# National Ass'n for the Advancement of Colored People v. Gallion

> Court of Appeals for the Fifth Circuit · May 15, 1961 · 290 F.2d 337

URL: https://www.frixlaw.com/law-library/cases/6921212

## Case

- **Full name:** NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE v. MacDonald GALLION, Attorney General of Alabama and Mrs. Bettye Frink, Secretary of State, State of Alabama
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 15, 1961
- **Citations:** 290 F.2d 337
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tuttle
- **Judges:** Jones, Tuttle
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6921212

## Opinion text

TUTTLE, Chief Judge
(concurring in part and dissenting in part).
With deference to the views of my colleagues, I must dissent from that part of the opinion that affirms the action of the trial court in not proceeding to hear the case presented to it on the merits. I, of course, concur in all the propositions of law which are so well stated in the Court’s opinion. My disagreement arises from the fact that the history of the litigation in the state courts has demonstrated that at the time of the filing of the within complaint the state courts were not affording the complainant reasonable opportunity to be heard on the merits of its complaint that it was being illegally deprived of its right to qualify as a foreign corporation under the Alabama laws.
The nub of the majority opinion I think is contained in the following statement:
“The Supreme Court has, on many occasions, stated the principle that Federal Courts should refrain from determining constitutional questions arising from the interpretation and application of state statutes until the state courts have been afforded a reasonable opportunity to pass upon them. We think this is a. case to which the stated principle applies.”
I think, with all deference, that this is a case to which the stated principle does not apply.
The Supreme Court, as pointed out in the majority opinion, in denying appellant’s petition for mandamus said:
“We assume that the State Supreme Court, thus advised, will not fail to proceed promptly with the disposition of the matters left open under our mandate for further proceedings.” 360 U.S. 240, 245 , 79 S.Ct. 1001, 1004 .
The assumption thus made by the United States Supreme Court has now clearly been proved to be incorrect. This record shows that although the Supreme Court of the United States finally disposed of the matter by a denial of a petition for rehearing on October 12, 1959, and in spite of efforts by the appellants to get the Supreme Court of Alabama to send down its mandate to the state trial court, the Alabama Supreme Court had failed' more than eight months later to perform, this simplest of ministerial acts, that is, to send down the mandate to the Circuit Court. In the meantime appellant was denied any opportunity to move towards a trial of the validity of the original injunction, already in effect for three-years. No effort was made upon the hearing below to show how such an unparalleled delay in the performance of a normal clerical duty was justified. In-the absence of such justification, I think that there is but one conclusion possible; the State Supreme Court did “fail to proceed promptly with the disposition of the matters left open under [the United States Supreme Court] mandate for further proceedings,” thus removing the basis assigned by that Court ior its refusal to grant appellant’s application for a writ of mandamus.
In such circumstances as this, I think the course of litigation in Hawkins v. Board of Control, the history of which is portrayed by the citations of its appearance in the Florida courts and the United States Supreme Court in footnote 3 of the majority opinion, teaches us that the matter is ripe for decision by a United States District Court. In the Hawkins case, the question of the admission of Hawkins to the University of Florida law school was pending in the State Supreme Court, following a decision of the United States Supreme Court holding that no further basis appeared for denying him such admission. Following another denial of his admission by the State court, which expressly retained jurisdiction, Hawkins applied to the United States Supreme Court for certiorari. The Supreme Court denied the application for certiorari “without prejudice to the petitioner’s seeking relief in an appropriate United States District Court.” [ 355 U.S. 839 , 78 S.Ct. 20 ].
*345 The United States Supreme Court thus not only approved, but itself suggested, a procedure for permitting a complainant who considered that he was being shunted aside for inordinate delays in the State courts to have the matter inquired into on the merits in a United States District Court.
In this case, I would have not the slightest doubt that the failure of the Alabama Supreme Court to make possible further proceedings in that State’s trial court by its failure to take the simple ministerial act of sending down the mandate for a period of more than eight months, and then sending it down only after suit was filed in the United States Court, presented a classic example of a case in which the assumption that the State court would act promptly to permit a trial of the rights of an aggrieved party has been demonstrated to be false.
I, of course, agree that the judgment of dismissal must be reversed and set aside. I disagree with my colleagues only in that I think the trial court should have proceeded to a hearing on the merits of the complaint, requiring the appellant to participate further in the fiction that it had an opportunity to have a reasonably prompt hearing in the State courts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6921212. Public record. Not legal advice.