U.S. Supreme Court JENKINS v. McKEITHEN, 395 U.S. 411 (1969) 395 U.S. 411

[Page 395 U.S. 411, 412]

or would be "injured" by the operation of the statute, and that the complaint failed to state a cause of action. A three-judge District Court dismissed the complaint, holding that Hannah v. Larche, 363 U.S. 420, foreclosed relief on the constitutional issue, and that the other allegations of the complaint raised merely potential defenses to assertedly pending criminal charges. Held: The judgment is reversed and remanded. Pp. 413-433.

286 F. Supp. 537, reversed and remanded.

MR. JUSTICE MARSHALL, joined by THE CHIEF JUSTICE and MR. JUSTICE BRENNAN, concluded that:

1. Appellant has standing to challenge the statute's constitutionality. Pp. 421-425.

(a) The allegations of the complaint indicate that the Commission and those acting in concert with it have carried out a series of acts designed to injure appellant in several ways, and it is thus clear that appellant has sufficient adversary interest to insure proper presentation of issues facing the court. Pp. 423-424.

(b) Appellant has sufficiently alleged a nexus between the official action challenged and his legally protected interest, since he has claimed that the very purpose of the Commission is to find him and persons like him guilty of violating criminal laws without trial or procedural safeguards, and to publicize those findings, and thus the Commission's alleged actions will substantially affect him. P. 424.

(c) In the circumstances of this case, where appellant claims a concerted attempt to brand him a criminal without trial and has claimed that he has vainly tried to secure prosecution of charges against him, his opportunity to defend criminal prosecution is not sufficient to deprive him of standing to challenge the statute. Pp. 424-425.

2. Appellant has alleged a cause of action which may make declaratory and injunctive relief appropriate and is entitled to go to trial on his allegations concerning the Commission and that its procedures violate the Due Process Clause of the Fourteenth Amendment. Pp. 425-431.

(a) Hannah v. Larche, supra, is reaffirmed. The functions of the Civil Rights Commission, whose procedures were upheld in that case, were primarily investigatory and for legislative and executive purposes, whereas the Commission in this case is limited to criminal law violations, and allegedly exercises a role very much akin to making an official adjudication of criminal[BAD TEXT]

[Page 395 U.S. 411, 414]

a body called the Labor-Management Commission of Inquiry. La. Rev. Stat. Ann. 23:880.1-23:880.18 (Supp. 1969). The stated purpose of this Commission is "the investigation and findings of facts relating to violations or possible violations of criminal laws of the state of Louisiana or of the United States arising out of or in connection with matters in the field of labor-management relations . . . ." Act No. 2, Preamble, [1967 Extra. Sess.] La. Acts 3. Appellant, a member of a labor union, filed this suit in the District Court for the Eastern District of Louisiana challenging the constitutionality of Act No. 2 and of certain actions taken by state officials in the administration of the Act and otherwise. He sought both declaratory and injunctive relief. A three-judge court was convened and that court ultimately granted appellees' motion to dismiss the complaint. Jenkins v. McKeithen, 286 F. Supp. 537 (D.C. E. D. La. 1968). We noted probable jurisdiction of an appeal brought under 28 U.S.C. 1253.[Footnote 1] We reverse.

Since the case was decided on a motion to dismiss, a rather detailed examination of the structure of the Act and of the allegations of the complaint is necessary. I. The impetus for the formation of the Commission was stated in the preamble of the Act. [1967 Extra. Sess.] La. Acts 2. It cited "unprecedented conditions" in the labor relations of the construction industry, and it particularly noted certain "allegations and accusations of violations of the state and federal criminal laws which should be thoroughly investigated in the public interest . . . ." Id., at 3. The additional investigative facilities of the Commission were thought necessary to

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"supplement and assist the efforts and activities of the several district attorneys, grand juries and other law enforcement officials and agencies . . . ." Ibid.

The Commission is composed of nine members appointed by the Governor. La. Rev. Stat. Ann. 23:880.1 (Supp. 1969). It is empowered to act only upon referral by the Governor when, in his opinion, there is substantial indication that there are or may be "widespread or continuing violations of existing criminal laws" affecting labor-management relations. La. Rev. Stat. Ann. 23:880.5 (Supp. 1969). Upon referral by the Governor, the Commission is to proceed by public hearing to ascertain the facts pertaining to the alleged violations. La. Rev. Stat. Ann. 23:880.6 (Supp. 1969). In order to carry out this function, the Commission has the power to make appropriate rules and regulations, to employ attorneys, investigators, and other staff members, to compel the attendance of witnesses, to examine them under oath, and to require the production of books, records, and other evidence. La. Rev. Stat. Ann. 23:880.8 (Supp. 1969). It can enforce its orders by petition to the state courts for contempt proceedings. La. Rev. Stat. Ann. 23:880.9 (Supp. 1969).

