# Petition — Claiborne Hardware Co. v. Henry

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1074

## Text

NOV 23 1979

|_MicHam ROBAK, JR, CLERR

IN THE

Supreme Court of the United States
OCTOBER TERM, 1979

No. 9-811

CLAIBORNE HARDWARE CO., et al.,
Petitioners,

versus
~ AARON HENRY, et al., UNITED STATES OF AMERICA,

and MISSISSIPPI ACTION FOR PROGRESS,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

DIXON L. PYLES

PYLES AND TUCKER
507 East Pearl Street
Jackson, Mississippi 39201

SHELL, BUFORD, BUFKIN,
CALLICUTT & PERRY

Suite 552

First National Bank Building

Jackson, Mississippi 39205

Attorneys for Petitioners

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

TABLE OF CONTENTS

Page
Table of Authorities AV CEU ed et ENCES cles te ees iv
SSB LEILA EE LIS CLES NRE
JerldnGen ea ER i kn i AR... 3
Quciieen Freee (ioe ere... 3
Constitutional Provisions Involved ............... 4
Statutory Provisions Involved ..............0.05: 4
Statement? GF-thb- Case! oii Mili eed scenes 7
Reasons for Granting the Writ ................. 10

I. THE ABSTENTION DOCTRINE
ARTICULATED IN YOUNGER uv.
HARRIS AND ITS PROGENY ‘PRE-
CLUDES THE DISTRICT COURT
FROM ENJOINING ENFORCE-
MENT OF THE STATE COURT.
JUDGMENT IN A CIVIL ACTION
BETWEEN PRIVATE PARTIES IN
WHICH THE STATE IS NOT A PAR-

Il. MERE ENTRY OF AN EN-
FORCEABLE STATE COURT JUDG-
MENT, FROM WHICH APPEAL LIES
AS A MATTER OF RIGHT IS NOT
“STATE ACTION” FOR PURPOSES
OF THE FOURTEENTH AMEND-
MENT OR 42 U.S.C. §1983 .......... 1. 16

‘i
TABLE OF CONTENTS (Continued)
Page

Ill. AN ORIGINAL COMPLAINT CAN-
NOT. “ARISE” TO CONFER OR
CONTINUE JURISDICTION ON A
FEDERAL COURT WHEN AN
AMENDED COMPLAINT, WHICH
SUPERSEDED THE ORIGINAL
COMPLAINT, IS DISMISSED .......... 22

IV. THE UNITED STATES OF
AMERICA CANNOT CLAIM A LIEN
INTEREST IN THE ASSETS OF A
PRIVATE NONPROFIT CORPORA-

TION THAT IS NOT A FEDERAL
AGENCY, ALTHOUGHITS ASSETS
COME FROM A FEDERAL AGENCY .... 26

CONC LUSSIER dec cs s caaecesevenen ge roan ue 27
APPENDIX —
Opinion of Fifth Circuit Court of Appeals
reported at 595 F.2d 291 .......sseeeeee veces la
Accompanying Judgment dated May 21, |
197D <d
causes to be subjected, any citizen of the jer ta wd ety
person within the ig ea a bg by threat : eit
i ivi immunities $¢ an
ane yi lakhs to ee party injured in an action at law, suit in
equity, or other proper proceeding for redress.

14a

such it plainly stated a federal cause of action over
which the district court had jurisdiction under 28
U.S.C. §§ 1331(a)3 and 1343(3).4 The requisite state ac-
tion which we found absent in Henry I has since been
supplied by entry of the state Chancery Court judg-
ment which is immediately enforceable. The crucial dif-
ference between a private party who has merely filed a
civil suit in a state forum and the successful litigant
who possesses an immediately enforceable state judg-
ment is that in the latter case the full power and
authority of the state can be invoked on behalf of the
litigant. It is this exercise of state power that provides
state action for purposes of the Fourteenth Amend-
ment and section 1983. Henry I, supra. In the ordinary
case a state court judgment must have been approved
by the highest court of the state before it becomes im-
mediately enforceable. See New York Times v. Sullivan, 376
U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Shelley v.
Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).
The present case is unique, however, for several
reasons.

3 28U.S.C. §1331(a) provides:

§1331. Federal question; amount in controversy; costs

(a) The district courts shall have original jurisdiction of all civil
actions wherein the matter in controversy exceeds the sum or
value of $10,000, exclusive of interest and costs, and arises under
the Constitution, laws, or treaties of the United States.

4 28U.S.C. §1343(3) provides:

(3) To redress the deprivation, under color of a‘ty State law,
statute, ordinance, regulation, custom or usage, of any right, priv-
ilege or immunity secured by the Constitution. of the United
States or by any Act of Congress providing for equal rights of citi-
zens or of all persons within the jurisdiction of the United States;

15a

The injunction issued by the state Chancery Court is
presently enforceable, and there can be no doubt that
the state court plaintiffs can invoke the full power and
authority of the state to enforce the injunction pend-
ing appeal. The damage award is a closer question, but
we areconvinced that the unique facts of this case justi-
fy our conclusion that the damage award is also im-
mediately enforceable, even assuming the possibility of
state appellate review. First, the damage award is
essentially based on the underlying injunction. As we
will demonstrate, infra, significant parts of the injunc-
tion are at odds with the First Amendment. Second,
appellate review of the damage award may only be had
by the posting of a supersedeas bond which would
effectively bankrupt the NAACP. Under the circum-
stances, we conclude that under applicable state law
appellate review of this case is made so difficult as to
justify our conclusion that the state Chancery Court
judgment is immediately enforceable.

Appellants next argue that the Anti-Injunction Act,
28 U.S.C. §2283 (1976), prohibited issuance of the dis-
trict court’s injunction delaying enforcement of the
state court judgment by the state plaintiffs. Section
2283 provides that “[a] court of the United States may
not grant an injunction to stay proceedings in a State
court except as expressly authorized by Act of Con-
gress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.” Section 2283 ap-
plies to restraints on private parties as well as to those
imposed directly ona state court. Atlantic Coast Line Rail-

16a

road Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281,
286, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970); Okla-
homa Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4,
60 S.Ct. 215, 84 L.Ed. 537 (1940).

This section, however, poses no bar to the order un-
der consideration, for the order plainly falls within one
of the statutory exceptions to section 2283. After care-
fully reviewing the history and policies underlying sec-
tion 2283 the Supreme Court held in Mitchum v. Foster,
407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), that
section 1983 satisfies the requirements of the first ex-
ception to section 2283 as an express congressional
authorization to intervene instatecourt proceedings in
order to protect federal rights. See also Vendo Co. v. Lektro-
Vend Corp., 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009
(1977); Trainor v. Hernandez, 431 U.S.434, 444-45 n.8, 97
S.Ct. 1911, 1918-19, 52 L.Ed.2d 486 (1977); Joiner v. City
of Dallas, Texas, 5 Cir., 1974, 488 F.2d 519, 520; American
Radio Assoc. v. Mobile Steamship Assoc., Inc., 5 Cir., 1973,
483 F.2d 1, 6; Palaio v. McAuliffe, 5 Cir., 1972, 466 F.2d
1230, 1232 n.7. As the district court’s first order was
entered pursuant to a claim under section 1983 involv-
ing the deprivation of constitutional rights, section
2283 did not prohibit the issuance of this injunction.

Appellants argue that, even if section 2283 creates no
absolute bar to entry of an injunction in this case, the
district court should have abstained from exercising its
jurisdiction under the doctrine articulated in Younger v.
Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),

17a

and its progeny. The applicability of the Younger ab-
stention doctrine requires consideration entirely apart
from the determination that section 2283 does not pro-
hibit issuance of an injunction. See Mitchum v. Foster, 407
U.S. 225, 243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705
(1972); Trainor v. Hernandez, 431 U.S.434, 444-45 n.8, 97
S.Ct. 1911, 1918-19, 52 L.Ed.2d 486 (1977). Neither the
Supreme Court nor this court has made the Younger
doctrine generally applicable to all civil litigation and
we decline the invitation to do so in this case.

