insurrection

Sheila Myers worked as an Assistant District Attorney in the New Orleans office under District Attorney Harry Connick for approximately five and a half years. In early October 1980, Myers was informed she would be transferred to prosecute cases in a different section of the criminal court. She strongly opposed the transfer and expressed her objections to several supervisors including Connick. On October 6, 1980, Myers received formal notice of the transfer. Later that day she discussed her concerns with First Assistant District Attorney Dennis Waldron. That night Myers prepared a questionnaire soliciting the views of fellow Assistant District Attorneys on office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. The next morning, she typed and copied the questionnaire. She then distributed it to fifteen Assistant District Attorneys. Connick learned of the distribution shortly after noon on October 7. He returned to the office, informed Myers she was being terminated for refusing the transfer, and stated that distributing the questionnaire constituted insubordination. Myers filed suit under 42 U.S.C. § 1983 alleging the termination violated her First Amendment rights. The District Court found the questionnaire was the real reason for discharge, submitted the motivating-factor question to a jury which answered in Myers' favor, and ordered reinstatement with backpay. The Court of Appeals for the Fifth Circuit affirmed, and the Supreme Court granted certiorari.

In October 1864 Lambdin P. Milligan, a citizen of Indiana who had lived in the state for twenty years and had never been in the military or naval service of the United States, was arrested at his home by order of General Alvin P. Hovey, commanding the military district of Indiana. He was charged with conspiracy against the United States, affording aid and comfort to rebels, inciting insurrection, disloyal practices, and violation of the laws of war. On October 21, 1864, Milligan was brought before a military commission convened at Indianapolis pursuant to orders from the President and the War Department; the commission found him guilty on all charges and sentenced him to death, a sentence approved by the President with execution first set for May 19, 1865, and later postponed. After the military proceedings ended, Milligan petitioned the Circuit Court of the United States for the District of Indiana for a writ of habeas corpus, asserting that the military commission lacked jurisdiction because he was a civilian citizen of a loyal state where the civil courts remained open and functioning. The petition stated that a grand jury had convened in the Circuit Court in January 1865, had been charged to inquire into violations of United States law, and had adjourned without indicting or presenting him; no indictment or presentment was ever returned against him. The petition was presented in open court on May 10, 1865, and the United States attorney appeared and submitted the application by agreement. The Circuit Court judges divided on three questions and certified them to the Supreme Court: whether a writ of habeas corpus ought to issue on the facts stated in the petition and exhibits, whether Milligan ought to be discharged from custody, and whether the military commission had jurisdiction to try and sentence him. The record filed with the certificate included the order convening the commission, the charges and specifications, the commission's findings and sentence, and the War Department order reciting presidential approval and directing execution. The Supreme Court heard argument from counsel for Milligan and for the United States on the certified questions.

Paul Weems served as a disbursing officer of the Bureau of Coast Guard and Transportation in the Philippine Islands. He was prosecuted for falsifying a public cash book. The complaint charged that he entered sums of 208 pesos and 408 pesos as wages paid for lighthouse service at Capul and Matabriga when those amounts had not been disbursed. The complaint described Weems as an official of the United States Government of the Philippine Islands and alleged that the falsification was committed corruptly with intent to deceive that government. A demurrer to the complaint was overruled. Weems was convicted after trial. The trial court imposed a sentence of fifteen years of cadena temporal together with a fine of four thousand pesetas and the accessory penalties of civil interdiction, perpetual absolute disqualification, and subjection to surveillance for life. The sentence required service at hard and painful labor while carrying a chain at the ankle hanging from the wrists and with no assistance from outside the penal institution. The Supreme Court of the Philippine Islands affirmed the conviction and sentence. Weems obtained a writ of error from the United States Supreme Court. The assignments of error challenged the sufficiency of the complaint based on the governmental description used. They also claimed that the punishment was cruel and unusual, although that contention had not been presented to the Philippine courts. The record before the Supreme Court contained no trial evidence. The penalty of cadena temporal included not only the term of imprisonment but also perpetual accessories that continued after release. Those accessories encompassed disqualification from exercising parental or marital authority, loss of rights to vote or hold office, and the requirement to notify authorities of any change in domicile while remaining under their inspection.

In January 1970 respondent A. Ernest Fitzgerald lost his job as a management analyst with the Department of the Air Force when his position was eliminated during a departmental reorganization and reduction in force. One year earlier, on November 13, 1968, Fitzgerald had testified before the Subcommittee on Economy in Government of the Joint Economic Committee that cost overruns on the C-5A transport plane could approximate $2 billion. Concerned that the dismissal might constitute retaliation for the congressional testimony, the subcommittee held public hearings. At a December 8, 1969 news conference President Richard Nixon promised to look into the matter and directed White House Chief of Staff H. R. Haldeman to arrange for Fitzgerald's reassignment to another administration position. An internal White House memorandum from aide Alexander Butterfield recommended that Fitzgerald "bleed, for a while at least" because of perceived disloyalty, and no further White House efforts to reemploy him occurred. Fitzgerald complained to the Civil Service Commission alleging unlawful retaliation. The Examiner held that Fitzgerald's dismissal had offended applicable civil service regulations based on a finding that the departmental reorganization was motivated by reasons purely personal to respondent. The Examiner recommended Fitzgerald's reappointment to his old position or to a job of comparable authority. The Commission explicitly found that the evidence did not support Fitzgerald's allegation of retaliation for his 1968 testimony. At a January 31, 1973 news conference President Nixon stated that he had approved Fitzgerald's dismissal. A day later the White House press office issued a retraction of the President's statement. In 1978 Fitzgerald filed a second amended complaint in the United States District Court for the District of Columbia naming Nixon as a defendant and alleging violations of the First Amendment and two federal statutes. The District Court denied Nixon's motion for summary judgment on absolute immunity grounds. The Court of Appeals for the District of Columbia Circuit dismissed the collateral appeal. Shortly after Nixon petitioned for certiorari the parties agreed that Nixon would pay Fitzgerald $142,000 immediately and an additional $28,000 if the Supreme Court ruled he was not entitled to absolute immunity.