Jenkins v. McKeithen, 395 U.S. 411 (1969)

Author: Justice Harlan

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Jenkins v. McKeithen, 395 U.S. 411 (1969)


Swept up in a constitutional revolution of its own making, the Court has a tendency to lose sight of the principles that have traditionally defined and limited its role in our political system. Constitutional adjudication is a responsibility we cannot shirk. But it is a grave and extraordinary process, one of last resort. And when it cannot legitimately be avoided, it is a function that must be performed with the utmost circumspection and precision, lest the Court’s opinions emanate radiations which unintentionally, and spuriously, indicate views on matters we have not fully considered.

Over the years, the Court has evolved a number of principles designed to assure that we act within our proper confines. Perhaps the most fundamental of these is that we adjudicate only when, and to the extent that, we are presented with an actual and concrete controversy. Today, in its haste to make new constitutional doctrine, the Court turns this principle on its head as it attempts to create a controversy out of a complaint which alleges none. With respect, I must dissent.


Only last Term, in Flast v. Cohen, 392 U.S. 83 (1968), the Court reaffirmed the proposition that,

when standing [to sue] is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue . . . ,

id. at 99-100, that is, "whether there is a logical nexus between the status asserted and the claim sought to be adjudicated." Id. at 102. In the present context, this means simply that, for a plaintiff to challenge a particular course of conduct pursued or threatened to be pursued by a defendant, it is not enough for the plaintiff to allege that he has been or will be injured by the defendant; the plaintiff must further claim that the injury to him (or to those whom he has status to represent{1}) results from the particular course of conduct he challenges.

Appellant in the case at bar attacks the constitutional validity of certain specific statutory procedures of the Louisiana Labor-Management Commission of Inquiry. Applying the principle stated above, it is not sufficient that he may be injured by the Commission or its members in some way. The injury must be alleged to arise out of, or relate to, the application of the procedures in question. The most generous reading of appellant’s complaint cannot mask the simple truth that it falls short of this minimal requirement.

At the risk of wearying the reader, I must deal with appellant’s pleadings in some detail. The relevant portion of the complaint, and that relied upon by the Court, is part IV ("Facts"), which contains 17 operative paragraphs.

Paragraphs 1-3 identify the plaintiff and defendants.

Paragraphs 6 characterize the Commission as an "executive trial agency," and outline its investigative functions. Paragraph 7 avers that the Commission’s procedures for performing these functions are constitutionally defective with respect to matters of counsel, confrontation, compulsory process, rules of evidence, standards of guilt, right of appeal, and self-incrimination. Nowhere, either directly or indirectly, do these paragraphs intimate that appellant (or, for that matter, anyone else) has been affected by the procedures themselves and their asserted effects.

Paragraph 8 should be quoted in full:

Furthermore, complainant alleges that said defendants, their agents, representatives and employees, and those acting in concert with them, in connection with the administration of the provisions of said Act, have singled out complainant and members of Teamsters Local No. 5 as a special class of persons for repressive and willfully punitive action solely because they are members of said Teamsters Local No. 5, in furtherance of which a deliberate effort has been made and continues to be made by said officials, spearheaded by defendant McKeithen, while acting under color of state law, to destroy the current power structure of the labor union aforesaid and said union to which complainant belongs as a member and through which he experiences economic survival, and to install a new power structure oriented and subservient to the James R. Hoffa group or clique of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; this effort has included and continues to include(a) the deliberate circulation for public consumption of willful falsehoods about members of said labor union, such as characterizing said members as "hoodlums" and "gangsters," comparable in depravity to the sinister Mafia gangsters of underworld criminals, while masking such lawless conduct behind a verbal facade of law and order, (b) the indiscriminate filing of criminal charges against members of said labor union, where there exists no justifiable basis therefor and the concomitant exaction of excessive bail bonds, (c) the intimidating of public officials into carrying out the tyrannical aims of such indiscriminate criminal prosecution, and (d) the dictatorial use of the powers of the office of Governor of Louisiana in furtherance thereof.

In paragraph 9, appellant avers, "as more specifically applies to him," that appellees conspired to file false criminal charges against him. Paragraphs 114 describe in detail the chronology and conduct of the resulting criminal proceedings.

Paragraph 15 alleges that appellees intimidated certain persons (not including appellant) in order to elicit false statements to bring about the prosecution of other persons (not including appellant).

Finally, paragraph 16 contains the usual averments requisite to equitable and declaratory relief, and paragraph 17 requests a temporary restraining order.

Reading and re-reading these many paragraphs of legal and factual averments, one cannot help but be struck by the conspicuous absence of any claim that appellant has been or will be investigated by the Commission, or called as a witness before it, or identified in its findings, or, indeed, subjected to any of its processes.{2} Can this lacuna be filled by implication? I believe not.

