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DASH v. MITCHELL

February 7, 1972

Samuel DASH, Chairman, et al.,
v.
Hon. John N. MITCHELL, Attorney General of the United States, et al.



The opinion of the court was delivered by: MACKINNON

The present case is an action seeking a declaratory judgment that the so-called preventive detention provisions of the District of Columbia Court Reform and Criminal Procedure Act of 1970 *fn1" are unconstitutional, and a permanent injunction against their enforcement. The preventive detention provisions, specifically D.C. Code §§ 23-1322 and 23-1323 (Supp. IV, 1971), are asserted to be unconstitutional on their face and void as violative of the Fifth, Sixth, and Eighth Amendments and Articles I and III of the United States Constitution. Because a permanent injunction was sought, a three-judge district court was convened pursuant to 28 U.S.C. § 2282 (1970).

The plaintiffs have filed a motion for summary judgment in their favor, and the defendants have filed motions to dismiss the amended complaint. Since we have concluded that for various reasons relating to standing to sue, ripeness and mootness -- reasons which are jurisdictional in nature -- the amended complaint must be dismissed, we do not reach the actual merits of the controversy.

 I.

 For purposes of resolving certain of the questions of standing to sue which must be decided, a number of the plaintiffs may conveniently be treated as a group. First, there are the individual trustees of the Public Defender Service of the District of Columbia, set forth in paragraph 3 of the amended complaint, *fn2" suing on behalf of the Defender Service. Second, there are the Washington Urban League, Inc. and the American Civil Liberties Union Fund of the National Capital Area, Inc., set forth in paragraphs 7 and 8 of the amended complaint. All of these plaintiffs will hereafter be referred to together as the "organizational plaintiffs."

 The allegations of the amended complaint state that the plaintiffs in general sue as representatives of a class under Fed. R. Civ. P. 23 which "consists of all persons subject to pretrial detention pursuant to the pretrial detention provisions of the District of Columbia Court Reform and Criminal Procedure Act of 1970 . . ." *fn3" There are no allegations anywhere in the amended complaint which seek to confer on the organizational plaintiffs any status other than the class representational one just referred to. For reasons to be explained presently, we have concluded that under the mantel of this particular status, the precise allegations of this amended complaint fail to set out any "injury in fact" to the organizational plaintiffs. They therefore have no standing to maintain the present suit.

 All of the allegations of the amended complaint which relate to the harm purportedly occasioned by the preventive detention provisions speak directly in terms of harm to those persons -- members of the class sought to be represented -- who are actually or potentially subject to preventive detention. *fn4" There simply are no allegations that the organizational plaintiffs as organizations are harmed in any way, shape or fashion. Compare Protestants and Other Americans United for Separation of Church and State v. Watson, 132 U.S. App. D.C. 329, 407 F.2d 1264 (1968). However many uncertainties there may be as to certain aspects of the federal law of standing, there is no uncertainty as to the requirement that a plaintiff, in order to have standing, must allege that he himself suffers some "injury in fact" by reason of the action sought to be challenged. Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 607 (1968). Injury in fact is what the Supreme Court has thought imparts that "adversary context" *fn5" to litigation required by the "case or controversy" clause of Article III of the Constitution. See Association of Data Process Service Organizations v. Camp, 397 U.S. 150, 152-154, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 164, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970); Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Where, as in the present case, the allegations of a complaint establish a plaintiff in a strictly representational status, and allege injury only to members of the class sought to be represented -- an injury not shared in by the representational plaintiff -- the representational plaintiff plainly has no standing under Article III.

 In support of their standing, the organizational plaintiffs rely principally on Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) and Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131 (1915). From these cases they would have us conclude that they enjoy a "derivative" standing as a consequence of their "professional relationship" *fn6" to persons actually or potentially subject to the provisions of the preventive detention statute. Those cases, however, are easily distinguishable from the present case.

 In Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), it was held that a physician could assert the constitutional rights of his patients as a defense in a criminal prosecution as an accessory to a violation of a Connecticut birth control law. But the imposition of criminal liability upon the physician under an unconstitutional statute certainly constitutes injury in fact to the physician. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925), a private school was permitted to sue to enjoin the operation of a statute requiring parents to send their children to public schools. The injury to the private school is obvious. Finally, in Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131 (1915), an alien employee was held to have standing to attack a statute requiring his employer to fire all but a certain proportion of his alien employees. Again the harm is obvious.