The scope of the Commission's investigative authority is explicitly limited by the Act to violations of criminal laws. "The commission shall have no power, authority or jurisdiction to investigate, hold hearings or seek to ascertain the facts or make any reports or recommendations on any of the strictly civil aspects of any labor problem . . . ." La. Rev. Stat. Ann. 23:880.6 B (Supp. 1969).[Footnote 2] Further, the Commission has no power to

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and criminal actions against appellant be permanently restrained, and that other unspecified relief be granted.

Temporary relief was denied by the District Court and a three-judge court was impanelled to hear the case. Appellees answered and moved to dismiss. They alleged that appellant lacked standing to question the constitutionality of Act No. 2 and that the complaint failed to state a cause of action. Thereafter, appellant filed a "Supplemental and Amending Petition" in which he alleged, in some detail, that appellees had continued the course of action described in the original complaint. After a hearing, the court dismissed the complaint. Jenkins v. McKeithen, supra.

The court, relying largely on the opinion of the Louisiana Supreme Court in Martone v. Morgan, 251 La. 993, 207 So.2d 770, appeal dismissed, 393 U.S. 12 (1968) (petition for rehearing pending), held that this Court's decision in Hannah v. Larche, 363 U.S. 420 (1960), was dispositive of the issue of the constitutionality of the Act. The court further ruled that appellant had not stated any other claim for relief under 1981, 1983, and 1988 of Title 42, United States Code. Rather, the court held that the other matters sought to be raised in the complaint were merely potential defenses to the pending criminal charges and that appellant had not alleged any basis for restraining prosecution of those charges. Finally, the court ruled that appellant's suit was not a proper class action under Rule 23 of the Federal Rules of Civil Procedure.[Footnote 3] The court did not explicitly rule on the issue of whether appellant lacked standing to challenge the Act.

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the complaint otherwise states a cause of action under 42 U.S.C. 1981, 1983, and 1988. III. We are met at the outset with appellees' assertion that appellant lacks standing to attack the constitutionality of Act No. 2. This argument is based in part upon certain allegations in the complaint that Act No. 2 is unconstitutional because it denies to "a person compelled to appear before . . . [the] Commission" the right to effective assistance of counsel, the right of confrontation, and the right to compulsory process for the attendance of witnesses. Since appellant did not allege in his complaint that he was called to appear before the Commission or that he expected to be called, appellees assert that he lacks standing to assert the denial of rights to those who do appear. See, e. g., Tileston v. Ullman, 318 U.S. 44 (1943). Further, appellees argue that appellant lacks standing because he cannot demonstrate that he has been, or will be, "injured" by the operation of the challenged statute. We cannot agree.

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actions with respect to appellant. The issue is thus whether those allegations are sufficient to give appellant standing to challenge the constitutionality of the Act creating the Commission and the actions taken by the Commission under authority of that Act. We think that they are.

The concept of standing to sue, as we noted in Flast v. Cohen, supra, "is surrounded by the same complexities and vagaries that inhere in [the concept of] justiciability" in general. 392 U.S., at 98. Nevertheless, the outlines of the concept can be stated with some certainty. The indispensable requirement is, of course, that the party seeking relief allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions . . . ." Baker v. Carr, 369 U.S. 186, 204 (1962); see Flast v. Cohen, supra; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151 (1951) (concurring opinion). In this sense, the concept of standing focuses on the party seeking relief, rather than on the precise nature of the relief sought. See Flast v. Cohen, supra, at 99-100. The decisions of this Court have also made it clear that something more than an "adversary interest" is necessary to confer standing. There must in addition be some connection between the official action challenged and some legally protected interest of the party challenging that action. See Flast v. Cohen, supra, at 101-106.

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The appellants in Hannah were persons subpoenaed to appear before the Civil Rights Commission in connection with complaints about deprivations of voting rights. They objected to the Civil Rights Commission's rules about nondisclosure of the complainants and about limitations on the right to confront and cross-examine witnesses. This Court ruled that the Commission's rules were consistent with the Due Process Clause of the Fifth Amendment. The Court noted that

"`[d]ue process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. . . . Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account." 363 U.S., at 442.

