GILLIGAN V. MORGAN, 413 U. S. 1 (1973)

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U.S. Supreme Court

Gilligan v. Morgan, 413 U.S. 1 (1973)

Gilligan v. Morgan

No. 71-1553

Argued March 19, 1973

Decided June 21, 1973

413 U.S. 1


Respondents filed this action on behalf of themselves and all other students at a state university, claiming that, during a period of civil disorder on the campus in May, 1970, the National Guard, called by the Governor to preserve order, violated students' rights of speech and assembly and caused injury and death to some students. They sought injunctive relief to restrain the Governor in the future from prematurely ordering Guard troops to duty in civil disorders and an injunction to restrain Guard leaders from future violation of students' rights. They also sought a declaratory judgment that § 2923.55 of the Ohio Revised Code is unconstitutional. The District Court dismissed the suit on the ground that the complaint failed to state a claim upon which relief could be granted. The Court of Appeals affirmed the dismissal with respect to both injunctive relief against the Governor's "premature" employment of the Guard and the validity of the state statute, but held that the complaint stated a cause of action with respect to one issue, which was remanded to the District Court with directions to resolve the question whether there was and is

"a pattern of training, weaponry and orders in the Ohio National Guard which . . . require . . . the use of fatal force in suppressing

Page 413 U. S. 2

civilian disorders when the total circumstances are such that nonlethal force would suffice to restore order. . . ."

Since the complaint was filed, the named respondents have left the university; the officials originally named as defendants no longer hold offices in which they can exercise authority over the Guard; the Guard has adopted new and substantially different "use of force" rules; and the civil disorder training of Guard recruits has been revised.


1. The case is resolved on the basis of whether the claims alleged in the complaint, as narrowed by the Court of Appeals' remand, are justiciable, rather than on possible mootness. Pp. 413 U. S. 5.

2. No justiciable controversy is presented in this case, as the relief sought by respondents, requiring initial judicial review and continuing judicial surveillance over the training, weaponry, and standing orders of the National Guard, embraces critical areas of responsibility vested by the Constitution, see Art. I, § 8, cl. 16, in the Legislative and Executive Branches of the Government. Pp. 413 U. S. 5-12.

456 F.2d 608, reversed.

BURGER, C.J.,delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, in which POWELL, J., joined, post, p. 413 U. S. 12. DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., filed a dissenting statement, post, p. 413 U. S. 12.

Page 413 U. S. 3

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