigating

committee if it were to allow the bona fides of the legislative

authorization to be challenged in a court of law by any person who could

conceivably be affected by the testimony elicited or documents produced at

a Senate hearing.

Even assuming, arguendo, that the questions presented herein were

ripe for litigation, it would be incumbent upon the plaintiffs,

prerequisite to obtaining a hearing, to make a substantial factual showing

that the Congressional investigation is unrelated to any proper

legislative function in that it is beyond the powers conferred upon

Congress by the Constitution or that in authorizing the investigation by

the Subcommittee, the Senate failed to spell out the Committee's

jurisdiction and purpose with sufficient particularity to insure that

compulsory process was only in furtherance of the legislative purpose.

Watkins v. United States, 354 U.S. 178, 198-201, 77 S.Ct. 1173, 1 L.Ed.2d

1273 (1957). Absent a substantial factual showing in this regard, it is

not the business of a district court to investigate the bona fides

underlying legislative motives.[n. 3] Having thoroughly considered the

papers submitted by the plaintiffs in this cause, it is apparent that they

contain mere conclusory allegations unsupported by any factual

elaboration.

Plaintiffs, in support of their motion, have referred this Court to the

following cases: 1) Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14

L.Ed.2d 22 (1965); 2) N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9

L.Ed.2d 405 (1963); 3) Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct.

1203, 1 L.Ed.2d 1311 (1957); 4) McSurely v. Ratliff, 398 F.2d 817 (6th

Cir. 1968); 5) Wolff v. Selective Service Local Bd. No. 16, 372 F.2d 817

(2d Cir. 1967); 6) Carmichael v. Allen, 267 F.Supp. 985 (N.D.Ga.1967); and

7) Baker v. Bindner, 274 F.Supp. 658 (W.D.Ky.1967). A brief review of

these cases, however, reveals to this Court points sufficiently

distinguishable from the instant application to compel a finding of their

inapplicability herein.

The Supreme Court, in Dombrowski, was faced with an attack upon a

Louisiana statute which sought to proscribe certain forms of expression.

In answer to appellants' suit therein for federal court injunctive and

declaratory relief to restrain appellees from prosecution or threatening

to prosecute them under this statute. Louisiana contended that it would be

inappropriate for the federal district court to interfere with the orderly

processing of state criminal prosecutions since, it was alleged, the want

of constitutionality of the Louisiana statute could be raised as a defense

to any criminal prosecution. A three-judge District Court dismissed the

complaint for failure to state a claim upon which relief could be granted.

Thereafter, appellants were indicted under the state statute. In reversing

the decision of the three-judge court, the Supreme Court noted that the

mere possibility of an initial *1031 erroneous application of constitutional

standards by a state court will not ordinarily constitute irreparable injury

warranting federal interference with orderly state proceedings. But the Court

found that defense of the state's criminal prosecution would not assure

adequate vindication of constitutional rights, and that a substantial loss or

impairment of freedoms of expression would occur if appellants must await

the state court's disposition, and ultimate review by the Supreme Court of

any adverse determination. Finding that a chilling effect upon First

Amendment rights might result from such prosecution regardless of its

prospects of success or failure, the Court held the abstention doctrine

inappropriate for cases where, unlike Douglas v. City of Jeannette, 319

U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), statutes are justifiably

attacked on their face as an excessively broad attempt to regulate

expression, or as applied for the purpose of discouraging protected

activities. As the Court had previously noted in Douglas, supra at 163, 63

S.Ct. 877, courts of equity should in the exercise of their discretionary

powers abstain from enjoining state criminal prosecutions save in those

exceptional cases where such action is necessary to prevent irreparable

injury which is clear and imminent.

The instant application does not reveal circumstances wherein either the

Senate Resolution which authorized this Subcommittee's investigation or

the subpoena duces tecum has a sufficiently chilling effect upon First

Amendment rights which would result in irreparable injury that can be

considered clear and imminent. There has been no institution of criminal

proceedings or the threat thereof against SDS alleged herein, as there had

been in Button, Carmichael and Baker. Neither the Senate Resolution nor

the subpoena itself can be attacked on their face as abridging free

expression or as applied for the purpose of discouraging protected

activities.