In Younger, the Supreme Court held that a federal dis-
trict court ought not enjoin a pending state criminal
prosecution absent exceptional circumstances such asa
prosecution brcught in bad faith or for harassment, a
prosecution under a statute flagrantly un-
constitutional in all respects or other possibly extra-
ordinary circumstances. founger v. Harris, supra, 401
U.S. at 53-54, 91S.Ct. at 755. This doctrine rests on the
traditional reluctance of federal courts of equity to
intervene in state criminal prosecutions and on the
considerations of comity and federalism that must
guide relations between state and federal courts. The
Court explained the principle of comity as “a proper re-
spect for state functions, a recognition of the fact that
the entire country is made up of a Union of separate
state governments, and a continuance of the belief that
the National Government will fare best if the States
and their institutions are left free to perform their sep-
arate functions in their separate ways.” Id. at 44, 91
S.Ct. at 750.

18a

While certain considerations of comity and federal-
ism pertain to civil proceedings as well as to criminal
prosecutions the Supreme Court thus far has declined
to extend the Younger doctrine to all civil litigation. See
Huffman v. Pursue, Ltd., 420 U.S. 592, 607, 95 S.Ct. 1200,
1209, 43 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327,
336 n.13, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977);
Trainor v. Hernandez, 431 U.S. 434, 44-45 n.8, 97 S.Ct.
1911, 1919, 52 L.Ed.2d 486 (1977). In each instance
where the Court has applied Younger principles to civil
litigation, a state or a state official was engaged in ad-
vancing important state interests in the state courts,
and intervention by the federal courts would have
seriously impaired the pursuit of those interests.

In Huffman, the state brought a civil nuisance action
against the owners of a movie theater that showed ob-
scene films. The state could have chosen instead to
bring a criminal proceeding against the owners. The
Court concluded that paramount state interests akin to
those implicated in a criminal prosecution were in-
volved in this civil action “in aid of and closely related to
criminal statutes which prohibit the dissemination of
obscene materials,” 420 U.S. at 604, 95 S.Ct. at 1208,

and, accordingly, held that federal abstention was
appropriate.

Similarly, in Juidice, the state enforced a contempt
citation for failure to observe a court order to appear in
court. In holding Younger principles applicable, the
Court emphasized the state’s strong interest in en-

19a
forcing rules for the orderly administration of its judi-

cial system. “A State’s interest in the contempt process,
through which it vindicates the regular operation of its
judicial system, so long as that system itself affords the
opportunity to pursue federal claims within it, is sure-
ly an important interest. . .. The contempt ponies ties
at the core of the administration of a State s judicial
system ... [Flederal court interference with _
State’s contempt process is ‘an offense to the State's
interest . . . likely to be every bit as great as it would be
were this a criminal proceeding.’ ” (citations omitted)
430 U.S. at 335-36, 97 S.Ct. at 1217.

Finally, in Trainor the Court found abstention indi-
cated where the state initiated a civil proceeding for the
recovery of monies fraudulently obtained from the
state by a welfare recipient. The Court discussed the
importance that the state as sovereign attached to the
prosecution of the suit, stressing that the state could
have initiated criminal proceedings to vindicate its
interests and concluding that “the principles of Younger
and Huffman are broad enough to apply to interference
by a federal court with an ongoing civil enforcement ac-
tion such as this, brought by the State in its sovereign
capacity.” 431 U.S. at 444,97 S.Ct. at 1918. Mr. Justice
Blackmun’s concurrence particularly emphasized the
significance to be accorded the state sovereigns pres-
ence in the litigation. Id. at 448-49, 97 S.Ct. at 1920-21.

The instant case plainly differs from Huffman, Juidice,
and Trainor. First, this case involves an exclusively

20a
private dispute to which the state has never been a par-

ty either in the state or the federal proceedings. This
does not represent a case where the state has under-
taken the vindication of important state interests in a
civil proceeding. To the extent that Mississippi has any
interest in the instant litigation, it is the interest in pro-
viding and supervising state forums for the orderly
resolution of private conflicts. The district court’s
order does not interfere with this state function.

This brings us to the second important distinction
between the case under review and the Younger line of
decisions: the narrow scope of the relief afforded the
federal plaintiffs. The district court’s order herein does
not prohibit further proceedings in the state courts,
but merely delays enforcement of the state Chancery
Court’s judgment until the Mississippi Supreme Court
and, if necessary, the United States Supreme Court
have had an opportunity to review the important con-
stitutional issues presented in this case. The district
court carefully limited its relief to preserving the fed-
eral plaintiffs (defendants in the state court suit) from
certain irreparable injury during the pendency of the
appeal, while not interfering with the normal progress
of the state court case through the Mississippi appellate
courts. Thus, the district court’s order was consider-
ably less intrusive and disruptive of state functions
than the broader injunctions under consideration in
Younger and its progeny.

As the federal plaintiffs had exhausted all avenues of
emergency state relief available to them, we conclude

21a

that the Younger doctrine did not require the federal dis-
trict court to abstain from entertaining this suit and
granting appropriate relief. Appellants have cited no
decision of the Fifth Circuit indicating a contrary re-
sult. Indeed, those cases which have applied Younger
principles in the civil context have involved instances
where the state as sovereign employed proceedings
akin to criminal actions to advance important state
interests and are, thus, entirely consistent with the
analysis we adopt today. See Duke v. Texas, 5 Cir., 1973,
477 F.2d 244, cert. denied, 415 U.S. 978, 94S.Ct. 1565, 39
L.Ed.2d 874 (1974); Palaio v. McAuliffe, 5 Cir., 1972, 466
F.2d 1230.

Having concluded that the action of the district court
was not barred either by the Anti-Injunction Act or by
the Younger abstention doctrine, we now consider
whether the requirements for entry of a preliminary
injunction were satisfied. The standard for appellate
review of a preliminary injunction is simply whether
the district court abused its discretion in issuing the in-
junction; the reviewing court does not engage in the
same plenary review that would be indicated on appeal
of permanent relief. Brown v. Chote, 411 U.S. 452, 456-
57, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973); Morgan
v. Fletcher, 5 Cir., 1975, 518 F.2d 236, 239; DiGiorgio v.
Causey, 5 Cir., 1973, 488 F.2d 527, 528; Johnson v. Radford,
5 Cir., 1971, 449 F.2d 115, 116.

There are four requirements for the issuance of a
preliminary injunction: first, there must be a substan-

22a

tial likelihood that the plaintiff will ultimately prevail
on the merits of his claim; second, the injunction must
be necessary to prevent irreparable injury; third, the
threatened injury to the plaintiffs must outweigh the
harm the injunction might do the defendants, and,
fourth, entry of an injunction must be consistent with
the public interest. Morgan, supra at 239; Canal Authority
v. Callaway, 5 Cir., 1974, 489 F.2d 567, 572; DiGiorgio,
supra at 529. We consider these requirements in order.

The federal plaintiffs have argued that the injunc-
tion and damages award entered by the state Chan-
cery Court are unconstitutional in that they prohibit
and penalize activity protected by the First Amend-
ment. Before addressing the merits of plaintiffs’ con-
stitutional claim, we emphasize that appellate review
by us in the circumstances of this case is limited to an
inquiry into whether the district court could, without
abusing its discretion, have found that the federal
plaintiffs were likely to succeed on the merits of their
claim. Beyond this determination we intimate no opin-
ion regarding the ultimate merit of their contentions.

It is a cardinal principle of First Amendment law that
restrictions on speech must be narrowly drawn so as
not to restrain or cramp the exercise of protected
rights. Police Department of Chicago v. Mosley, 408 U.S. 92,
101, 92 S.Ct. 2286, 2293, 33 L.Ed.2d 212; Carroll v. Presi-
dent and Commissioners of Princess Anne, 393 U.S. 175, 183-
84, 89 S.Ct. 347, 353, 21 L.Ed.2d 325 (1968); Coates v.
City of Cincinnati, 402 U.S. 611,91 S.Ct. 1686, 29 L.Ed.2d

23a

214 (1972); Broadrick v. Oklahoma, 413 U.S. 601, 611, 93
S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973); Shelton v. Tuck-
er, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231.
Restraints on speech must be carefully tailored so as
not to exceed the ambit of permissible regulation.

