This opinion deals with that branch of this action in which plaintiffs seek declaratory and injunctive relief with respect to Chapter 11.02 of the Laws and Regulations of the University of Wisconsin, and with respect to disciplinary proceedings based upon alleged "misconduct" rather than upon alleged violations of any express regulation or statute.
Plaintiffs are alleged to be ten students at the Madison campus of the University of Wisconsin, and an unincorporated association known as Students for a Democratic Society (Madison chapter). They undertake to sue on behalf of others similarly situated, as well as for themselves. Several of the defendants are alleged to be officials of the University of Wisconsin, having duties with respect to discipline.
The complaint alleges that on October 18, 1967, plaintiffs and members of their classes engaged in a demonstration on the Madison campus. The ensuing events, pertinent to this opinion, as alleged in the complaint were as follows:
By letter dated October 19, 1967, certain of the plaintiffs were advised by the defendant Dean Kauffman that their conduct on October 18 had violated Chapter 11.02 of the Laws and Regulations of the University, which was quoted in full; that they were being charged with disrupting the operations of the University; and that they were suspended from the University pending a hearing before the Administrative Division of the Committee on Student Conduct and Appeals.
By letter dated October 21, 1967, certain of the plaintiffs were advised by the chairman of the said Administrative Division that they were authorized to attend classes and write examinations pending the disciplinary proceedings; and that
On or about November 1, 1967, certain of the plaintiffs, and others, received a copy of a document described as "Amended Charges" and signed by the chairman of the Administrative Division. The amended charges were that the named students:
The complaint alleges that the defendants, or some of them, have in fact expelled two of the plaintiffs and "another member of plaintiffs' classes * * * by application of the doctrine of `misconduct', and are threatening suspension, expulsion or other denial of matriculation * * * to other members of plaintiffs' classes for alleged violation of the doctrine of `misconduct' and by reason of the application of the doctrine of `misconduct'".
So far as the present action is concerned, then, the defendants assert authority to discipline students: (1) for "misconduct"; and (2) for violations of
Plaintiffs contend that the term "misconduct", as a standard for disciplinary action by the University, violates the First and Fourteenth Amendments to the Constitution of the United States because of its vagueness and overbreadth. Plaintiffs also contend that Chapter 11.02 as written violates the First and Fourteenth Amendments because of its vagueness and overbreadth. Pursuant to pretrial order, defendants have filed a partial answer to these two contentions, each of which has been denied. With respect to these two contentions, the relief sought is a declaratory judgment and injunctive relief consistent with the declaration. This opinion and the order entered pursuant to it reach only these two contentions and the relief sought with respect to them.
Jurisdiction of the action with respect to the term "misconduct" as a standard for discipline and with respect to Chapter 11.02, is claimed pursuant to 42 U.S.C. § 1983, and 28 U.S.C. §§ 1343 (3) and 1343(4), among other statutes. Jurisdiction is present. The complaint sufficiently alleges that the defendants, or some of them, under color of a regulation or custom or usage of the State of Wisconsin, have subjected and threaten to subject the plaintiffs to the deprivation of rights and privileges secured to them by the Constitution of the United States. Defendants have contended that the court lacks jurisdiction over the subject matter because plaintiffs have failed to exhaust the administrative remedies made available to them by the state. Such exhaustion is not required as a condition to the exercise of jurisdiction in this action under 42 U.S.C. § 1983. Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967).
"Misconduct" as a Standard
The amended charges of November 1, 1967, set forth in full above, allege rather specific behavior on the part of the
If the term "misconduct", without more, may serve as a standard for disciplinary action, it is not essential to the defendants' position that Chapter 11.02 be vindicated as a prohibitory regulation. For reasons which will be explained herein, I turn initially to the broader contention of the defendants: that the term "misconduct" may serve as a standard for disciplinary action, and that no more specific or definite substantive rules are required as a prerequisite for disciplinary action.
