A Federal District Court issued a temporary restraining order
restraining the Governor and other officials of Michigan from
continuing with proceedings under state law for the removal of
certain municipal officers for alleged misfeasance in office.
Without passing on the merits of the complaint or a motion to
dismiss it, a three-judge District Court, convened to consider the
case, continued the temporary restraining order in effect for
several months, pending determination of criminal proceedings
against the same municipal officers. The Governor and Attorney
General filed a motion in this Court for leave to file a petition
for writ of mandamus or for writs of prohibition and mandamus
directed against the members of the three-judge District Court to
compel them to decide the motion for a preliminary injunction and
the motion to dismiss, or to refrain from proceeding further in the
cause and to vacate the temporary restraining order. This Court
issued an order to the members of the District Court to show cause
why a writ of mandamus or prohibition should not issue. The
District Court, on motion of one of the complainants in the
proceeding before it, then vacated its temporary restraining order
and dismissed the complaint.
Held: it appearing that the cause has become moot, the
rule to show cause is discharged, and the motion is denied.
Page 355 U. S. 50
PER CURIAM.
It appearing that this case has become moot, the rule to show
cause is discharged, and the motion for leave to file petition for
writ of mandamus or, in the alternative, prohibition and mandamus,
is denied.
Memorandum by MR. JUSTICE FRANKFURTER, in which MR. JUSTICE
BRENNAN joins.
In view of the disposition the Court makes of this unusual
litigation, it seems desirable to set forth the facts.
(1)
Inquiry Into Municipal Officers' Wrongdoing.
Aug. 1956 -- The Attorney General of Michigan and the
Prosecuting Attorney of Wayne County, Michigan, filed with the
Circuit Court of the Third Judicial Circuit for Wayne County an
application for a judicial investigation of criminal offenses and
unlawful practices in the City of Ecorse and other governmental
units in Wayne County.
In re Kavanagh, Misc. No.
83258.
That court entered an order appointing Theodore R. Bohn, Circuit
Judge, to conduct an inquiry pursuant to Mich.Comp.Laws, 1948, §§
767.3 and 767.4, as amended by Mich.Pub.Acts 1949, No. 311,
Mich.Pub.Acts 1951, No. 276. [
Footnote 1]
Page 355 U. S. 51
Sept. 1956 -- Inquiry conducted by Judge Bohn pursuant to §§
767.3 and 767.4.
Oct. 17, 1956 -- Warrant signed by Judge Bohn for the arrest of
William Voisine, mayor of the City of Ecorse, and Albert Buday and
Francis Labadie, members of the city council of Ecorse. The warrant
recites that there is probable cause to believe that Voisine,
Buday, Labadie, and others have conspired to obstruct justice by
knowingly permitting illegal gambling to flourish in return for
bribes and gratuities. A separate warrant issued, evidently on
October 22d, charging Elmer Korn, also a member of the city
council, with accepting bribes.
Oct. 23, 1956 -- Judge Bohn signed and transmitted to G. Mennen
Williams, Governor of Michigan, findings of probable cause to
believe Voisine, Labadie, and Buday guilty of misfeasance in
office, and of other offenses constituting grounds for removal, and
recommended that the Governor, the official empowered to do so,
take steps to remove them from office. Similar findings were
transmitted to the Governor concerning Elmer Korn.
(2) Criminal Proceedings.
Nov. 1956 -- Preliminary examination held by Justice of the
Peace, and accused officers bound over for trial in the Circuit
Court on criminal charges.
Dec. 21, 1956 -- Information filed in the Circuit Court for
Wayne County against Voisine, Buday, Labadie, and others, by the
Attorney General, charging a conspiracy to obstruct justice by
knowingly permitting illegal gambling in return for bribes and
gratuities. Arraignment set for January 15, 1967.
People v.
Voisine, No. 34092.
Jan. 11, 1957 -- Information filed against Korn.
-- Motions to quash filed by Voisine and Labadie.
Page 355 U. S. 52
(3) Removal Proceedings.
Governor initiated removal proceedings against accused officers,
pursuant to constitutional and statutory authorization.
Mich.Const., Art. IX, § 8; Mich.Comp.Laws, 1948, § 767.4, as
amended by Mich.Pub.Acts 1949, No. 311, Mich.Pub.Acts 1951, No.
276; Mich.Comp.Laws, 1948, § 168.327, as added by Mich.Pub.Acts
1954, No. 116, c. XV; Mich.Comp.Laws, 1948, §§ 201.7, 201.10.
[
Footnote 2]
Oct. 25, 1956 -- Executive order issued by Governor Williams, on
the basis of the findings of Judge Bohn, directing the Attorney
General to inquire into the charges made against Korn, and
appointing John W. Conlin, Probate Judge, to conduct hearings and
take testimony produced before him.