The boycott in this case was organized to protest
racial discrimination by the merchants and city govern-
ment of Port Gibson. The organizers of the boycott
undertook a variety of activities including public
speeches, private solicitations and picketing to encour-
age other members of the black community to support
the boycott. There were several instances of violence
or threats of violence by supporters of the boycott
against black individuals who continued to patronize
white businesses. Violence, threats, and other coercive
activity, of course, enjoy no protection under the First
Amendment, and the district court properly left un-
disturbed those aspects of the state Chancery Court’s
injunction prohibiting “physical violence, damage to
any real or personal property, or obstructing the en-
trance to the place of business of any complainant.”

The state court’s injunction, however, was not limit-
ed to prohibiting acts or threats of violence but ex-
tended to every form of speech or activity designed to
discourage for whatever reason anyone from trading
with the businesses of the state plaintiffs.5 This sort of

5 The state Chancery Court's decree reads in pertinent part:
E. The defendants, and each of them, and all persons confed-
erating and cooperating with them be and they are hereby per-

manently enjoined from:

24a

sweeping prohibition on speech and communication
raises serious constitutional problems. Consistent with
the views underlying its injunction, the state court
assessed the state defendants for all damages suffered
by the state plaintiffs during the period of the boycott
which the court found attributable to the failure or re-
fusal of black citizens to trade with the white busi-
nesses in anticipated numbers.

At the heart of the Chancery Court's opinion lies the
belief that the mere organization of the boycott and
every activity undertaken in support thereof could be
subject to judicial prohibition under state law.¢ This

1. Stationing guards, store watchers, enforcers, deacons, or
black hats, or by whatever name such persons are called, at or near
the business premises of the above named complainants.

2. Persuading, soliciting, advising, threatening, coercing, in-
timidating and restraining any person to withdraw and withhold
his or her patronage or to cease trading with the above named
complainants.

3. Blocking the streets and sidewalks near the business estab-
lishment of any complainant or obstructing the entrance to the
place of business of any of the above named complainants.

4. Using physical violence against any person; inflicting dam-
age to any real or personal property of any person; or using de-
meaning and obscene language to or about any person; by reason
of such person continuing to patronize or trade with any of the
above named complainants.

5. Combining or colluding to interfere with the business of an-
other person or for the purpose of restraining or monopolizing
trade and commerce.

6. Picketing or patroling the premises of any of the above
named complainants for the reason that the Court finds that the
picketing is to attain an object which is in violation of the laws and
public policy of Mississippi, and has been conducted against and
onenseled| in a background of violence.

6 The Chancery Court found that the organization of the
boycott and the activities undertaken in support thereof violated
Mississippi common law and statutes prohibiting illegal second-
ary boycotts, Miss. Code Ann. §97-23-85 (1972), restraints of
trade, Miss. Code Ann. §75-21-1, et seq. (1972), and unlawful con-
spiracies, Miss. Code Ann. §97-1-1 (1972).

25a

view accords insufficient weight to the First Amend-
ment’s protection of political speech and association.
There is no suggestion that the NAACP, MAP or the
individual defendants were in competition with the
white businesses or that the boycott arose from paro-
chial economic interests. On the contrary, the boycott
grew out of a racial dispute with the white merchants
and city government of Port Gibson and all of the
picketing, speeches, and other communication asso-
ciated with the boycott were directed to the elimina-
tion of racial discrimination in the town. This differen-
tiates this case from a boycott organized for economic
ends, for speech to protest racial discrimination is
essential political speech lying at the core of the First
Amendment.

In aclosely analogous case, Machesky v. Bizzell, 5 Cir.,
1969, 414 F.2d 283, which also involved a state injunc-
tion against picketing and other speech in support of a
political boycott, we said:

“We start from the premise that peaceful
picketing carried on in a location open gen-
erally to the public is, absent other factors in-
volving the purpose or manner of the picket-
ing, protected by the First Amendment.”

The right to picket is not absolute. It must
be “asserted within the limits of not un-
reasonably interfering with the rights of
others to use the sidewalks and streets, to

2F.

have access to store entrances, and where con-
ducted in such manner as not to deprive the
public of police and fire protection.”. . . These
interests can, of course, be protected by state
injunctions narrowly drawn. The injunction
here, however, has not struck sucha balance.
It prohibits all picketing in the designated
business areas of Greenwood, for whatever
purpose and in whatever manner carried out.
This overshoots the mark and the situation
cannot be saved by Milk Wagon Drivers Union v.
Meadowmoor Dairies, 1941, 312 U.S. 287, 61
S.Ct. 552, 85 L.Ed. 836, acase premised on vio-
lence of an intensity and duration in no way
present here, or at least on the record before
the district court.

The injunction here in question goes even
further than prohibiting protected picketing.
It enjoins “loitering or congregating . . . to in-
duce, persuade, or coerce any person or per-
sons not to trade or to do other business with
... Complainants. .. .” This, for aught else
appearing, prohibits the distribution of leaf-
lets or even speech directed toward the boy-
cott effort.

We hold that the state court injunction here
is unconstitutionally overbroad in that it
lumps the protected with the unprotected in
such a way as to abridge important public

27a
interests in the full dissemination of public ex-

pression on public issues. We hold also that
where important public rights to full dissemi-
nation of expression on public issues are
abridged by state court proceedings, .. . the
district court is empowered to enjoin the state
court proceedings to the extent that they vio-
late these First Amendment rights.

Id. at 290-91 (citations omitted).

Machesky is fully consistent with other cases in which
this court has demonstrated its sensitivity to the
heightened First Amendment concerns implicated in
picketing or boycotts in furtherance of important
public issues as opposed to narrow economic interests.
See Kirkland v. Wallace, 5 Cir., 1968, 403 F.2d 413; Davis v.
Francois, 5 Cir., 1965, 395 F.2d 730; Kelly v. Page, 5 Cir.,
1964, 335 F.2d 114; see also Smith v. Grady, 5 Cir., 1969,
411 F.2d 181; Medrano v. Allee, S.D.Tex., 1972, 347
F.Supp. 605, aff'd in part and vacated in part on other grounds,
416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974);
Cottonreader v. Johnson, M.D.Ala., 1966, 252 F.Supp. 492.

This distinction has recently formed the basis for
holding that the Sherman Act’s prohibition against
concerted refusals to deal does not reach boycotts that
are intimately bound up with political speech and un-
related to any economic interests. Missouri v. National
Organization for Women, W.D.Mo., 1979, 467 F.Supp. 289;
cf. Eastern Railroad Presidents Conference v. Noerr Motor Freight,

28a

Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961);
United Mine Workers of America v. Pennington, 381 U.S. 657,
85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).

Given the procedural posture of this case, we have no
need and, hence, make no attempt to articulate a com-
prehensive scheme for reconciling a state’s interest in
regulating economic activity with the First Amend-
ment’s protection of political speech. On review of a
preliminary injunction, we need only decide whether
the district court could, without abusing its discretion,
have concluded that the federal plaintiffs were likely to
prevail ultimately on the merits of their First Amend-
ment claims. The district court did not abuse its dis-
cretion on this issue.

The second requirement for a preliminary injunction
is that the plaintiff will suffer irreparable injury
without the injunction. The district court found that
the sweeping restrictions on speech and association
embodied in the state Chancery Court’s injunction
would seriously impair the federal plaintiff’s rights
under the First Amendment, and that such restric-
tions in themselves constitute an irreparable injury. See,
e.g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14
L.Ed.2d 22 (1965); Machesky v. Bizzell, 5 Cir., 1969, 414
F.2d 283. In the circumstances of this case, the en-
forcement of this injunction could effectively paralyze
all efforts by the NAACP and the individual federal
plaintiffs to protest racial discrimination in Port Gibson
and in Claiborne County.

29a

With regard to the damages award, the district court
found, on the basis of extensive affidavits and finan-
cial statements submitted by various national officials
of the NAACP, that either the execution of the $1.25
million damage award or the posting of a $1.56 million
supersedeas bond (as required by Mississippi law)
would effectively bankrupt the national organization
bringing all of its activities throughout the United
States to an immediate and indefinite halt. In short, the
NAACP’s financial condition was so precarious that
execution of the judgment or posting of the bond
would have entailed the virtual disappearance of the
NAACP as a functional entity.