In rejecting appellants' challenge to the Civil Rights Commission's procedures, the Court placed great emphasis on the investigatory function of the Commission:

"[I]ts function is purely investigative and factfinding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action." 363 U.S., at 441.

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The Court noted that any adverse consequences to those being investigated, such as subjecting them to public opprobrium, were purely conjectural, and, in any case, were merely collateral and "not . . . the result of any affirmative determinations made by the Commission . . . ." 363 U.S., at 443. Morgan v. United States, 304 U.S. 1 (1938), Joint Anti-Fascist Refugee Committee v. McGrath, supra, and Greene v. McElroy, supra, were distinguished on the ground that "[t]hose cases . . . involved . . . determinations in the nature of adjudications affecting legal rights." 363 U.S., at 451.

We reaffirm the decision in Hannah. In our view, however, the Commission in the present case differs in a substantial respect from the Civil Rights Commission and the other examples cited by the Court in Hannah. It is true, as the Supreme Court of Louisiana has held, Martone v. Morgan, supra, that the Commission does not adjudicate in the sense that a court does, nor does the Commission conduct, strictly speaking, a criminal proceeding. Nevertheless, the Act, when analyzed in light of the allegations of the complaint, makes it clear that the Commission exercises a function very much akin to making an official adjudication of criminal culpability. See Joint Anti-Fascist Refugee Committee v. McGrath, supra.

The Commission is limited to criminal law violations; the Act explicitly provides that the Commission shall have no jurisdiction over civil matters in the labor-management relations field. Indeed, the Commission is even limited to certain types of criminal activities.[Footnote 4] As noted above, nothing in the Act indicates that the Commission's findings are to be used for legislative purposes. Rather, everything in the Act points to the fact that it is concerned only with exposing violations of criminal laws by specific individuals. In short, the Commission very

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clearly exercises an accusatory function; it is empowered to be used and allegedly is used to find named individuals guilty of violating the criminal laws of Louisiana and the United States and to brand them as criminals in public.

Given this view of the purpose of the Labor-Management Commission of Inquiry, we agree with Justice Frankfurter, concurring in the result in Hannah v. Larche:

"Were the [Civil Rights] Commission exercising an accusatory function, were its duty to find that named individuals were responsible for wrongful deprivation of voting rights and to advertise such finding or to serve as part of the process of criminal prosecution, the rigorous protections relevant to criminal prosecutions might well be the controlling starting point for assessing the protection which the Commission's procedure provides." 363 U.S., at 488.

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evidence and fails to provide standards of guilt or innocence. He also alleges that the Act deprives him of effective assistance of counsel. We have, however, said enough to demonstrate that appellant has alleged a cause of action for declaratory and injunctive relief. Whether the Due Process Clause requires that the Commission provide all the procedural protections afforded a defendant in a criminal prosecution, or whether something less is sufficient, are questions that we think should be initially answered by the District Court on remand. As we have noted, "[w]hether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors." Hannah v. Larche, supra, at 442. We think it inappropriate to rule on the extent to which the Commission's procedures may run afoul of the Due Process Clause on the basis of the record before us, barren as it is of any established facts. That issue is best decided in the first instance by the District Court in light of the evidence adduced at trial.

We do not mean to say that this same analysis applies to every body which has an accusatory function. The grand jury, for example, need not provide all the procedural guarantees alleged by appellant to be applicable to the Commission. As this Court noted in Hannah, "the grand jury merely investigates and reports. It does not try." 363 U.S., at 449. Moreover, "[t]he functions of that institution and its constitutional prerogatives are rooted in long centuries of Anglo-American history." Id., at 489-490 (Frankfurter, J., concurring in the result). Finally the grand jury is designed to interpose an independent body of citizens between the accused and the prosecuting attorney and the court. See Stirone v. United States, 361 U.S. 212, 218 (1960); Ex parte Bain, 121 U.S. 1, 11 (1887); Hannah v. Larche, supra, at 497-499 (dissenting opinion). Investigative bodies such as the Commission have no claim to specific

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involving merely potential defenses to the criminal charges assertedly pending. In the exercise of its discretion and because the issues were "intertwined" with the issue of the constitutionality of the Act, the court passed upon the question of whether appellant had alleged a cause of action for declaratory and injunctive relief. Relying in part on its determination that the Act was constitutional, the court held that appellant had not stated a claim for declaratory or injunctive relief and that appellant's remedy was to defend any criminal prosecutions then pending or that might be brought. Jenkins v. McKeithen, supra, 286 F. Supp., at 542-543. Whether the court will take the same view of the propriety of passing on the question or of the merits in light of our holding and the evidence adduced at trial cannot be determined at this time. Accordingly, we think that issue should be left open for reconsideration on remand.