-- Executive order issued by Governor directing the Attorney
General and Judge Conlin to conduct similar proceedings against
Voisine, Labadie, and Buday.
Nov. 1 or 2, 1956 -- Notice of removal proceedings was served on
Voisine, Labadie, and Buday, and hearing set for November 13th.
Page 355 U. S. 53
-- Korn also served with notice of the removal proceedings.
Nov. 13, 1956 -- Removal proceedings continued to November
21st.
Nov. 21, 1956 -- Accused officers filed motions to dismiss the
proceedings, and objected to hearing on removal charges before
trial in the criminal proceedings.
Removal proceedings continued to January 7th, 1957, and then to
January 9th.
Jan. 9, 1957 -- Order issued by Judge Conlin the effect of
which, according to accused officers, was to deny their various
motions.
(4) Intervention by United States District Court.
Jan. 14, 1957 -- Complaint filed by Voisine, Labadie, Buday, and
Korn in the United States District Court for the Eastern District
of Michigan, naming as defendants Judge Conlin, Governor Williams,
Judge Bohn, and Attorney General Kavanagh, and alleging that the
statute conferring removal power on the Governor, and the statutes
under which Judge Bohn acted, violate the complainants' rights
under the Federal Constitution. The complaint prays: that a
temporary restraining order issue to prevent defendants from
continuing with the removal proceedings until other matters of
relief prayed for can be determined; that a three-judge District
Court be organized under 28 U.S.C. § 2284, as required by 28 U.S.C.
§ 2281, to issue a preliminary injunction; that, on final hearing,
the removal proceedings be declared unconstitutional and void, and
that a permanent injunction issue against defendants' continuing
the proceedings; that the warrant and information underlying the
criminal action be determined
Page 355 U. S. 54
to have arisen out of unconstitutional proceedings.
Voisine
v. Conlin, Civ. No. 16638.
Complainants also filed a notice of motion for a preliminary
injunction and for the formation of a three-judge District Court,
and prayed for a temporary restraining order to issue without
notice.
Temporary restraining order issued without notice by District
Judge Levin, restraining defendants from continuing with removal
proceedings.
See 28 U.S.C. § 2284(3) and Fed.Rules
Civ.Proc. rule 65.
Jan. 15, 1957 -- Announcement of organization of three-judge
District Court, and hearing set for January 29th. Defendants agreed
that temporary restraining order should remain in effect until
matter disposed of by three-judge court.
Jan. 21, 1957 -- Defendants filed answer to complaint, denying
jurisdiction of the court on the grounds, among others, that
complainants had failed to exhaust their state remedies, and that
the suit was in substance one to enjoin the State of Michigan from
exercising its sovereign powers.
Defendants filed motion to dismiss on similar grounds.
Jan. 29, 1957 -- Hearing held before three-judge District Court
on motions of complainants and defendants.
Feb. 1, 1957 -- District Court entered amended order holding in
abeyance determination of the questions submitted until the
termination of complainants' criminal trials or until further order
of court, and continuing in force the temporary restraining order.
The court recited as grounds for its action that complainants may
forthwith be tried in the criminal proceedings, and the
constitutional questions presented may thereby become moot, and
that complainants may be prejudiced in the criminal proceedings
Page 355 U. S. 55
by the investigation in the removal proceedings. Chief Judge
Lederle, District Judge, dissented on the ground that the case was
ripe for decision.
Feb. 28, 1957 -- The Governor and Attorney General filed a
motion to dissolve the temporary restraining order or to pass on
defendants' motion to dismiss, on the ground that the court had no
authority to refuse to decide the motion and to continue the
temporary restraining order.
Mar. 8, 1957 -- Proceedings on the motion to dissolve.
Mar. 11, 1957 -- Voisine filed an answer to the motion to
dissolve.
Apr. 9, 1957 -- The court entered an order denying the motion to
dissolve on the ground that, deeming it a motion for a rehearing,
it presented no considerations that were not before the court when
it entered its amended order of February 1st. Chief Judge Lederle
dissented.
(5) Proceedings in This Court for Review of District Court's
Action.
July 3, 1957 -- The Governor and Attorney General filed in this
Court a motion for leave to file a petition for writ of mandamus or
for writs of prohibition and mandamus directed against the members
of the three-judge District Court to compel them to decide the
motion for a preliminary injunction and the motion to dismiss, or
to refrain from proceeding further in the cause and to vacate the
temporary restraining order.
Petitioners asserted, among other grounds for the issuance of
the writs, that, in a case of great public importance, the District
Court had, for an unreasonable time, failed to perform its judicial
function by granting or denying the motions before it, while
continuing in effect the temporary restraining order.