MAP, which operates the Headstart Program in Mis-
sissippi, providing breakfasts and services to over 5,000
small children and employing over 1,000 persons, dem-
onstrated by affidavit that payment of the state court
judgment or posting of the bond would exhaust all of
MAP’s available assets and revenues, requiring the
cessation of the Headstart Program in Mississippi. The
individual state court defendants who are jointly and
severally liable for the entire amount of the judgment
would obviously lose all their assets and property if the
judgment were executed against them. In these cir-
cumstances, we discern no abuse of discretion in the
district court’s finding of irreparable injury.

The third requirement for entry of a prelyminary in-
junction is that the prospective harm to thé plaintiffs
must outweigh the injury to the defendants caused by

30a

the injunction. In this case the state court judgment is
earning interest at the lawful rate during the pend-
ency of the appeal in the Mississippi courts and the dis-
trict court ordered the federal plaintiffs to post a bond
in the amount of $110,000 to protect the federal
defendants should they subsequently be found to have
been wrongfully enjoined. The district court found
these provisions adequate to the protection of the fed-
eral defendants’ pecuniary interests. Given the
NAACP’s impaired financial condition in 1976, the dis-
trict court found no heightened risk of insolvency
attendant on delay. Further, as the district court’s
order permitted enforcement of those parts of the state
court’s injunction prohibiting violence, threats, or
other coercion, the federal defendants are protected
against any conduct by the federal plaintiffs lying out-
side the bounds of constitutional privilege. The district
court did not abuse its discretion in concluding that the
federal defendants would suffer no serious injury from
issuance of the federal injunction.

Finally, the district court found that issuance of its
injunction was in the public interest. We find no abuse
of discretion here for it is well established that the
public has a vital interest in the vigorous and free dis-
cussion of public issues. See, e.g., Machesky v. Bizzell, supra.

Il.

We next consider the district court’s order which re-
inforces and effectuates those parts of the preliminary
injunction of December 15, 1969 enjoining the state

3la

court plaintiffs from interfering with the funds claim-
ed by the State Conference and Local Branches on de-
posit in the defendant state banks. Appellants have ad-
vanced a lengthy and elaborate argument designed to
demonstrate either that the December 15 injunction
never took effect due to the failure of the federal plain-
tiffs to post a necessary bond or that the December 15
injunction was necessarily dismissed when the injunc-
tion of June 9, 1970, along with the amended com-
plaint of December 15, 1969 was dismissed for lack of
subject matter jurisdiction pursuant to our decision in
Henry I. These contentions are without merit.

First, the December 15 injunction required the post-
ing of a bond by the federal plaintiffs only upon with-
drawal of the funds on deposit in the state banks; those
portions of the injunction barring interference with
these funds by the federal defendants were in no way
conditioned on the posting of a bond. Second, the court
in Henry I took great pains to explain that the Decem-
ber 15 injunction was not at issue in that appeal and
was, therefore, unaffected by our decision therein. See
Henry I, 444 F.2d 1300, 1305-06 & nn. 4, 5, 6, 7, 8 & 9.
After carefully distinguishing the December 15 in-
junction and the June 9 injunction, the court indicated
that the federal defendants had never appealed the
entry of the former injunction and that the discussion
of the December 15 order had been

for only two reasons: (1) to set the stage for
our discussion of the June 9, 1970 order, and

32a
(2) to notify the parties that the December 15

interlocutory injunction against the attach-
ments remains standing, pending a final
determination by the district court of the
many difficult questions raised by the orig-
inal plaintiffs’ procedural due process claim
. . « AS we proceed to what really concerns us
on this appeal, therefore, we understand that
the Banks and the state court complainants
are presently preliminarily enjoined from
withholding or causing to be withheld ...
funds belonging to the original plaintiffs
deposited in the defendant Banks.

Id. at 1306. In subsequently implementing this court’s
judgment by vacating the June 9 order, the district
court specifically referred only to the amended com-
plaint filed in December 1969, not to the original com-
plaint filed in November 1969.

Appellants’ present contention that the amended
complaint of December 1969 in all respects superseded
the original complaint of November 1969 so that dis-
missal of the former necessarily involved dismissal of
the latter is contrary to the clear understanding of this
court and the district court regarding the separate stat-
us of the complaints and the orders based thereon. See
Henry v. First National Bank of Clarksdale, N.D. Miss., 1976,
424 F.Supp. 633, 636. There is no reason now for us to
revise our earlier appreciation of the continued vitality
of the December 15 injunction.

33a

Given that the December 15 order has been un-
interruptedly in force since its entry, the remaining
issues concerning the issuance of the order in October
1976 are readily resolved. The district court clearly had
continuing jurisdiction over the issues and parties orig-
inally involved in 1969. As the December 15 injunction
has been continuously in effect since 1969, any attempt
by the federal defendants to interfere with the funds in
the state banks would plainly be in derogation of an
outstanding order of the federal court. The subse-
quent finding by the state Chancery Court that the
funds in the state banks belong to the national NAACP
and the Chancery Court’s order directing the banks to
pay the funds over to the state court plaintiffs could not
affect the prior order of the federal district court.

Section 2283, the Anti-Injunction Act, was no bar to
the entry of the 1976 order in these circumstances. The
section specifically permits stays of state court pro-
ceedings by a federal court “where necessary .. . to
protect or effectuate its judgments.” We conclude that
in this case the December 15 preliminary injunction
constitutes a judgment for purposes of this exception
to the Anti-Injunction Act. See Doe v. Ceci, 7 Cir., 1975,
517 F.2d 1203, 1206-07; Wright, Miller & Cooper, Fed-
eral Practice and Procedure: Jurisdiction §4226, at 347
(1978); see also Swann v. Charlotte-Mecklenburg Board of
Education, 4 Cir., 1974, 501 F.2d 383; Montgomery County
Board of Education v. Shelton, N.D.Miss., 1970, 327 F.Supp.
811. In explaining the purpose of this exception the
Supreme Court ‘as stated that “some federal injunc-

34a

tive relief may be necessary to prevent a state court
from so interfering with a federal court’s considera-
tion or disposition of a case as to seriously impair the
federal court’s flexibility and authority to decide that
case.” Atlantic Coast Line Rail Co. v. Brotherhood of Locomotive
Engineers, 398 U.S. 281, 295, 90 S.Ct. 1739, 1747, 26
L.Ed.2d 234 (1970).

The failure at this juncture to enforce the December
15 preliminary injunction would unquestionably im-
pair the district court’s ability to resolve the issues
underlying that injunction, for the state court judg-
ment expressly authorizes the state court plaintiffs to
execute the damages award against the funds which
are the subject of the earlier federal dispute. More-
over, the state banks, defendants in both the federal
and state actions, have been placed in the unacceptable
position of being ordered by the state Chancery Court
to do precisely what the federal injunction orders them
not to do: pay the disputed funds over to the state court
plaintiffs. The only satisfactory resolution of this un-
seemly tension lies in delaying execution of the state

court judgment until the prior federal injunction hgs
been removed.

There is no basis for federal abstention under the
Younger doctrine or any other theory in these circum-
stances surrounding the entry of anorder to protect an
extant prior injunction of the federal court. The sub-
stantive merits of the December 15 injunction are not
before us on the instant appeal. Accordingly, we con-

35a

clude that the district court acted properly in entering
the order in October 1976 preventing action in dero-
gation of the December 15 injunction.

III.

Finally, we consider the order entered on behalf of
the United States as intervenor enjoining the state
court plaintiffs from executing the state court judg-
ment against or otherwise interfering with the funds
or property in the possession of MAP received from the
United States exclusively for the purpose of operating a
Headstart Program in Mississippi. The United States
petitioned to intervene in this case pursuant to Rule 24,
Fed.R.Civ.P., 28 U.S.C.,” claiming that its property

7 Rule 24 provides in pertinent part:
Rule 24. Intervention

(a) Intervention of Right. Upon timely application any-
one shall be permitted to intervene in an action: (1) when a stat-
ute of the United States confers an unconditional right to inter-
vene; or (2) when the applicant claims an interest relating to the
property or transaction which is the subject of the action and he is
so situated that the disposition of the action may as a practical
matter impair or impede his ability to protect that interest, unless
the applicant’s interest is adequately represented by existing par-
ties.