 The above three cases were all consistent with the rule "that a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation." Barrows v. Jackson, 346 U.S. 249, 255, 73 S. Ct. 1031, 1034, 97 L. Ed. 1586 (1953); cf., e.g., Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3d Cir. 1970). In each case, although the statute in question affected a third party most directly, there was also a "consequential detriment" *fn7" to the actual plaintiff involved. The question as to standing in each case thus dealt not with whether harm in fact was suffered by each plaintiff, but with non-constitutional, policy elements of standing. See, e.g., Flast v. Cohen, 392 U.S. 83, 92-93, 97, 99 n. 20, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Barrows v. Jackson, 346 U.S. 249, 257, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953). In the present case, the amended complaint alleges neither a direct nor a "consequential detriment" to the organizational plaintiffs as organizations. In contrast to the above cases, there is thus not even the injury in fact required by Article III.

 The organizational plaintiffs rely also on Essex County Welfare Board v. Cohen, 299 F. Supp. 176 (D.N.J. 1969) (three-judge court). There the suit was one to challenge a statutory amendment imposing a freeze on federal aid to families with dependent children. The action was brought in part by the Essex County Welfare Board, the local agency with responsibility for administering the aid program in question. In its brief discussion holding that the Board had standing, as to the element of injury in fact the court characterized the Board as having "an interest in the funds it will be required to expend, and in the communities which will be the recipients of those funds." 299 F. Supp. at 179. Without indicating either agreement or disagreement with the New Jersey court's apparent conclusion that this interest was injured, and that the injury was sufficient to meet Article III requirements, the decision is unavailing to the present organizational plaintiffs in any event, because they have not alleged any comparable interest, nor more importantly any injury to such an interest.

 II.

 As to the McClendons' status as federal taxpayers, their claim to standing perhaps may be disposed of in simple fashion on the basis of Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). In Flast, the Court sought to define the standing requirements which federal taxpayers must meet in order to satisfy the requirements of Article III. The first requirement set forth was that

 
the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.

 392 U.S. at 102, 88 S. Ct. at 1954. It is plain that the present suit is not an attack " only of exercises of congressional power under the taxing and spending clause of Art. I, § 8. . ." (emphasis supplied).

 The exercise of authority challenged in Flast was an exercise of the power to tax and spend for the general welfare, pursuant to Article I, § 8, cl. 1. *fn8" However, in enacting the District of Columbia Court Reform and Criminal Procedure Act of 1970, Congress acted under the authority of Article I, § 8, cl. 17:

 
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, . . .

 See, e.g., District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S. Ct. 1007, 97 L. Ed. 1480 (1953); Neild v. District of Columbia, 71 App. D.C. 306, 110 F.2d 246 (1940). Congress was thus not acting only pursuant to the taxing and spending clause of Article I, § 8, and therefore under Flast the McClendons appear not to have standing to sue as federal taxpayers.

 However, as a consequence of the unique status of the District of Columbia, and of the special grant of authority to Congress contained in Article I, § 8, cl. 17, the Flast test for federal taxpayer standing may be somewhat misplaced in the context of the present case. Yet, the implications of the principles marked out in Flast may still have a more direct application to the McClendons' status.

 The first "nexus" test of Flast just discussed can be stated somewhat more broadly -- that a taxpayer has standing to challenge only exercises of a taxing and spending power. Applying that test to the present case, the question is one of whether the enactment of the preventive detention statute -- even though pursuant to Article I, § 8, cl. 17 -- was nevertheless an exercise of a taxing and spending power, as opposed to being "an essentially regulatory statute." Flast, 392 U.S. 83 at 102, 88 S. Ct. 1942, 20 L. Ed. 2d 947.

 The District of Columbia preventive detention statute, on the other hand, serves primarily to "regulate" one aspect of the administration of criminal justice within the District of Columbia. Any expenditure of funds to support the administration of the preventive detention provisions is, in any real sense, "incidental" in character. The McClendons have therefore failed to establish the first part of the nexus required by Flast in order to support their standing to prosecute the present case as federal taxpayers.

 This conclusion applies equally to the McClendons as District of Columbia taxpayers. In Flast, the Court impliedly reaffirmed "the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (1952)." 392 U.S. at 102, 88 S. Ct. at 1954. Doremus was a state taxpayer suit, prosecuted through the state courts, that came to the Supreme Court as an appeal from the final decision of the Supreme Court of New Jersey. The Court held that it "cannot accept as the basis for review," 342 U.S. at 434, 72 S. Ct. at 397, a state taxpayer's action which did not meet the "case or controversy" requirements of Article III of the Constitution. Of course, those very same requirements must also be met in any case, such as the present one, sought to be brought by local taxpayers as local taxpayers in the federal district courts.