The judgment of the court below is reversed and the cause is remanded for further proceedings.

It is so ordered.

MR. JUSTICE DOUGLAS concurs in the result for the reasons stated in his dissenting opinion in Hannah v. Larche, 363 U.S. 420, 493-508 (1960).

FootnotesFootnote 1 The constitutionality of the Act was upheld in Martone v. Morgan, 251 La. 993, 207 So.2d 770, appeal dismissed, (1968) (petition for rehearing pending).

Footnote 2 "[I]ts power, authority or jurisdiction shall in no case extend to (1) any matter which is solely an `unfair labor practice' or an `unfair employment practice' or a legitimate labor dispute under the provisions of any federal or state law; or (2) any matter which relates to legitimate economic issues arising between labor and

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any of the procedural protections that the Bill of Rights provides. The Louisiana law is reminiscent of the old Parliamentary and Ecclesiastical Commission trials which took away the liberty of John Lilburne and his contemporaries without due process of law - that is, without giving them the benefit of a trial in accordance with the law of the land. For these reasons I believe that the Louisiana law denies due process of law.

MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.

Swept up in a constitutional revolution of its own making, the Court has a tendency to lose sight of the principles that have traditionally defined and limited its role in our political system. Constitutional adjudication is a responsibility we cannot shirk. But it is a grave and extraordinary process, one of last resort. And when it cannot legitimately be avoided, it is a function that must be performed with the utmost circumspection and precision, lest the Court's opinions emanate radiations which unintentionally, and spuriously, indicate views on matters we have not fully considered.

Over the years, the Court has evolved a number of principles designed to assure that we act within our proper confines. Perhaps the most fundamental of these is that we adjudicate only when, and to the extent that, we are presented with an actual and concrete controversy. Today, in its haste to make new constitutional doctrine, the Court turns this principle on its head, as it attempts to create a controversy out of a complaint which alleges none. With respect, I must dissent. I. Only last Term, in Flast v. Cohen, 392 U.S. 83 (1968), the Court reaffirmed the proposition that "when standing [to sue] is placed in issue in a case, the question is

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daily in the offices of state and federal prosecuting attorneys. In both instances, the responsible officials proceed by interrogating persons with knowledge of possible violations of the criminal law. If the prosecutor believes that an individual has committed a crime, he files an information or seeks a grand jury indictment. When the Commission reaches a similar conclusion, it turns its intelligence over to a prosecutor so that he may initiate the formal criminal process.

For obvious reasons, it has not been seriously suggested that a "person under investigation" by a district attorney has any of the "adjudicative" constitutional rights at the investigative stage.4 These rights attach only after formal proceedings have been initiated. Nor, of course, does one under investigations have a constitutional right that the investigations be conducted in secrecy, or that the official keep his plans to prosecute confidential. The decision whether or not to disclose these matters rests in the sound discretion of the responsible public official. Various factors, such as the fear that a suspect will flee or the concern for obtaining an unbiased jury when the matter comes to trial, may militate in favor of secrecy. On the other hand, an appropriate disclosure of a pending investigation may bring forth witnesses and evidence, and serves a proper ancillary function in keeping the public informed.[Footnote 5]

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however, it would do well to heed carefully its own warning in Hannah, that such a requirement "would make a shambles of the investigation and stifle the agency in its gathering of facts." 363 U.S., at 444. Such a requirement would not only incapacitate state criminal investigatory bodies at a time when their need cannot be gainsaid, but would cast a broad shadow of doubt over the propriety of long-standing procedures employed by many federal agencies - procedures which less than a decade ago the Court believed to be proper and necessary.

[Footnote 1] As the prevailing opinion notes, ante, at 420, and n. 3, appellant does not assign as error the District Court's holding that this was not a proper class action.

[Footnote 2] And, of course, there is no suggestion that appellant ever requested that the Commission accord him any of the rights of whose absence he complains.

[Footnote 3] This inference is supported by the Report of the Labor-Management Commission of Inquiry, filed in this Court, which, other than mentioning the litigation challenging the Commission, nowhere refers to this appellant.

[Footnote 4] Of course, a person called upon to participate in the investigation, e. g., by answering questions, may have relevant rights at this stage. Cf., e. g., Mancusi v. DeForte, (1968). But appellant does not intimate, and the majority does not assume, that he has been or will be subpoenaed to testify or produce documents.

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