(b) Permissive Intervention. Upon timely application any-
one may be permitted to intervene in an action: (1) when a statute
of the United State- confers aconditional right to intervene; or (2)
when an applicant's claim or defense and the main action have a
question of law or fact in common. When a party to an action re-
lies for ground of claim or defense upon any statute or executive
order administered by a federal or state governmental officer or
agency or upon any regulation, order, requirement, or agreement
issued or made pursuant to the statute or executive order, the of fi-
cer or agency upon timely application may be permitted to inter-
vene in the action. In exercising its discretion the court shall con-
sider whether the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.

36a

interest in all funds granted to MAP could not be sub-
jected to judicial process in the Mississippi state courts
without the consent of the United States. The district
court allowed intervention and granted preliminary re-

lief.

Before addressing the merits of the preliminary in-
junction, we decide several preliminary questions.
First, the district court had jurisdiction under 28 U.S.C.
§13458 over the claims of the United States in this ac-
tion. Second, the district court committed no error in
allowing the United States to intervene as a party plain-
tiff. Appellants’ sole contention on appeal regarding
the grant of the United States’ application to intervene
is that the application was not timely. The determina-
tion of the timeliness of a request to intervene rests
within the sound discretion of the district court and
will be disturbed on appeal only if there has been an
abuse of discretion. See, e.g., Stallworth v. Monsanto, 5 Cir.,
1977, 558 F.2d 257; McDonald v. E. J. Lavino Co., 5 Cir.,
1970, 430 F.2d 1065; Smith Petroleum Service, Inc. v. Mon-
santo, 5 Cir., 1970, 420 F.2d 1103; Wright, Miller &

Cooper, Federal Practice and Procedure: Civil §1916
(1978).

There was no abuse of discretion. The United States
moved to intervene in the federal court action on

8 28 U.S.C. §1345 provides:
§1345. United States as plaintiff
Except as otherwise provided by Act of Congress, the district
courts shall have original jurisdiction of all civil actions, suits or
proceedings commenced by the United States, or by any agency or
officer thereof expressly authorized to sue by Act of Congress.

37a

October 7, 1976, a mere six days after the filing of the
supplemental and amended complaint had initiated
proceedings concerning the state Chancery Court S
judgment and decree of August 19, 1976. The inter-
vention by the United States caused no delay in the fed-
eral action or prejudice to the appellants.

Third, the Anti-Injunction Act, 28 U.S.C. §2283,
does not apply when the United States seeks to stay
proceedings in a state court. “The frustration of super-
ior federal interests that would ensue from precluding
the Federal Government fr »m obtaining a stay of state
court proceedings, except under the severe restric-
tions of 28 U.S.C. §2283, 28 U.S.C.A. §2283, would be
so great that we cannot reasonably impute such a pur-
pose to Congress from the general language of 28
U.S.C. §2283, 28 U.S.C.A. §2283, alone.” Leiter Min-
erals, Inc. v. United States, 352 U.S. 220, 226, 77 S.Ct. 287,
291, 1 L.Ed.2d 267 (1957); N.L.R.B. v. Nash-Finch Co., 404
U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971); N.L.R.B.
v. Roywood Corp., 5 Cir., 1970, 429 F.2d 964.

Fourth, we reject appellants’ contention that the
issuance of this injunction by the district court was
barred by the Younger doctrine. In our discussion of the
district court’s first order we explained our view that
Younger principles do not control in the circumstances
of this case, where neither the state nor important
state interests are involved. Moreover, there is an addi-
tional consideration when the United States as sov-
ereign is the party seeking injunctive relief in a federal

38a

court. The same factors that militate against applica-
tion of section 2283 to the national government also
counsel against extension of the Younger doctrine to
suits by the United States.

Having concluded that there was no bar to the entry
of a preliminary injunction in favor of the United
States, we now consider the injunction itself. As dis-
cussed above in our consideration of the first injunc-
tion, the standard of appellate review of a preliminary
injunction is simply whether there has been an abuse of
discretion by the district court. With regard to the four
requirements for a preliminary injunction, the district
court found, first, that the United States was likely to
succeed on the merits of its claim. It is well established
that a property interest of the United States cannot be
subjected to judicial process without its consent. Mari-
copa County v. Valley National Bank, 318 U.S. 357, 362, 63
S.Ct. 587, 589, 87 L.Ed. 834 (1943); United States v. Ala-
bama, 313 U.S. 274, 281-82, 61 S.Ct. 1011, 1014, 85
L.Ed. 1327 (1941). “A proceeding against property in
which the United States has an interest is a suit against
the United States.” Id. at 282; 61 S.Ct. at 1014.

The only question, therefore, is whether the United
States had a property interest in MAP’s funds and
property sufficient to invoke tne above principle. The
United States claimed an equitable lien in such funds
and property. We find that the district court did not
abuse its discretion in deciding that the United States
was likely to succeed in its claim that it had an equit-

39a
able interest in MAP’s property and that this interest
could not be subjected to state judicial process without
the consent of the United States.

It is undisputed that virtually all of MAP’s assets de-
rive from grants made through the Department of
Health, Education and Welfare under the Headstart-
Follow Through Act, 42 U.S.C. §2928, et seq. (1976), and
predecessor statutes authorizing funding for qualified
Headstart Programs. The Act carefully delineates the
purposes for which grant funds may be expended. Al-
though MAP is a private, nonprofit corporation and
not a federal agency, extensive and detailed regula-
tions govern its expenditure of federal funds in order to
ensure the use of grant funds for approved purposes.
See 45 C.F.R. Part 74 (1977). The United States retains a
reversionary interest in all grant funds and in all prop-
erty purchased with such funds that can no longer be
used for the narrow purposes specified in the Act and
regulations. Id. A Headstart grantee must undergo an
annual audit to determine whether it has spent grant
funds ina fashionconsistent with “applicable laws, reg-
ulations and directives.” 45 C.F.R. §1301.3-3(a).

The district court could properly conclude that the
United States’ continuing interest in grant funds met
the criteria for creation of an equitable lien. See Avco
Delta Corp. Canada Ltd. v. United States, 7 Cir., 1973, 484
F.2d 692, 703, cert. denied sub nom. Canadian Parkhill Pipe
Stringing, Ltd. v. United States, 415 U.S.931,94 S.Ct. 1444,
39 L.Ed.2d 490 (1974); Citizens Co-Op Gin v. United States, 5

40a

Cir., 1970, 427 F.2d 692, 695; Morrison Flying Service v.
Deming National Bank, 10 Cir., 1968, 404 F.2d 856, 861,
cert. denied, 393 U.S. 1020, 89 S.Ct. 628, 21 L.Ed.2d 565
(1969). The equitable as well as the legal property inter-
ests of the United States enjoy immunity from uncon-
sented judicial process. See Blake Construction Co. v.
American Vocational Assoc., Inc., 1969, 136 U.S.App.D.C.
6, 419 F.2d 308, and cases cited.

With regard to the other criteria for issuance of a
preliminary injunction, the United States has ade-
quately demonstrated that it would suffer irreparable
harm from the destruction of its Headstart grantee in
Mississippi. MAP provides food, medical and other
services to roughly 5,000 needy children. Execution of
the state damage award against MAP would effective-
ly eliminate the Headstart Program in Mississippi for
the year or longer it would take to establish a new
grantee. Providing necessary aid to these children rep-
resents an important national policy which would be
severely frustrated by execution of the state judgment.
The district court did not abuse its discretion in find-
ing that the important public interests implicated in the
Headstart Program outweighed the interest of the
state court plaintiffs in immediate execution of the
state judgment against MAP.

Conclusion

Having carefully examined each of the preliminary
injunctions entered by the district court and having

4la

found that each satisfies the requirements for issu-
ance of a preliminary injunction and that there exists
no extrinsic bar to the entry of any of the injunctions,
we affirm the district court as to each of the orders. We
have also considered appellants’ other contentions and
find them without merit. The judgment is, therefore,

AFFIRMED.