 This being the case, the McClendons' claim of right to proceed as District of Columbia taxpayers must also be measured against Article III requirements. And in Flast, the Court made explicit that its nexus theory was directed to determining whether Article III requirements were satisfied. The conclusion above that the first part of the nexus test was not satisfied, in that the preventive detention provisions were not part of a "spending program," does not change as the focus on the McClendons shifts from their status as federal taxpayers to their status as District of Columbia taxpayers. This shift does not alter in any respect the conclusion that the preventive detention statute is not a taxing and spending program. The McClendons therefore do not have standing in either status.

 III.

 A third grouping of plaintiffs can also be conveniently discussed in conjunction with each other, in that those portions of the amended complaint which define their status raise somewhat related issues. These plaintiffs are identified in paragraphs 4-6 of the amended complaint, as follows:

 
4. Plaintiff James H. Briscoe is a citizen of the District of Columbia, who was ordered detained without bail pending trial pursuant to the pretrial detention provisions of the Act by a judge of the Superior Court on Tuesday, April 13, 1971. He is presently incarcerated pursuant to that order.
 
5. Plaintiff Roy T. Gaskin is a citizen of the District of Columbia, who was convicted in 1968 of a "crime of violence" as defined by the pretrial detention provisions of the Act. He is subject to pretrial detention if charged with another such offense.
 
6. Plaintiff Maxie Sullivan is a citizen of the District of Columbia, who is presently charged with a "dangerous crime" as defined by the pre-trial detention provisions of the Act. *fn10"

 The defendants in their motions to dismiss have raised the objection that no justiciable case or controversy is presented by the claims of any of these three plaintiffs. This contention will be separately dealt with as it applies to each of the three individual plaintiffs.

 A. Gaskin -- Subject to preventive detention if charged with another crime of violence.

 As to plaintiff Gaskin, the claim of the amended complaint is that for persons such as Gaskin who have previously been convicted of a "crime of violence" *fn11"

 
[the] existence of the pretrial detention provisions further deters and inhibits members of the class represented by plaintiffs from exercising their constitutional rights to freedom of movement and association within the District of Columbia and elsewhere. Arrest, even if later shown to be unjustified, triggers the operation of the pretrial detention provisions and may lead to detention; prior arrests, associations and past conduct unspecified by the statute can be used to justify the detention. *fn12"

 The defendants assert that these allegations fail to set up any real and immediate threat of actual injury, as is necessary to present to the court a "case or controversy" ripe for decision. Reliance is placed on decisions such as Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969); United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947); and others. For their part, the plaintiffs argue that the attack is one on the face of the statute, and one which sets up as an immediate, tangible injury a "chilling" effect on First Amendment rights. Plaintiffs rely on decisions that have followed Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), such as Tatum v. Laird, 144 U.S. App. D.C. 72, 444 F.2d 947, cert. granted, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271 (1971); National Student Association v. Hershey, 134 U.S. App. D.C. 56, 412 F.2d 1103 (1969), and others.

 
[We] conclude that we should decide the justiciability of suits predicated on alleged chilling effects on a case-by-case basis. In determining whether a given chilling effect is sufficient, it would seem relevant to consider inter alia : (1) the severity and scope of the alleged chilling effect on First Amendment freedoms, (2) the likelihood of other opportunities to vindicate such First Amendment rights as may be infringed with reasonable promptness, and (3) the nature of the issues which a full adjudication on the merits must resolve, and the need for factual referents in order properly to define and narrow the issues. These considerations become relevant, of course, only if the plaintiffs plausibly allege that they are in fact vulnerable to the alleged chilling effect.

 134 U.S. App. D.C. at 68, 412 F.2d at 1115 (emphasis supplied). See also National Association of Letter Carriers v. Blount, 305 F. Supp. 546, 549 (bD.D.C. 1969) (three-judge court), appeal dismissed, 400 U.S. 801, 91 S. Ct. 7, 27 L. Ed. 2d 33 (1970). The emphasized sentence in the quote bears most directly on the allegation of the present amended complaint dealing with plaintiff Gaskin. The substance of those allegations is only that Gaskin "is subject to pretrial detention if charged with another such offense ['crime of violence']."

 First, there are no allegations which would impart form and substance to the possibility of another arrest for a "crime of violence." Nothing is alleged to indicate that plaintiff Gaskin either desires to or does engage in activity which might be expected to lead to his arrest. Nothing is alleged to suggest that there are peculiar reasons to fear that Gaskin might suffer even a baseless arrest. Going one step further, even assuming an arrest for a "crime of violence," there are no allegations which attempt to suggest a reasonable prospect that prosecutorial discretion will in fact be exercised in an attempt to invoke the preventive detention provisions against plaintiff Gaskin. Finally, there are no allegations that Gaskin is in fact inhibited or deterred in the exercise of his First Amendment rights by fear of running against the possibility of preventive detention. By no stretch of the imagination can it be said that the amended complaint "plausibly [alleges] that [plaintiff Gaskin is] in fact vulnerable to the alleged chilling effect." National Student Association v. Hershey, supra. As to plaintiff Gaskin, the amended complaint therefore does not state a justiciable case or controversy.