With respect to the imposition of criminal sanctions in the non-university society
A federal, state, or local statute, ordinance, regulation, order or rule, subjecting one to imprisonment or fine or other serious sanction for "misconduct" would surely fall as unconstitutionally vague. Moreover, it would not be necessary that a challenger await the outcome of an attempted application of so vague a rule to him in a specific judicial or administrative proceeding, and then dispute the validity of the rule only as applied. He could challenge the prospective application of a vague rule and obtain a judicial declaration of its invalidity and injunctive relief against attempts to enforce it. Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 219, 52 S.Ct. 559, 76 L.Ed. 1062 (1932); Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); and Connally v. General Construction Co., supra.
Defendants here contend that, given the opportunity, they can prove that with respect to the events of October 18, those students who were subsequently subjected to disciplinary action had received prior warnings from certain university administrators that they would be punished if they performed the acts which they are alleged to have proceeded nevertheless to perform. It is not contended that defendants could prove that those administrators who issued the warnings were themselves (as distinguished, for example, from the board of regents or the faculty, Sec. 36.12, Wis.Stat.) empowered to promulgate generally applicable rules of conduct for university students. Nor could it be contended that the term "misconduct" itself prescribes intelligible standards or criteria by which these administrators might exercise discretion to issue a specific warning or order in a specific case. In the non-university society, in the absence of a reasonably clear rule or standard or criterion promulgated by those duly empowered to promulgate them, one may not be punished for violating the order of an administrator, such as a policeman. Wright v. Georgia, 373 U.S. 284, 291-292, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963). See Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90-91, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Cox v. Louisiana, 379 U.S. 536, 579, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (separate opinion of Mr. Justice Black); Kunz v. New York, 340 U.S. 290, 293-295, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Schneider
Moreover, the vagueness doctrine is not to be conceived as being limited solely to the concept of fair notice as an element of substantive due process. The vagueness doctrine embodies a First Amendment concept as well:
Whether a given rule "involves" First Amendment rights so as to require that it be looked to "more closely" is often relatively easy to determine: a rule against bank robbery does not; a rule regulating public gatherings probably does. A rule against "misconduct" is so grossly vague that possible involvement of First Amendment rights cannot be ignored. It is not permissible to "presume that the statute curtails constitutionally protected activity as little as possible." NAACP v. Button, supra, 371 U.S. at 432, 83 S.Ct. at 337.
For this reason, even if we were to assume, difficult as it is to do so, that in non-university society a rule simply prohibiting "misconduct" might survive the test of vagueness, it would be doomed as overly broad. "* * * [W]hen the end can be more narrowly achieved", Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231, a rule which "* * * sweeps within its broad scope activities that are constitutionally protected free speech and assembly", Cox v. Louisiana, supra 379 U.S. at 552, 85 S.Ct. at 463, violates the First Amendment by reason of its overbreadth. Keyishian v. Board of Regents, etc., 385 U.S. 589, 609, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Cox v. Louisiana, supra; Aptheker v. Secretary of State, 378 U.S. 500, 514, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). When one is subjected to prosecution based upon such an overly broad regulation, he is not limited to a defensive posture in resisting it. He may take the initiative in seeking declaratory and injunctive relief. Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Moreover, in such a situation the challenger enjoys an "exception to the usual rules governing standing. * * *" 380 U.S. at 486, 85 S.Ct. at 1121
"Possible applications of [a rule simply prohibiting `misconduct'] in other factual contexts beyond that at bar" are limitless. With so grossly broad a standard
Defendants do not appear to dispute that with respect to the criminal law in non-university society the doctrines of vagueness and overbreadth, and the availability of these doctrines in prospective attacks upon criminal regulations, are substantially as stated above. Rather, it appears that their contention may be summarized as follows:
Historically, universities and colleges and schools, both public and private, have enjoyed wide latitude in student discipline. Various "models" of the relationship between the university and its students have been employed by the courts for the purpose of determining the legal attributes of the relationship: parent-child (in loco parentis); owner-tenant; parties to a contract.
In recent years, however, courts have been increasingly disposed to intervene
Of course, the substantive guarantee of equal protection has been consistently applied to educational institutions, and specifically to regulations and practices adopted by boards of education and university administrators. Brown v. Board of Education, etc., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180 (1954) (Topeka Board of Education); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958) (Little Rock School Board); Holmes v. Danner, 191 F.Supp. 394 (M.D.Ga., 1961), stay denied, 364 U.S. 939, 81 S.Ct. 686 (1961) (university administrators). Also, loyalty oaths sought to be imposed upon teachers and other university personnel have been invalidated as vague or overly broad. Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); Cramp v. Board of Public Instruction, etc., 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961).