As Judge Medina of the Court of Appeals for the Second Circuit noted in

Wolff, supra, 372 F.2d at 823, federal courts will not hear a cause 'when

the action complained of has not caused or is not certain to cause injury

to the complaining party'. Judge Medina, however, found the abstention

doctrine inappropriate therein since the effect of Wolff's

reclassification itself from II-S to I-A as a result of his participation

in a demonstration to protest American involvement in Viet Nam, was to

immediately curtail the exercise of First Amendment rights. I do not find

that either the Senate Resolution or the subpoena itself has this effect.

In Sweezy, petitioner was summoned to appear before the Attorney General

of the State of New Hampshire, who had been made a one-man legislative

investigating committee by the New Hampshire Legislature. During the

course of the inquiry, petitioner declined to answer several questions on

the grounds that they were not pertinent to the matter under inquiry and

that they infringed upon an area protected under the First Amendment. He

was thereupon adjudged in contempt by the state court and ordered

committed to the county jail until purged of the contempt. The New

Hampshire Supreme Court affirmed the order. The Supreme Court, in

reversing, found nothing to connect the questioning of petitioner with the

fundamental interest of the State in preventing the forcible overthrow of

its government. It therefore followed that the use of the contempt power

was not in accordance with the due process requirement of the Fourteenth

Amendment to the Constitution. SDS, however, which has not been called

upon to produce its records, which has not been found in contempt for any

failure to comply with a Congressional subpoena and which has had none of

its constitutional rights interfered with as the result of the subpoena

duces tecum served upon the Trustees is not in a position to rely upon

Sweezy. In this regard, it must be noted that the documents which were the

subject of the subpoenas duces tecum in McSurely, were the property*1032

of the petitioners therein. These documents, which had been seized from

the McSurelys in aid of a prosecution under an unconstitutional statute,

had been retained by the district court which pursuant to a Congressional

subpoena had ordered the parties to the action and officers of the court

to cooperate with the Senate Committee in making available such material

as the Committee considered pertinent. The Court of Appeals for the Sixth

Circuit in reversing the order of the district court, found that the right

of the court to retain possession of the seized documents had expired when

under the doctrine of Dombrowski, the district court declared the statute,

in connection with which the documents were seized, unconstitutional. This

case is clearly distinguishable in that SDS, like the district court in

McSurely, has no right to possession of the records which are the subject

matter of the subpoena duces tecum.

Accordingly, and for the above-stated reasons, the within motion is in all

respects denied and the complaint dismissed.

So ordered.

n. 1. Pg. 2. The body of the subpoena requires the Trustees to:

'* * * produce any and all records for the period from January 1, 1968

to the present date showing the identity of students or other persons or

organizations who took part in the seizure of Columbia University

buildings or parts thereof without the permission of university

authorities, as well as records showing the identity of officers and

faculty advisers of Columbia University student organizations including

Columbia University Students for a Democratic Society, Students for a

Restructured University, Student Afro-American Society, Hamilton Hall

Steering Committee. Also records showing the extent and nature of

assistance of any type rendered during this period of time by any agency

of the United States Government or by any legal entity exempt by United

States law from taxation, to any student or other person whose name is

provided in compliance with the terms of this subpoena.'

n. 2. Pg. 2. Although plaintiffs have attempted by way of Rule 15(a) of the

Federal Rules of Civil Procedure to add, as a matter of right, as parties

defendant to this action, John L. McClellan, Chairman of the Subcommittee,

Henry M. Jackson, Sam J. Ervin, Jr., Edmund S. Muskie, Abraham Ribicoff,

Robert P. Griffin, Karl E. Mundt, Charles A. Percy and Jacob Javits, the

members thereof, and Jerome S. Adlerman and Donald F. O'Donnell, General

Counsel and Chief Counsel of the Subcommittee, respectively, this Court

has no jurisdiction over any of the above-named individuals in that none

of them has been served with process, nor has any one been authorized to

appear for them.

n. 3. Pg. 9. Plaintiffs' reliance on Cameron v. Johnson, 381 U.S. 741, 85

S.Ct. 1751, 14 L.Ed.2d 715 (1965), and 390 U.S. 611, 88 S.Ct. 1335, 20

L.Ed.2d 182 (1968), for the proposition that the facts of this case

warrant the granting of a hearing is ill-founded inasmuch as in the

present case the plaintiffs are not facing prosecution herein under any

statute alleged to be unconstitutional. Additionally, plaintiffs have

alleged no facts to support their allegation of harassment.