Reverend Gene Bridges v. Admiral D. C. Davis, Reverend Gene Bridges v. Colonel D. McGough

CONCURRING AND DISSENTING

I concur in the result with respect to appellants Warner and Bridges, but I cannot join in affirming the judgment against Jones.

And, if substantial proof of actual misconduct was a necessary predicate for the post commanders’ orders summarily barring Warner and Bridges from the military bases, then I would wholly disagree with my brothers. Unlike them, I do not believe that on this record we can attribute to Warner and Bridges many of the misdeeds and much of the mischief so forcibly emphasized by the opinion. The “proof” on that score consisted largely of hearsay, surmise and conclusory statements completely bereft of factual predicates.

But, as I read Cafeteria Workers, [Cafeteria and Restaurant Workers, etc. v. McElroy, 367 U.S. 886 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961)] judicial interference with a military commander’s orders involving the exercise of discretion is largely confined to those rare instances where such orders are utterly incapable of being rationalized on any conceivably valid basis. The orders in the instant case, even though the result of gossip and unconfirmed rumor and although they extend to “men of the cloth” are not, in my…

443 F.2d 970 Reverend Gene BRIDGES et al., Appellants, v. Admiral D. C. DAVIS et al., Appellees. Reverend Gene BRIDGES et al., Appellants, v. Colonel D. McGOUGH et al., Appellees. No. 25317. United States Court of Appeals, Ninth Circuit. June 18, 1971. Rehearing Denied August 27, 1971. See 445 F.2d 1401 . Edward R. Bendet (argued), Honolulu, Hawaii, John S. Edmunds, Brook Hart, ACLU, Honolulu, Hawaii, for appellants. Alan Rosenthal (argued), Robert V. Zener, Raymond D. Battocchi, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., William D. Ruckelhaus, Asst. Atty. Gen., Washington, D. C., Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for appellees. Before KOELSCH, CARTER and KILKENNY, Circuit Judges. PER CURIAM: 1 This is an appeal by three ordained ministers (Bridges, Jones and Warner) and eight servicemen from a decree, 311 F.Supp. 935 , dismissing their actions for injunctions against certain military authorities in Hawaii. FACTUAL BACKGROUND 2 In August, 1969, the Church of the Crossroads and the Unitarian Church in Honolulu became sanctuaries for military servicemen who decided to absent themselves without leave. The appellant ministers were involved in the…

This is an appeal by three ordained ministers (Bridges, Jones and Warner) and eight servicemen from a decree, 311 F.Supp. 935 , dismissing their actions for injunctions against certain military authorities in Hawaii.

FACTUAL BACKGROUND

In August, 1969, the Church of the Crossroads and the Unitarian Church in Honolulu became sanctuaries for military servicemen who decided to absent themselves without leave. The appellant ministers were involved in the sanctuaries. The other appellants are servicemen who entered the sanctuaries while absent without leave' from the military. After the servicemen were arrested and placed in military prison, the ministers performed services for them on the military base. Subsequently, the appellee commanding officers of Naval and Marine bases in Hawaii barred the ministers from again entering those bases on the ground that their presence would be inimical to morale and good order of the service.

The facts are practically undisputed. Hawaii is an important American staging area for military activities in the Pacific. There located are the Pearl Harbor Naval Base (Pearl Harbor) and the Marine Corps Air Station, Kaneohe Bay, Hawaii (Kaneohe), each of…