Indeed, in numerous contexts, the Supreme Court has assigned a special importance to First Amendment guarantees in the educational setting.
Underlying these developments in the relationship of academic institutions to the courts has been a profound shift in the nature of American schools and colleges and universities, and in the relationships
I take notice that as of October, 1967, some 33,000 students were enrolled on the Madison campus; that many graduate schools, such as those of law and medicine, are situated on the Madison campus; that among the colleges, schools, or departments of the university at Madison are those of agriculture, business, engineering, family resources and consumer sciences, industrial relations research, journalism, military science, naval science, pharmacy, and a school for workers; that sources of major portions of its funds, in addition to state tax revenues, are grants from federal agencies and departments such as the Department of Health, Education and Welfare, and the Department of Defense; that the university has close and useful and productive ties to industry, agriculture, and organized labor in Wisconsin and elsewhere; that the university owns or controls a large area of land; that it owns or controls many buildings, some large, which are used as residences, classrooms, laboratories, offices, meeting places, restaurants, gymnasiums and playing fields (intramural and intercollegiate), and research centers; and that it maintains its own police force, hospital, parking lots, and similar functions and facilities.
I take notice that for some years the mean age of American college and university students has been more than 21 years, and that among them are more over 30 years than under 18.
I take notice that particularly in recent years the universities have become theaters for stormy and often violent protest over such matters as war and peace, racial discrimination in our cities and elsewhere, and the quality of American life; that this phenomenon adds new and unanticipated dimensions to the regulation of conduct in the universities; and that those charged with governance of these institutions have been struggling to preserve the many competing values involved.
I take notice that in the present day, expulsion from an institution of higher learning, or suspension for a period of time substantial enough to prevent one from obtaining academic credit for a particular term, may well be, and often is in fact, a more severe sanction than a monetary fine or a relatively brief confinement imposed by a court in a criminal proceeding.
The world is much with the modern state university. Some find this regrettable, mourning the passing of what is said to have been the old order. I do not share this view. But whether the developments are pleasing is irrelevant to the present issue. What is relevant is that the University of Wisconsin at Madison may continue to encompass functions and situations such as those which characterized a small liberal arts college of the early 20th century (of which some no doubt exist today), but that it encompasses many more functions and situations which bear little or no resemblance to the "models" which appear to have underlain, and continue in some cases to underlie, judicial response to cases involving college or university discipline. What is relevant is that in today's world university disciplinary proceedings are likely to involve many forms of misconduct other than fraternity hazing or plagiarism, and that the sanctions imposed may involve consequences for a particular student more grave than those involved in some criminal court proceedings.
The question here concerns the relationship, in today's world, between
In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674 (1943), the Court met head-on the question whether the courts may and should intervene when the First Amendment freedoms of students in public elementary and secondary schools are threatened by a regulation promulgated by a state board of education. The regulation in question required the students to salute the flag by raising their arms in a certain manner and by reciting the pledge of allegiance. Failure to comply was subject to expulsion, and expulsion involved related legal consequences. The Court held that the administrative regulation violated the First Amendment, as embodied in the Fourteenth; it took pains to make clear that the issue was not religious, and that persons whose scruples were other than religious were equally entitled to protection from such a regulation (319 U.S., at 634-635, 63 S.Ct. 1178). It rejected the contention that it should refrain from interference with the school board's functions, observing that school boards have "important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights" (319 U.S., at 637, 63 S.Ct. at 1185). It rejected the contention that it should refrain from entering a field "where courts possess no marked and certainly no controlling competence", Minersville School District v. Gobitis, 310 U.S. 586, 597-598, 60 S.Ct. 1010, 1014, 84 L.Ed. 1375, 127 A.L.R. 1493 (1940); it commented that its duty to apply the bill of rights to assertions of official authority depends not upon the Court's possession of marked competence in the field where the invasion of rights occurs, "but by force of our commissions":
The judgment of the district court enjoining enforcement of the school board regulation was affirmed.