 B. Sullivan -- Charged with a dangerous crime -- charge dismissed.

 The situation presented as to plaintiff Sullivan is essentially identical to that of plaintiff Gaskin. On the face of the amended complaint, the allegations differ only in that it is alleged that Sullivan has been arrested for a "dangerous crime." *fn13" Without more, the prosecutor could therefore exercise his discretion to institute preventive detention proceedings against Sullivan. *fn14" As with plaintiff Gaskin, however, there is no allegation, even on "information and belief," that Sullivan has any reason to fear that preventive detention will be sought in his case. The amended complaint thus does not set forth any imminent threat of injury by reason of actual application of the preventive detention provisions. Even assuming that plaintiff Sullivan could also attempt to rely on a chilling effect theory, as with plaintiff Gaskin there is similarly no allegation that Sullivan is or has been in fact inhibited or deterred in the exercise of First Amendment rights.

 Going beyond the face of the amended complaint, there is further reason to conclude that Sullivan's situation is identical to that of plaintiff Gaskin. In the motion to dismiss filed on behalf of the federal defendants, it is represented that the "dangerous crime" charge against Sullivan was "dismissed" on March 24, 1971. Counsel for plaintiffs have not disputed that this is the case. This being so, the posture of Sullivan's claim is identical to Gaskin's, with the exception that Sullivan perhaps would qualify for preventive detention proceedings only if arrested for a "dangerous crime," while Gaskin would also qualify if arrested for a "crime of violence." *fn15" Therefore, neither plaintiff "plausibly allege that they are in fact vulnerable to the alleged chilling effect." National Student Association v. Hershey, supra.

 C. Briscoe -- Preventive detention order vacated.

 The amended complaint alleges that plaintiff Briscoe "is presently incarcerated" under the pretrial detention provisions which are the subject of this lawsuit. *fn16" Were this still the case, the defendants concede that Briscoe would have standing and that his claim would present a justiciable case or controversy ripe for adjudication. However, subsequent to the time the amended complaint was filed, the District of Columbia Court of Appeals vacated the order of the Superior Court under which Briscoe was being detained, and remanded for further proceedings under D.C. Code § 23-1322(e) (Supp. IV, 1971). *fn17" As a result of the proceedings on remand, a parole violation warrant was executed against Briscoe, and he is currently being detained pending trial as a parole violator.

 The defendants assert that Briscoe's right to proceed with the present action is now controlled by Powell v. McCormick, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). There the Court noted that "a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." 395 U.S. at 496, 89 S. Ct. at 1951. Since Briscoe is no longer being detained under the preventive detention provisions sought to be challenged, it is argued that he does "lack a legally cognizable interest in the outcome." Plaintiffs have developed two theories which they claim compel a conclusion that the case is not moot as to Briscoe.

 The central point of the cases dealing with collateral consequences is that a case is not moot where the relief sought will operate to avoid "adverse effects of the event in issue." Justin v. Jacobs, supra, 145 U.S. App. D.C. at 355, 449 F.2d at 1019. As the present case stands, it is plain that the relief sought would not eliminate any adverse effects not already obviated by the action of the District of Columbia Court of Appeals in vacating the preventive detention order against Briscoe. At the outset, when the preventive detention order was vacated, the underlying determination which gives rise to all consequences, collateral or otherwise, was erased as a matter of official record. Of course, the fact that the Superior Court, rightly or wrongly, once decided that preventive detention was proper in Briscoe's case remains, but nothing anyone can do can erase that fact. The result is that the only court action which could be of possible significance in avoiding collateral consequences would be a determination that the original detention order was not justified on the merits. But relief of that kind is neither sought nor available from this court. All that is asked in the present case is a declaration that the preventive detention provisions are unconstitutional, and an injunction against their enforcement. As far as Briscoe's case is concerned, neither relief would have any effect over and above that already accomplished by the action of the District of Columbia Court of Appeals. Therefore, the collateral consequences doctrine does not avoid the mootness problem.

 A second theory put forth rests on the short term nature of preventive detention orders. *fn18" Plaintiffs assert that appellate review of detention orders, at least if limited to individual cases of detention, will always be frustrated on mootness grounds. What is foreseen is a situation involving "short term orders, capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911). Under these ...


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