Only paragraphs 9-14 relate specifically to appellant, and they contain no hint that the filing of the criminal informations against him was the result of the Commission’s use of any of the procedures which the Court today indicates are constitutionally suspect. And assuming, contrary to fact, seen. 1, supra, that appellant represents others besides himself in this action, the only other arguably germane paragraph is 8(a), which alleges the "deliberate circulation for public consumption of willful falsehoods about members of said labor union." This paragraph conspicuously omits any suggestion that such "falsehoods" were the result of testimony before the Commission, or that they were contained in the Commission’s "findings" -- a term that is repeatedly emphasized in the earlier description of the Commission’s functions.

The complaint’s utter failure to allege any connection between the injuries asserted to have been suffered by appellant and the procedures complained of is not, on any objective reading of the complaint, an accidental omission or the result of counsel’s "inartfulness" -- as my Brother MARSHALL would put it. In my view, the only plausible inference -- especially when it is remembered that appellant was represented by counsel throughout this litigation -- is that such allegations were omitted because appellant had no facts to support them.{3}

The prevailing opinion’s strained construction of the complaint goes well beyond the principle, with which I have no quarrel, that federal pleadings should be most liberally construed. It entirely undermines an important function of the federal system of procedure -- that of disposing of unmeritorious and unjusticiable claims at the outset, before the parties and courts must undergo the expense and time-consumed by evidentiary hearings.

Accordingly, I would sustain the dismissal of the complaint on the ground that appellant has not shown himself to have standing to challenge the Commission’s procedures.


Because the complaint is barren of.any indication of the manner in which appellant is affected by the Commission’s formal procedures, the prevailing opinion is required to make its own assumptions. It places appellant in the vague position of "a person being investigated" by the Commission, ante at 428, 429, and thence proceeds to discuss the rights of such a person to confront witnesses and to offer evidence in his own behalf. The prevailing opinion appears understandably reluctant to commit itself to very much. As I read the opinion, it does not state that any of the Commission’s procedures are actually unconstitutional, but holds only that there is enough latent in the complaint that the case should proceed to trial.

Of necessity, however, my Brother MARSHALL has to examine some of the constitutional issues sought to be raised by appellant in order to justify a remand, and his discussion leaves radiations which are, at least, unclear. Reluctant as I am, under the circumstances of this case, to discuss the merits, I therefore feel compelled to outline my own views. I am not certain to what extent they comport with those of the majority.

The prevailing opinion fails to articulate what I deem to be a constitutionally significant distinction between two kinds of governmental bodies. The first is an agency whose sole or predominant function, without serving any other public interest, is to expose and publicize the names of persons it finds guilty of wrongdoing. To the extent that such a determination -- whether called a "finding" or an "adjudication" -- finally and directly affects the substantial personal interests, I do not doubt that the Due Process Clause may require that it be accompanied by many of the traditional adjudicatory procedural safeguards. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951).

By the terms of the Louisiana legislation, the appellee Commission is not of this sort. Its authority is "investigatory and factfinding only." La.Rev.Stat.Ann. § 23:880.6A (Supp. 1969). Its stated purpose is

to supplement and assist the efforts and activities of the several district attorneys, grand juries and other law enforcement officials and agencies of the State of Louisiana.

Preamble to Act No. 2. Its duty, when it finds probable cause to believe that the criminal laws have been violated, is to

report its findings and recommendations to the proper federal and state authorities . . . charged with the responsibility for prosecution of criminal offenses,

or to file charges itself. La.Rev.Stat.Ann. § 23:880.7B (Supp. 1969). The Commission has no authority to adjudicate a person’s guilt or innocence, and its recommendations and findings have no legal consequences whatsoever. Id. § 23:880.7A (Supp. 1969).

The Commission thus bears close resemblance to certain federal administrative agencies, infra this page and 440, and to the offices of prosecuting attorneys. These agencies have one salient feature in common, which distinguishes them from those designed simply to "expose." None of them is the final arbiter of anyone’s guilt or innocence. Each, rather, plays only a preliminary role, designed, in the usual course of events, to initiate a subsequent formal proceeding in which the accused will enjoy the full panoply of procedural safeguards. For this reason, and because such agencies could not otherwise practicably pursue their investigative functions, they have not been required to follow "adjudicatory" procedures.