In Barnette, 319 U.S., at 632, 63 S.Ct., at 1182, the Court described the holding in Hamilton v. Regents of University of California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343 (1934), as follows: "* * that where a State, without compelling attendance, extends college facilities to pupils who voluntarily enroll, it may prescribe military training as part of the course without offense to the Constitution. It was held that those who take advantage of its opportunities may not on ground of conscience refuse compliance with such conditions." The Court distinguished Hamilton on two grounds: (1) in public primary and secondary schools in West Virginia, in which Barnette arose, attendance was not optional; and (2) "* * * independently of college privileges or requirements, the State has power to raise militia and impose the duties of service therein upon its citizens."
The present vitality of Hamilton has been sharply questioned, School
Finally, then, the issue is reached whether admission to the University of Wisconsin as a student, and continued enrollment there, may be made to depend upon consent to a regime in which due process may be denied by vague prohibitory standards, or freedom of expression may be threatened or denied by vague or overly broad prohibitory standards. For the reasons I have discussed the answer must be no, unless there is some compelling reason why the university should escape this particular constitutional stricture, some reason why it should be wholly free to refrain from promulgating reasonably definite and narrow rules of conduct. In Esteban v. Central Missouri State College, 290 F.Supp. 622, 630 (W.D.Mo., W.D., 1968), it was said:
I cannot agree that university students should be deprived of these significant constitutional protections on so slender a showing. The American Association of University Professors has declared:
See Van Alstyne, "Student Academic Freedom and the Rule-Making Powers of
For the reasons stated, and upon the basis of the entire record herein, I conclude that the constitutional doctrines of vagueness and overbreadth are applicable, in some measure, to the standard or standards to be applied by the university in disciplining its students, and that a regime in which the term "misconduct" serves as the sole standard violates the due process clause of the Fourteenth Amendment by reason of its vagueness, or, in the alternative, violates the First Amendment as embodied in the Fourteenth by reason of its vagueness and overbreadth.
I have said that these doctrines are applicable "in some measure". It is neither necessary nor wise presently to decide whether they are applicable to disciplinary proceedings in which the range of possible sanctions is mild, such as the denial of social privileges or a minor loss of academic credits or perhaps expulsion from a specific course or perhaps a brief suspension. Nor is it necessary or wise presently to decide whether the standards of vagueness and overbreadth are to be applied as stringently to university regulations of conduct as to criminal statutes in non-university life. Nor is it necessary or wise presently to decide whether these standards are to be applied with equal stringency in every phase of the life of the university; in non-university society, it appears that they are not applied with equal stringency to economic regulations, regulations of speech or assembly, public employment, penal institutions, court room decorum, the military establishment, and other situations; it may be that within the university community the standards may permissibly apply differently to the teacher's control of the classroom, demonstrations, dormitory life, picketing, parking regulations, and decorum in disciplinary hearings.
The judgment here declared is that a standard of "misconduct", without more, may not serve as the sole foundation for the imposition of the sanction of expulsion, or the sanction of suspension for any significant time, throughout the entire range of student life in the university.
Chapter 11.02, Laws and Regulations of the University of Wisconsin
I turn, then, from the defendants' contention that the term "misconduct" alone is sufficient to support the imposition of serious disciplinary sanctions for the behavior which allegedly occurred on the campus on October 18. I turn to the only university rule or regulation, then in existence, which defendants continue to assert as a basis for such disciplinary sanctions. This is Chapter 11.02 of the Laws and Regulations of the Madison campus of the University of Wisconsin, which provides:
The disposition of the challenge to Chapter 11.02 was left to the single district judge.
The resulting situation is anomalous. Under the view reflected in the comments of the Chief Judge of the Circuit, Chapter 11.02 is not available to the defendants as a basis for disciplinary action. However, it is alleged (obviously not frivolously, as appears from the exhibits attached to the complaint and from exhibits received at a hearing on an application for temporary restraints) that the defendants do in fact assert that Chapter 11.02 is a prohibitory regulation which may serve as a basis for disciplinary action; counsel for the defendants represent that defendants intend so to employ and apply Chapter 11.02. Under the circumstances, I will construe Chapter 11.02 as if it forbids students to "support causes by means which disrupt the operations of the university, or organizations accorded the use of university facilities."
