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Law School Case Brief

Gilligan v. Morgan - 413 U.S. 1, 93 S. Ct. 2440 (1973)


In determining justiciability, there is no justiciable controversy (a) when the parties are asking for an advisory opinion, (b) when the question sought to be adjudicated has been mooted by subsequent developments, and (c) when there is no standing to maintain the action. Justiciability is not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures.


After members of the Ohio National Guard had killed or injured several students at Kent State University, the plaintiffs, who were students at the University, brought suit in a Federal District Court in Ohio. The plaintiffs sought (1) an injunction restraining the Governor of Ohio from prematurely ordering the National Guard to duty in the future, (2) an injunction restraining leaders of the National Guard from violating the plaintiffs' constitutional rights in the future, and (3) a declaratory judgment to the effect that an Ohio statute granting immunity to riot-suppression personnel was unconstitutional. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted. The Court of Appeals for the Sixth Circuit affirmed with respect to the request for injunctive relief against the Governor's use of the National Guard and with respect to the request for declaratory relief against the immunity statute, but the Court of Appeals reversed and remanded the case with directions that the District Court resolve the question whether there was and is a pattern of training, weaponry, and orders in the Ohio National Guard which singly or together require or make inevitable the use of fatal force in suppressing civilian disorders when the total circumstances at the critical time are such that nonlethal force would suffice to restore order and the use of lethal force is not reasonably necessary (456 F2d 608). After granting certiorari, the Supreme Court of the United States was informed that none of the named plaintiffs was still enrolled in the University, that the officials originally named as party defendants no longer held offices in which they could exercise any authority over the state's National Guard, that the National Guard had adopted new "use-of-force" rules differing substantially from those in effect when the complaint was filed, and that the initial training of National Guard recruits relating to civil disorder control had been revised.


Were the proposed issues before the Court justiciable, thus, capable of being decided by the Judicial Branch?




The Supreme Court of the United States reversed the appellate court's order because it was a broad call on judicial power for a court to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard. Considering the advisory nature of the judicial declaration sought, added to the fact that the nature of the questions to be resolved on remand were subjects committed expressly to the political branches of government under U.S. Const. art. I, § 8, cl. 16, the Court held that the proposed issues on remand were nonjusticiable.

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