42a

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 76-4200

D.C. Docket No. CA-DC-69-58-S

AARON HENRY, ET AL.,
Plaintiffs-Appellees,

versus

FIRST NATIONAL BANK
OF CLARKSDALE, ET AL.,

Defendants-Appellants,
versus

MISSISSIPPI ACTION FOR PROGRESS, INC.,
| Defendant-Appellee.

Appeal from the United States District Court for the
Northern District of Mississippi

Before THORNBERRY, AINSWORTH and
MORGAN, Circuit Judges.

43a

JUDGMENT

This cause came on to be heard on the transcript of
the record from the United States District Court for
the Northern District of Mississippi, and was argued by
counsel;

ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment
of the said District Court in this cause be, and the same
is hereby, affirmed;

It is further ordered that the defendants-appellants
pay to the plaintiffs-appellees and defendant-appellee
the costs on appeal to be taxed by the Clerk of this
Court.

May 21, 1979

ISSUED AS MANDATE: AUG. 14, 1979

A true copy
Test:
Clerk, U.S. Court of Appeals, Fifth Circuit

ls|/ BRENDA HAUCK
Deputy

New Orleans, Louisiana

Aug. 14, 1979

44a

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

Office of the Clerk
August 6, 1979
TO ALL PARTIES LISTED BELOW:

NO. 76-4200 — AARON HENRY, ET AL v. FIRST
NATIONAL BANK OF CLARKS-
DALE, ET AL. v. MISSISSIPPI AC-
TION FOR PROGRESS, INC.

Dear Counsel:

This is to advise that an order has this day been
entered denying the petition for rehearing, and no
member of the panel nor Judge in regular active serv-
ice on the Court having requested that the Court be
polled on rehearing en banc (Rule 35, Federal Rules of
Appellate Procedure; Local Fifth Circuit Rule 16) the
petition for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for
issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,
Clerk

45a

Is) SALLY HAYWARD

Deputy Clerk

cc: Mr. Dixon L. Pyles

Mr. W. E. Gore, Jr.
Mr. Crane D. Kipp
Messrs. Robert E. Kopp
Neil H. Koslowe
Messrs. Nathaniel R. Jones
Charles E. Carter
Mr. Robert A. Murpy
Mr. Dennis J. Dimsey
Messrs. Allen R. Snyder
Benton R. Hammond
Vincent H. Cohen
Messrs. Thomas E. Royals
Robert H. Taylor, Jr.
Mr. H. M. Ray

46a

Aaron HENRY et al.,
Plaintiffs,

versus

FIRST NATIONAL BANK
OF CLARKSDALE, et al.,

Defendants.
No. DC 69-58-S.

United States District Court,
N.D. Mississippi,
Delta Division.

Oct. 20, 1976.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

This action is before the court on motions for pre-
liminary injunctions filed herein by plaintiffs National
Association for the Advancement of Colored People
(NAACP), Mississippi State Conference of the Nation-
al Association for the Advancement of Colored People
(State Conference) and Coahoma County Branch of
the National Association for the Advancement of
Colored People (Coahoma Branch), and the United
States of America, and intervenor herein.

47a

Time will not permit the preparation of an exhaus-
tive opinion. Consequently, the court will deal with
only the most important issues.

A resume of the background of this litigation is
necessary for an understanding of the court’s findings
and conclusions as herein expressed. This court and the
United States Court of Appeals for the Fifth Circuit
have published opinions which give a factual back-
ground of the case. These opinions are, therefore,
made a part hereof in order to establish the history of
the controversy between the parties. Henry ov. First
National Bank of Clarksdale, 50 F.R.D. 251 (N.D.Miss.
1970), Henry v. First National Bank of Clarksdale, 444 F.2d
1300 (5th Cir. 1971). The facts as set out in detail in
both opinions are adopted by the court for the purpose
of its findings and conclusions stated herein.

On the remand pursuant to the findings of the Fifth
Circuit, an order was entered herein on June 14, 1972
vacating this court’s injunctive order of June 9, 1970,
and dismissing the amended complaint for lack of juris-
diction.

The state court complainants, defendants herein,
contend that the entry of the order just above-men-
tioned deprives this court of jurisdiction of the action.
The court does not agree. Judge Thornberry speaking
for the Fifth Circuit following a discussion of this
court’s December 15, 1969 injurxtive order and the
part it played on the appeal, said:

48a

To the extent that we have discussed the
December 15 order, we have done so for only
two reasons: (1) To set the stage for our dis-
cussion of the June 9, 1970 order, and (2) to
notify the parties that the December 15 inter-
locutory injunction against the attachments
remains standing, pending a final determina-
tion by the district court of the many difficult
questions raised by the original plaintiffs’ pro-
cedural due process claim that all their funds
have been illegally attached without notice
and hearing, pursuant to a Mississippi non-
resident attachment statute, when these
plaintiffs are in fact residents of the State of
Mississippi and not even parties to the state
civil suit, the filing of which generated the
attachments. Cf., e.g., Wisconsin v. Constanti-
neau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d
515 (1971). As we proceed to what really con-
cerns us on this appeal, therefore, we under-
stand that the Banks and the state court com-
plainants are presently preliminarily enjoin-
ed from withholding or causing to be with-
held pursuant to writs of attachment issued in
connection with Cause No. 78353 in Chan-
cery Court of the First Judicial District of
Hinds County, Mississippi, funds belonging to
the original plaintiffs deposited in the defend-
ant Banks. - |

444 F.2d 1306.

49a

The issues created by the complaint and defendants’
answer thereto have not been tried and no disposition
has been made of the same. The injunctive order
rendered by the court on December 15, 1969, is there-
fore in force and provides specifically as follows:

Defendants herein, who are complainants
in Cause No. 78353 in Chancery Court of the
First Judicial District of Hinds County, are
preliminarily enjoined, subject to final action
of this court, from subjecting or causing to be
subjected in any way funds of plaintiffs de-
posited in the defendant banks to attachment
or other process causing plaintiffs to be de-
prived of the use of their funds.

The state court’s final decree provided that the funds
just mentioned had been properly attached in that pro-
ceedings as the property of the non-resident defend-
ant NAACP and directed that the said Banks pay tothe
complainants in the state proceedings the funds which
are the subject of this court’s injunctive order.

It is apparent that any attempt by the state court
complainants to enforce the decree of the state court
and require the defendant banks to comply therewith
would be a violation of this court’s injunctive order of

- December 15, 1969. In order to protect and effectuate

this court’s-said judgment the motion for preliminary
injunction as regards said funds must be sustained, 28

U.S.C. §2283.

50a

It may be well at this juncture to discuss the position
of the state court complainants that the court is pro-
hibited by Section 2283 from granting the preliminary
injunction requested by the parties. The injunctive re-
lief requested does not contemplate interference with
the proceedings in the state court. The relief request-
ed applies to the enforcement of the judgment by the
individual state court complainants and extends only
for that period necessary to permit an exhaustion of
appellate remedies. The final decree of the state court is
now the subject of review by the Supreme Court. The
appeal has been perfected and the state court defend-
ants have complied with the cost bond requirements
fixed by the state court. The appeal will take its usual
course through the state’s appellate procedure and be-
cause of the complexity of the issues involved there will
be several years involved in this process.

The state court complainants question the court’s
jurisdiction as a single-judge court, contending that
since the case involves the constitutionality of a state
statute and enforcement thereof, a court of three
judges is required. 28 U.S.C. §2281. The court rejects
this contention for two reasons. First, section 2281 has
been repealed by an Act of Congress effective August
12, 1976. Public Law 94 381, 94th Congress, S. 537, 45
LW 1. Section 7, of the Act provides that it shall not
apply to any action commenced onor before the date of
enactment. While the action sub judice was originally
commenced prior to the enactment of the law, the facts
and circumstances giving rise to the filing of the
amended complaint did not occur until after the effec-

5la

tive date. The final decree of the state court awarding
monetary and injunctive relief to the state court com-
plainants was not ntered until August 19, 1976. The
cause of action presented by the amended complaint
herein did not come into existence until that time.
Under such conditions Public Law 94-381 is fully ap-
plicable and a court of three judges is not authorized.
Second, plaintiffs do not challenge the constitutionality
of the supersedeas bond requirement of Section 11-51-
31 Miss.Code 1972. Rather, they argue that enforce-
ment of the state chancery court injunction and dam-
age award, which prohibit and penalize both protected
and unprotected activities, would irreparably abridge
constitutionally protected rights. The court agrees
with this contention. A three-judge court is not re-
quired.