Page 355 U. S. 56
Oct. 24 or 25, 1957 -- Counsel for Voisine filed in the District
Court a motion to dismiss the complaint, noticed for hearing on
November 4th. The Attorney General received a copy of this motion,
and, on October 29th, a copy of a similar motion by Labadie, also
noticed for hearing on November 4th.
Oct. 28, 1957 -- This Court issued an order to the members of
the District Court to show cause on or before November 12th why a
writ of mandamus or prohibition should not issue. This order was
sent to the respondents the same day, Monday, October 28th.
Oct. 29, 1957 -- The next day, the District Court entered an
order, on the motion of Voisine and with the concurrence of the
other complainants, vacating the temporary restraining order and
dismissing the complaint. The Attorney General, we are advised, was
not given notice that the District Court would act on the motion to
dismiss, or given an opportunity to present objections.
Oct. 31, 1957 -- Defendants filed with the District Court an
answer to the motion to dismiss, asserting that the court should
refrain from acting on the motion until it had filed a return to
this Court's order of October 28th to show cause.
Nov. 4, 1957 -- The District Court advised this Court of the
order of dismissal of October 29th, and expressed its view that,
since the issues presented by the case are moot, this Court should
vacate its order to show cause.
Nov. 8, 1957 -- The Attorney General of Michigan, protesting
against the District Court's action, requested a determination of
the issues presented in spite of the District Court's order
dismissing the complaint.
From the foregoing, it appears that, as a result of the District
Court's refusal to pass on the questions presented
Page 355 U. S. 57
by the complainants' motion for a preliminary injunction and the
defendants' motion to dismiss, together with the court's
continuance of the temporary restraining order, the Governor of
Michigan and subordinate state officials designated by him were
prevented for almost nine months from exercising powers claimed to
be conferred upon them by Michigan law to remove municipal officers
guilty of misconduct. The motion for leave to file a petition for
mandamus or prohibition was filed in this Court at the end of the
1956 Term, and could not be considered until the commencement of
the new Term. Immediately after the Court considered the motion and
issued its order to show cause on the basis of a claim that
challenged the validity of the actions taken by the District Court,
that court dismissed the complaint, and thereby derailed, as in
effect it has asserted, consideration on the merits of the issues
presented by the order to show cause. Putting to one side the
validity or propriety of the District Court's action in relation to
the order of October 28th, and accepting the dismissal as
accomplished, we must deny the petition for mandamus or
prohibition. By vacating the temporary restraining order and
dismissing the complaint, the District Court has brought to pass
one alternative of the order petitioners would have this Court
issue, thus rendering the petition for all practical purposes moot.
But, although the past cannot be recalled and the physical entries
in the records expunged, the legal significance and implications of
this case are to be deemed expunged as though the restraints
imposed by the District Court had never been ordered.
[
Footnote 1]
Section 767.3 authorizes a single judge to conduct an inquiry
into alleged illegal practices. Section 767.4 provides that, if the
judge is satisfied that an offense has been committed and that
there is probable cause to believe a person guilty thereof, he may
cause his apprehension on proper process. It further provides that,
if the judge has probable cause to believe that any public officer
removable by law has been guilty of misfeasance or malfeasance in
office, he shall make findings to this effect and serve them upon
the public official having jurisdiction to remove the accused
officer.
[
Footnote 2]
Section 767.4 provides that findings of probable cause
transmitted to the Governor by a judge who has conducted an
investigation under § 767.3 shall be a sufficient complaint as a
basis for initiation of removal proceedings. Section 168.327
authorizes the Governor to remove an elected municipal officer when
satisfied by sufficient evidence submitted to him in the manner
prescribed by law that the officer is guilty of misconduct.
Sections 201.7 and 201.10 authorize the Governor to direct the
Attorney General to inquire into the charges and to present
testimony and examine witnesses before a probate judge appointed by
the Governor for such purpose. The probate judge is to certify a
transcript of the testimony produced before him by the Attorney
General and the accused officer, and deliver it to the Attorney
General for transmittal to the Governor.
Memorandum by MR. JUSTICE DOUGLAS.
This Court is empowered by the Constitution to decide cases and
controversies. U.S.Const., Art. III, § 2. A cause that has become
moot is not a case or controversy
Page 355 U. S. 58
in the constitutional sense.
Amalgamated Assn. of Street,
Electric Ry. & Motor Coach Employees v. Wisconsin Board,
340 U. S. 416,
340 U. S. 418.
We cannot underscore this principle too heavily. We have no
business in giving any expression of views on the merits, even in
squinting one way or another. That is why the Court properly
restricts its action to the order entered this day.