Brett Merkey and Young Socialist Alliance v. The Board of Regents of the State of Florida, Etc.

Fifth Circuit

Brett Merkey and Young Socialist Alliance v. The Board of Regents of the State of Florida, Etc.

493 F.2d 790

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 11, 1974

Docket72-3231

StatusPublished

Cited by8 cases

This text of 493 F.2d 790 (Brett Merkey and Young Socialist Alliance v. The Board of Regents of the State of Florida, Etc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brett Merkey and Young Socialist Alliance v. The Board of Regents of the State of Florida, Etc., 493 F.2d 790 (5th Cir. 1974).

Pincite

Opinions

PER CURIAM:

This appeal was taken from an opinion and order in which the district court upheld the right of Florida State Uni[791]*791versity (FSU), a member of the state-supported university system of the State of Florida, to refuse recognition as a student organization to the Young Socialist Alliance (YSA). Merkey v. Board of Regents, N.D.Fla.1972, 344 F. Supp. 1296. Appellant, Brett Merkey, and one other, Jack Lieberman, filed a petition for recognition on behalf of YSA in March of 1970. That petition was denied on the basis of a determination by Chairman Kibler of the Board of Regents, the governing body of the university system,¹ that YSA, because of its dedication to the principle of revolution, had no place on a college campus and would not be entitled to official recognition on campuses of state universities in Florida.

Suit was filed in the district court challenging this denial on First, Fifth, and Fourteenth Amendment grounds. Though the suit was initially filed as a class action on behalf of all groups of students required to seek official recognition as student organizations in state-supported schools, the district court denied class standing on grounds (1) that the plaintiff Merkey was not a student at the time that the suit was filed and hence not a member of the class he purported to represent, and (2) that each group applying for recognition would have to be considered on its individual merits and would thus pose differing questions of fact inappropriate to class actions. The denial of class standing is not challenged on this appeal.

During oral argument it was agreed by counsel in response to a question from the bench that neither the appellant, Merkey, nor his co-applicant, Lieberman, were students at FSU. As non-students they can have no interest in whether or not any student organization is allowed recognition on university campuses of Florida. Hence, Merkey² is beyond the impact of any decision that this Court could render on this appeal. No present FSU student is shown by the record to seek recognition for YSA as an official student organization. In these circumstances and absent any appeal from the denial below of class action status, the appeal is moot. We therefore do not consider the merits. North Carolina v. Rice, 1971, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413. The Court noted in Rice:

“Early in its history, this Court held that it had no power to issue advisory opinions, and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. To be cognizable in a federal court, a suit ‘ . must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, (citations omitted).’” 404 U.S. at 246, 92 S.Ct. at 404, 30 L.Ed.2d at 415-416.

Cf. United States Servicemen’s Fund et al. v. Killeen Independent School District et al., 5 Cir. 1974, 489 F.2d 693, recently dismissed as moot by this Court.

So that the district court judgment will not stand as a barrier to reapplication by students who might wish to seek recognition of YSA, or engender any other precedential consequences, it is vacated and this cause is remanded with directions that it be dismissed as moot. United States v. Munsingwear, 1950, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36; National Lawyers Guild v. Board of Regents, 5 Cir. 1974, 490 F.2d 97; New Left Education Project v. Board of Regents, 5 Cir. 1973, 472 F.2d 218.

Vacated and remanded.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

This appeal was taken from an opinion and order in which the district court upheld the right of Florida State Uni[791]*791versity (FSU), a member of the state-supported university system of the State of Florida, to refuse recognition as a student organization to the Young Socialist Alliance (YSA). Merkey v. Board of Regents, N.D.Fla.1972, 344 F. Supp. 1296. Appellant, Brett Merkey, and one other, Jack Lieberman, filed a petition for recognition on behalf of YSA in March of 1970. That petition was denied on the basis of a determination by Chairman Kibler of the Board of Regents, the governing body of the university system,¹ that YSA, because of its dedication to the principle of revolution, had no place on a college campus and would not be entitled to official recognition on campuses of state universities in Florida.

Suit was filed in the district court challenging this denial on First, Fifth, and Fourteenth Amendment grounds. Though the suit was initially filed as a class action on behalf of all groups of students required to seek official recognition as student organizations in state-supported schools, the district court denied class standing on grounds (1) that the plaintiff Merkey was not a student at the time that the suit was filed and hence not a member of the class he purported to represent, and (2) that each group applying for recognition would have to be considered on its individual merits and would thus pose differing questions of fact inappropriate to class actions. The denial of class standing is not challenged on this appeal.

During oral argument it was agreed by counsel in response to a question from the bench that neither the appellant, Merkey, nor his co-applicant, Lieberman, were students at FSU. As non-students they can have no interest in whether or not any student organization is allowed recognition on university campuses of Florida. Hence, Merkey² is beyond the impact of any decision that this Court could render on this appeal. No present FSU student is shown by the record to seek recognition for YSA as an official student organization. In these circumstances and absent any appeal from the denial below of class action status, the appeal is moot. We therefore do not consider the merits. North Carolina v. Rice, 1971, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413. The Court noted in Rice:

“Early in its history, this Court held that it had no power to issue advisory opinions, and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. To be cognizable in a federal court, a suit ‘ . must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts, (citations omitted).’” 404 U.S. at 246, 92 S.Ct. at 404, 30 L.Ed.2d at 415-416.

Cf. United States Servicemen’s Fund et al. v. Killeen Independent School District et al., 5 Cir. 1974, 489 F.2d 693, recently dismissed as moot by this Court.

So that the district court judgment will not stand as a barrier to reapplication by students who might wish to seek recognition of YSA, or engender any other precedential consequences, it is vacated and this cause is remanded with directions that it be dismissed as moot. United States v. Munsingwear, 1950, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36; National Lawyers Guild v. Board of Regents, 5 Cir. 1974, 490 F.2d 97; New Left Education Project v. Board of Regents, 5 Cir. 1973, 472 F.2d 218.

Vacated and remanded.

In the Matter of the Application of the United States of America for an Order Authorizing the Use of a Pen Register/touch-Tone Decoder on the Telephone Line Bearing the Number 305-921, Etc. Southern Bell Telephone and Telegraph Company (Southern Bell) v. United States of America, in the Matter of the Application of the United States of America for an Order Authorizing the Use of a Pen Register/touch-Tone Decoder on the Telephone Line Bearing the Number 305-920, Etc. Southern Bell Telephone and Telegraph Company (Southern Bell) v. United States

541 F.2d 1151 (Fifth Circuit, 1976)

Southern Bell Telephone & Telegraph Co. v. United States

541 F.2d 1151 (Fifth Circuit, 1976)

Bennie Stone Gooden, Jr., Etc., Plaintiffs-Appellees-Cross v. Mississippi State University, Etc., Defendants-Appellants-Crossappellees

499 F.2d 441 (Fifth Circuit, 1974)

Brett Merkey and Young Socialist Alliance v. The Board of Regents of the State of Florida, Etc.

493 F.2d 790 (Fifth Circuit, 1974)

Merkey v. Board of Regents of State of Florida

496 F.2d 878 (Fifth Circuit, 1974)

Cite This Page — Counsel Stack

Bluebook (online)

493 F.2d 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brett-merkey-and-young-socialist-alliance-v-the-board-of-regents-of-the-ca5-1974.

Opinions

Related

Cite This Page — Counsel Stack