The United States by its intervenor’s complaint and
accompanying motion, seeks to protect its interest in
the funds and property of Mississippi Action for
Progress, Inc., (MAP). This organization is a non-
profit, tax exempt, corporation duly organized and
existing pursuant to Mississippi law. MAP receives
grants-in-aid from the Department of Health, Educa-
tion and Welfare (HEW) pursuant to Title V of the Eco-

‘nomic Opportunity and Community Partnership Act

of 1974, 42 U.S.C. §2921, et seq., (Head Start Act) for
the operation of a Head Start Program in Mississippi.
The Head Start Act and regulations promulgated pur-
suant thereto, provide that title to all property pur-
chased with grant funds is vested in the grantee solely
for the purpose of enabling the grantee to carry out the

52a

objective of the grant, i.e., operate a Head Start Pro-
gram as authorized by the Head Start Act, 42 U.S.C.
§2921, et seq. The United States has a full and com-
plete lien interest in all funds and property purchased
by MAP with funds advanced by HEW. In order to
protect the interest of the United States in these funds
and property, it is necessary to enjoin defendants from
subjecting, in any way, such funds and property to the
satisfaction of the state court’s monetary awards. The
objective of the Head Start Program would be curtail-
ed, if not eliminated, if such injunctive relief is not
granted.

The courts have long recognized and enforced the
rule that no property interest of the United States can
be subjected to judicial process without the consent of
the sovereign. United States v. Alabama, 313 U.S. 274, 281,
61 S.Ct. 1011, 85 L.Ed. 1327 (1941), Maricopa County v.
Valley National Bank, 318 U.S. 357, 362, 63 S.Ct. 587, 87
L.Ed. 834 (1943).

The United States is now threatened with im-
mediate, irreparable harm as the result of pending en-
forcement of the state judgment against MAP. The
court concludes that injunctive relief is appropriate.
Security is not required of the United States, Rule 65(c)
Fed.R.Civ.P.

Coming now to the consideration of the motion of
the NAACP the Mississippi State Conference and Coa-

Be ES

53a

homa Branch for injunctive relief against the enforce-
ment of the state decree, the court concludes that the
motion is well taken and should be sustained.

The amended complaint and the injunctive relief
granted plaintiffs against the prosecution of the state
action in the first instance were the subjects of an
appeal to the Fifth Circuit. Henry v. Bank of Clarksdale, 444
F.2d 1300 (1971). Judge Thornberry, speaking for the
court reversed this court’s decision to stay the state
court proceedings and directed the dissolution of the
injunction and dismissal of the amended complaint.
Pursuant to the mandate issued by the Fifth Circuit, on
June 14, 1972, this court entered an order dismissing
the amended complaint and vacating its injunctive
order of June 9, 1970.

Judge Thornberry’s reversal was based upon a find-
ing that the record under review did not reveal a“state
action” to support the injunctive relief sought by plain-
tiffs. Judge Thornberry said

Since we conclude that there is no“state ac-
tion” to be found in the mere filing of a private civil
tort action in state court, the district court’s order
of June 9, 1970, enjoining the prosecution of
the pending state civil action should be vacat-
ed and the cause remanded with instructions
to dismiss the amended complaint for lack of
jurisdiction. [Emphasis supplied.] 444 F.2d at
1312.

S4a
As to the proposition that it is essential to civil rights
jurisdiction that the deprivation of rights contested be
“state action”, Judge Thornberry made this observa-
tion

The difficult problem has always been to
pinpoint the boundary between state action
and nonstate, or private action. In this case,
we must decide on which side of the bound-
ary lies the mere commencement of a private tort suit in
state court. [Emphasis supplied.] 444 F.2d at
1308.

Other pertinent excerpts from Judge Thornberry’s
opinion are:

To apply this test to the mere filing of a
private civil complaint in a state court and con-
clude that “state action” results would be to
demean the judicial process. It would be to
forget that a court is an open forum before
which each party is to have a full and fair
opportunity to make his case. Only after both
parties to a private civil action here had their
day in court and thecourt has reached its deci-
sion and rendered its judgment does the full
power of the state come into play in enforcing
the judgment..

* * * * * ®

At the time the court below issued its in-
junction, the Mississippi Chancery Court had
made no dispositive determinations, factual or

55a
legal, on any of these difficult issues. In other
words, the State, through its courts, had
taken a stand on neither side of this very diffi-
cult controversy. 444 F.2d at 1310.

There has been a drastic change in circumstances
since Judge Thornberry considered the sufficiency of
the allegations expressed in the amended complaint.
The parties have now had their day in the state trial
court and the court has rendered its judgment. The
plaintiffs have the right of appeal to the Mississippi
Supreme Court and then, if necessary, to the Supreme
Court of the United States. The state statutes, how-
ever, make it mandatory that a supersedeas bond be
posted if execution and enforcement of the judgment is
to be stayed during the appellate process. The parties
have sought relief from the requirements of the bond
statute in the trial court and inthe Supreme Court, but
to no avail. They have exhausted all state remedies in
that regard. As the matter now stands, absent federal
intervention, the plaintiffs must post the bond re-
quired by the Mississippi Statute or suffer the seizure
and sale of their property. Should they be successful on
appeal, their only recourse would be to pursue aclaim
against the judgment creditors for an unwarranted
seizure and sale of their property. The state court com-
plainants were not required to post bond in the state
court attachment proceedings, and are not required to
give security for any loss or damage which plaintiffs
might suffer on account of the seizure and sale of the
property, should the trial court’s judgment be set aside
or vacated on appeal.

56a |

The record reflects that plaintiffs will suffer im-
mediate and irreparable harm if the enforcement of the
state decree by defendants is not enjoined. To comply
with the provisions of the decree enjoining protected
rights will seriously impair their rights to free speech
and association. This is in and of itself an irreparable in-
jury. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct.
1116, 14 L.Ed.2d 22 (1965). While the record reflects
that plaintiff NAACP can obtain funds to finance the
procurement of a supersedeas bond, to accomplish this
NAACP will be required to borrow a substantial por-
tion of the amount of the bond and to deplete funds
necessary to conduct its normal operations. To repay
these sizeable loans the NAACP will have to curtail
practically all of its usual functions during the pend-
ency of appeal, shown to be a period of two or three
years. Many current projects will have to be termi-
nated and new projects cannot be commenced.

The granting of injunctive relief will not cause sub-
stantial harm to the defendants. The. decree bears
interest at the lawful rate from the date of its entry and
there is no showing that a delay in enforcing the de-
cree will result in a dissipation of the assets of plaintiffs
now subject to levy. This problem, if it exists, can be
alleviated by requiring an injunction bond in an appro-
priate amount.

The court finds the granting of the injunction to be in
the public interest.

57a

The court has concluded that the Mississippi stat-
utes do not afford plaintiffs the due process required by
law in the settlement of their controversy with defend-
ants.

The existence of state action within the purview of
the equal protection clause of the Fourteenth Amend-
ment to the Constitution of the United States can be
determined only in the framework of the peculiar facts
or circumstances of a case. Burton v. Wilmington Parkway
Authority, 365 U.S. 715, 716, 81 S.Ct. 856, 857, 6 L.Ed.2d
45, 47 (headnote 7). Here in vindication of their rights,
the state statutes impose such a burden on plaintiffs as
to deprive them of rights guaranteed to them by the
First Amendment to the Constitution of the United
States. An injunction is essential to protect those
rights.

The court will enter appropriate orders of injunction.

58a

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION

AARON HENRY, et al,
Plaintiffs,

versus NO. DC 69-58-S

FIRST NATIONAL BANK
OF CLARKSDALE, et al,
Defendants.