Faculty Document 104, embodying Chapter 11 of the Laws and Regulations of the University of Wisconsin (Madison campus), was approved by the faculty December 12, 1966 (Defendants' Exhibit 1, received at a hearing on the application for a temporary restraining order). Chapter 11 is entitled "University Policies on Use of Facilities and Outside Speakers", and it consists of 15 sections, some of which are entitled: "University Policy on Student Freedom", "Policy of the Board of Regents on Student Freedom", and "Regulation of Student Political
Obviously it is not a simple matter to draft a regulation which deals with means by which "causes" are supported or opposed, and which undertakes to prohibit those means unprotected by the First Amendment without impairing those which are so protected, and which also avoids the vice of vagueness. I appreciate that those who drafted and approved Chapter 11.02 may reasonably have supposed it sufficient to use a general phrase, such as "lawful means which do not disrupt the operations of the university", and allow its narrower meanings and scope "to be hammered out case by case * * *." Dombrowski v. Pfister, 380 U.S. 479, at 487, 85 S.Ct. 1116, at 1121, 14 L.Ed.2d 22. But in the view I have taken, expressed in the preceding section of this opinion, such vagueness or overbreadth, or both, are impermissible in the First Amendment area when the potential of serious disciplinary sanctions exists. When the standards of vagueness and overbreadth are applied to Chapter 11.02, however mildly, I am obliged to find it invalid. Neither the element of intention, nor that of proximity of cause and effect, nor that of substantiality, for example, is dealt with by its language. Nor does it contain even the most general description of the kinds of conduct which might be considered disruptive of the operations of the university, nor does it undertake to draw any distinctions whatever as among the various categories of university "operations".
I conclude that Chapter 11.02 is unconstitutionally vague.
Assuming, again with difficulty as was true with respect to "misconduct" as a standard, that the term "lawful means which do not disrupt the operations of the university" is sufficiently definite to avoid the vice of vagueness, I conclude that it is overly broad. As explained above (at page 985), when the end can be more narrowly achieved, it is not permissible to sweep within the scope of a prohibition activities that are constitutionally protected free speech and assembly. And one may attack such an overly broad prohibition although his own conduct may have been constitutionally punishable had the rule been more narrowly drawn. In such a situation, "possible applications of the [rule] in other factual contexts besides that at bar" may be taken into account in appraising the rule's inhibitory effect upon First Amendment freedoms. NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405.
A "possible application" of Chapter 11.02 in a practical, realistic factual context is its application to the organizing of a mid-day campus mass meeting, otherwise lawful, as a "means" of demonstrating "support" for the "cause" of peace or civil rights. If a substantial number of students are attracted to the mass meeting and absent themselves from classes scheduled at that hour, the "operations of the university" may well be "disrupted".
I conclude that Chapter 11.02 violates the First Amendment, as embodied in the Fourteenth, in that its prohibitory scope is overly broad.
The judgment is to declare that Chapter 11.02 is unconstitutional and invalid by reason of its vagueness and overbreadth.
Prayer for Injunctive Relief
I have declared herein that Chapter 11.02 is unconstitutional and invalid. I had previously temporarily enjoined its enforcement. I conclude now that its enforcement should be permanently enjoined.
I have also declared herein that a standard of "misconduct", without more, may not serve as the sole foundation for the imposition of the sanction of expulsion, or the sanction of suspension for any significant time, throughout the entire range of student life in the university. I had not previously temporarily enjoined its use and, as the complaint alleges, it apparently has in fact been used since October 18, 1967, as the basis for the imposition of the sanction of expulsion. For reasons which I am about to explain, I conclude that I should not presently prospectively enjoin the use of "misconduct" as a standard for the imposition of disciplinary sanctions by the university and that, for the present, the use of this standard for the imposition of disciplinary sanctions by the university should be permitted to await judicial review, case by case, following the imposition of the sanction.