I see no constitutionally relevant distinction between this State Commission and the federal administrative agencies that perform investigative functions designed to discover violations which may result in the initiation of criminal proceedings. In Hannah v. Larche, 363 U.S. 420, 445-448, 454-485 (1960), the Court expressly condoned the denial of "rights such as apprisal, confrontation, and cross-examination" in such "nonadjudicative, factfinding investigations." Id. at 446. The Court recognized, for example, that the Federal Trade Commission

could not conduct an efficient investigation if persons being investigated were permitted to convert the investigation into a trial. We have found no authorities suggesting that the rules governing Federal Trade Commission investigations violate the Constitution, and this is understandable, since any person investigated by the Federal Trade Commission will be accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding. . . .

Id. at 446. And the Court said of the Securities and Exchange Commission:

Although the Commission’s Rules provide that parties to adjudicative proceedings shall be given detailed notice of the matters to be determined, . . . and a right to cross-examine witnesses appearing at the hearing, . . . those provisions of the Rules are made specifically inapplicable to investigations, . . . even though the Commission is required to initiate civil or criminal proceedings if an investigation discloses violations of law. Undoubtedly, the reason for this distinction is to prevent the sterilization of investigations by burdening them with trial-like procedures.

Id. at 446-448. (Emphasis added.)

The statutory safeguards afforded persons being investigated by the Louisiana Commission are at least equal to those provided by most of these federal agencies. See id. at 454-485.

The Commission’s functions also find close analogies in the investigations and determinations that take place daily in the offices of state and federal prosecuting attorneys. In both instances, the responsible officials proceed by interrogating persons with knowledge of possible violations of the criminal law. If the prosecutor believes that an individual has committed a crime, he files an information or seeks a grand jury indictment. When the Commission reaches a similar conclusion, it turns its intelligence over to a prosecutor so that he may initiate the formal criminal process.

For obvious reasons, it has not been seriously suggested that a "person under investigation" by a district attorney has any of the "adjudicative" constitutional rights at the investigative stage.{4} These rights attach only after formal proceedings have been initiated. Nor, of course, does one under investigation have a constitutional right that the investigations be conducted in secrecy, or that the official keep his plans to prosecute confidential. The decision whether or not to disclose these matters rests in the sound discretion of the responsible public official. Various factors, such as the fear that a suspect will flee or the concern for obtaining an unbiased jury when the matter comes to trial, may militate in favor of secrecy. On the other hand, an appropriate disclosure of a pending investigation may bring forth witnesses and evidence, and serves a proper ancillary function in keeping the public informed.{5}

The Commission’s operations differ from those of a prosecuting attorney in one important respect, however. The very formality of the Commission’s investigatory process may lend greater credibility and a greater aura of official sanction to the testimony given before it and to its findings. Although, in this respect, the Commission is not different from the federal agencies discussed above, I am not ready to say that the collateral consequences of government-sanctioned opprobrium may not, under some circumstances, entitle a person to some right, consistent with the Commission’s efficient performance of its investigatory duties, to have his public say in rebuttal. However, the Commission’s procedures are far from being niggardly in this respect. They include not only the right to make a personal appearance, but also the right to submit the statements of others, and, under some circumstances, to present questions to adverse witnesses. This is far more than is given persons under investigation by the federal agencies, and certainly serves adequately to neutralize any adverse collateral effects of the Commission’s investigative proceedings.

As I noted above, the very insubstantiality of appellant’s complaint leaves it unclear what the Court holds today. It may be that some of my Brethren understand the complaint to allege that, in fact, the Commission acts primarily as an agency of "exposure,", rather than one which serves the ends required by the state statutes. If so -- although I do not believe that the complaint can be reasonably thus construed -- the area of disagreement between us may be small or nonexistent.

Before the Court holds that a purely investigatory agency must adopt the full roster of adjudicative safeguards, however, it would do well to heed carefully its own warning in Hannah that such a requirement "would make a shambles of the investigation and stifle the agency in its gathering of facts." 363 U.S. at 444. Such a requirement would not only incapacitate state criminal investigatory bodies at a time when their need cannot be gainsaid, but would cast a broad shadow of doubt over the propriety of longstanding procedures employed by many federal agencies -- procedures which, less than a decade ago, the Court believed to be proper and necessary.


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Chicago: Harlan, "Harlan, J., Dissenting," Jenkins v. McKeithen, 395 U.S. 411 (1969) in 395 U.S. 411 395 U.S. 434–395 U.S. 443. Original Sources, accessed September 25, 2022,

MLA: Harlan. "Harlan, J., Dissenting." Jenkins v. McKeithen, 395 U.S. 411 (1969), in 395 U.S. 411, pp. 395 U.S. 434–395 U.S. 443. Original Sources. 25 Sep. 2022.

Harvard: Harlan, 'Harlan, J., Dissenting' in Jenkins v. McKeithen, 395 U.S. 411 (1969). cited in 1969, 395 U.S. 411, pp.395 U.S. 434–395 U.S. 443. Original Sources, retrieved 25 September 2022, from