At the time I was called upon to determine whether the defendants should be temporarily restrained from employing "misconduct" as a standard for the imposition of disciplinary sanctions, I made the following comments in an opinion and order entered December 11, 1967:
Since those words were written, I have had the benefit of extensive briefing by counsel. Since the time at which that briefing was completed, I have consciously refrained from entering this opinion and order, in the hope that all those concerned, including the court, might gain some additional insight into the problem.
Logic would seem to require that the declaration of invalidity with respect to the standard of "misconduct" be accompanied by injunctive relief. As I have said above (pages 984-985), this prospective, anticipatory, wholesale method of attack upon vague and overly broad prohibitions has been vindicated by the Supreme Court. The principal reason for permitting this method of attack—as distinguished from retrospective, case by case, review of the validity of prohibitions, as actually applied—is said to be that the mere presence or existence of such prohibitions in the area of First Amendment freedoms may have a "chilling effect" upon the exercise of these freedoms, Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L. Ed.2d 22; NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405, which are accorded an exalted and prime position in the constellation of constitutional values.
Whatever the apparent dictates of logic, the same considerations which prompted me to withhold the temporary injunctive relief sought with respect to the "misconduct" standard prompt me now to withhold permanent injunctive relief with respect to this standard.
To hold, as I have held herein, that the university may not escape the necessity to formulate reasonably definite and narrow regulations, at least in some areas of student life and at least with respect to the imposition of serious sanctions, will itself require a considerable readjustment within the university. To take a second step—that is, to confront the university with a sudden application of the tests of vagueness and of overbreadth in a prospective, anticipatory, and wholesale manner—is to impose too radical a transitional strain upon the institution. It is not a matter of record in this action whether the university has anticipated the judicial declarations contained herein. But even assuming that it has done so to a degree, it is unreasonable to suppose that there has been sufficient opportunity for it to review the framework of its laws and regulations in the light of these judicial declarations.
In the non-university society, the regulation of conduct is reflected in a complex of legislative enactments, administrative orders and regulations, common law rules, and judicial declarations which have developed over many years by lawmakers aware or presumably aware that their handiwork was subject to constitutional scrutiny. To apply that scrutiny to a given statute or ordinance, for example, involving First Amendment freedoms, to apply it at the instance of a challenger whose own conduct is unprotected by the First Amendment, to find the statute or ordinance vague or overly broad, and to declare it invalid and to enjoin its enforcement, is strong medicine but is considered to be justified in terms of the overriding importance of freedom of expression in our society. Dombrowski, supra, 380 U.S. at 486-487, 85 S.Ct. 1116. Presumably, the consequences, though serious, are reparable. The particular statute or ordinance, representing a small part of the total complex of rules, may be redrafted and reenacted, and the hole filled.
But historically the regulation of conduct within the university has been the handiwork of lawmakers who have had little reason to suppose that it would be subjected to constitutional scrutiny, at least in substantive terms. Not only to
I have concluded that injunctive relief with respect to the application of the standard of "misconduct", without more, should be denied in this action, and that the plaintiffs and the members of their classes should be left to seek judicial review of the validity of this standard retrospectively, case by case, as it has actually been applied.
In the future and after a reasonable time, depending of course upon intervening rulings by superior courts, this court will be prepared to afford injunctive relief to parties who may seek it, consistently with the judicial declarations contained herein.
Accordingly, it is hereby ordered and adjudged:
Counsel for the defendants have stipulated in this action that Chapter 11.15 is inapplicable to the circumstances of this case and that it is not relied upon as support for disciplinary action with respect to the events of October 18.
Also, on or about November 1, 1967, in the course of proceedings in this court, defendants filed a brief in which it was stated that "the plaintiffs have been charged with misconduct under Section 36.12, Wisconsin Statutes"; in oral argument counsel for the defendants asserted the disciplinary proceedings were grounded in part upon an alleged violation of Sec. 36.12, Wis.Stats. Sec. 36.12 provides, in part:
Counsel for the defendants have since stipulated that Sec. 36.12 is enabling legislation, that the section itself expresses no command or prohibition capable of being violated, and that no alleged violation of its terms is relied upon as support for disciplinary action with respect to the events of October 18.