ORDER

October 20, 1976

This cause having come on to be heard on motion of
the plaintiffs National Association for the Advance-
ment of Colored People, Mississippi State Conference
of the National Association for the Advancement of
Colored People and Coahoma County Branch of the
National Association for the Advancement of Colored
People, for a preliminary injunction restraining the
defendants from taking any action to enforce the final
decree entered August 19, 1976, by the Chancery
Court of the First Judicial District of Hinds County,
Mississippi, in Claiborne Hardware Company, et al, v. Nation-
al Association for the Advancement of Colored People, et al, Cause
No. 78353, until said plaintiffs herein have fully
exhausted all appeals to the Mississippi Supreme Court
and, if necessary, to the United States Supreme Court,
the court finds, in part, as follows:

59a

1. That this court entered an injunction herein on
December 15, 1969, preliminarily enjoining defend-
ants herein, complainants in the state court proceed-
ings aforesaid, from subjecting or causing to be sub-
jected in any way funds of said plaintiffs Mississippi
State Conference of the National Association for the
Advancement of Colored People and Coahoma County
Branch of the National Association for the Advance-
ment of Colored People, deposited in the defendant
banks to attachment or other process causing said
plaintiffs to be deprived of the use of their funds;

2. That this court’s said preliminary injunction has
not been dissolved and is in full force and effect;

3. That defendants are the beneficiaries of certain
monetary awards contained in the state court decree
aforesaid, which contain the following provision:

The funds attached by the writs of attach-
ment in chancery in the hands of and under
the control of the hereinafter named resident
banks be and they are hereby declared to be
the funds of the nonresident defendant
NAACP. Each of the resident attachment
defendant banks as set forth hereinafter, be
and they are hereby directed to pay to the
seventeen above-named complaints [defend-
ants herein] to be applied toward the payment
of damages, the following sums:

60a

Attachment Defendants Amount of funds
First National Bank, Jackson G 249.86
The First National Bank
of Greenville 182.24
Bank of Cleveland 74.63
Commercial Bank, Woodville 171.48
Southern National Bank, Hattiesburg .33
State Youth Conference NAACP
Port Gibson Bank 247.59
Hancock Bank, Gulfport 151.92
Deposit Guaranty National Bank, 7,955.03

Jackson Mechanics, Bank of
McComb (branch bank)

Merchants & Farmers Bank, Meridian 98.04
Citizens Bank of Hattiesburg 693.82
First National Bank of Clarksdale 6,500.00

4. That any effort on the part of defendants to en-
force the previsions of the state court decree with ref-
erence to the money on deposit in the above-mention-
ed banks will be violated of this court’s aforesaid pre-

«liminary injunction;

5. That in order to effect this court’s judgment and
compel the obedience thereof, it is necessary that an in-
junction be issued restraining defendants from en-
forcing or allowing to be enforced, the above quoted
provision of the state court decree.

It is, therefore, this 20th day of October, 1976,
hereby

61a

ORDERED that the defendants herein, complain-
ants in the above-described state action, and each of
them, their officers, agents, servants, employees,
attorneys, and those in active concert or participation
with them be restrained and enjoined from seizing, or
in any way causing the funds in the banks aforesaid to
be paid in accordance with the decree of the state court
to said defendants.

ls} ORMA R. SMITH
UNITED STATES DISTRICT
JUDGE

ORDER FOR SERVICE

The clerk is directed to serve, by United States Mail,
Return Receipt Requested, aceriified copy of the above
and foregoing order upon all counsel of record, which
service shall constitute notice to all parties of the issu-
ance of the order.

This 20th day of October, 1976.
ls| ORMA R. SMITH

UNITED STATES DISTRICT
JUDGE

62a

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION

AARON HENRY, et al,
Plaintiffs,

versus NO. DC 69-58-S

FIRST NATIONAL BANK
OF CLARKSDALE, et al,
Defendants.

ORDER
October 20, 1976

Upon consideration of the motion for a preliminary
injunction filed herein by plaintiffs, the National Asso-
ciation for the Advancement of Colored People, the
Mississippi State Conference of the National Associa-
tion for the Advancement of Colored People, and the
Coahoma Branch of the National Association for the
Advancement of Colored People, the memoranda and
affidavits filed in support thereof, the opposition
thereto and the other submissions of the parties with
respect to said motion, as well as oral arguments of
counsel for the parties, it appearing to the court that
said motion should be granted in order to avoid irrep-
arable injury to the plaintiffs, it is hereby

ORDERED that defendants in this action and their
officers, agents, servants, employees, and attorneys,
and all persons authorized by law or otherwise to en-

63a

force or execute judgments issued by the Chancery
Court for the First Judicial District of Hinds County, be
and they hereby are, restrained and enjoined pending
determination of this action, from taking any action to
enforce the final decree entered August 19, 1976, by
the Chancery Court for the First Judicial District of
Hinds County in Claiborne Hardware Co., et al, v. National
Association for the Advancement of Colored People, et al. (Cause
No. 78353), provided, however, that nothing in this order
shall prohibit the enforcement of those provisions of
the State Chancery Court’s injunction prohibiting
physical violence, damage to any real or personal prop-
erty, or obstructing the entrance to the place of busi-
ness of any complainant; it is further

ORDERED that the 45-day period for posting a
supersedeas bond be extended until 48 hours follow-
ing the dissolution or vacation of this preliminary in-
junction or any succeeding preliminary injunction
issued herein; it is further

ORDERED that the plaintiffs aforesaid first give
security in the sum of $100,000.00 for the payment of
such costs and damages as may be incurred or suffered
by any party who is found to be wrongfully enjoined,
such bond to be approved by the court or by the clerk of
the court, which said bond shall be in addition to the
$10,000.00 bond previously posted pursuant to this
court’s order dated October 1, 1976, which shall be
maintained in effect as security for the payment of such
costs and damages above mentioned; and it is further

/

/

/ 64a

ORDERED that pursuant to Rules 23(b)(2) and
23(c)(1) of the Federal Rules of Civil Procedure, plain-
tiff NAACP may maintain this action as a class action
on behalf of all individuals named as defendants in
Claiborne Hardware Co., et al, v. National Association for the
Advancement of Colored People, et al (Cause No. 78353).

Dated this 20th day of October, 1976.

Is| ORMA R. SMITH
UNITED STATES DISTRICT

JUDGE
ORDER FOR SERVICE

The clerk is directed to serve, by United States Mail,
Return Receipt Requested, acertified copy of the above
and foregoing order upon all counsel of record, which

service shall constitute notice to all parties of the issu-
ance of the order.

This 20th day of October, 1976.

ls| ORMA R. SMITH
UNITED STATES DISTRICT

JUDGE

65a

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI

DELTA DIVISION

AARON HENRY, et al,
Plaintiffs,

versus NO. DC 69-58-S

FIRST NATIONAL BANK
OF CLARKSDALE, et al,
Defendants.

ORDER
October 20, 1976

This cause having come on to be heard on motion of
United States for preliminary injunction, and the court
having considered said motion and having found that
the United States has established the basic requisites
for the issuance of preliminary injunctive relief includ-
ing likelihood of success on the merits, irreparable in-
jury if an injunction is not issued, greater injury to the
United States by the denial of an injunction than the in-
jury to the defendants if an injunction is granted, and
injury to the public interest if an injunction is not
granted, it is this 20th day of October, 1976, hereby

ORDERED that the defendants named in the plain-
tiff-intervenor’s complaint and each of them, their offi-
cers, agents, servants, employees, attorneys and those
in active concert or participation with them be re-

66a

strained and enjoined from seizing, attaching, levying
upon, selling, garnishing, or otherwise interfering with
the possession and use by Mississippi Action for
Progress, Inc., (M.AP) of grant funds received from the
Department of Health, Education and Welfare pur-
suant to the terms of Title V of the Economic Oppor-
tunity and Community Partnership Act of 1974, 42
U.S.C. §2921 et seq., or otherwise interfering with the
operation of the federally assisted program adminis-
tered by MAP by enforcing or attempting to enforce or
allowing any clerk of a court or sheriff to enforce or
attempt to enforce the final judgment of the Chancery
Court of the First Judicial District of Hinds County,
Mississippi, in the case of Claiborne Hardware Co., Inc., et
al, v. NAACP, et al, NO. 78-353, as against the funds,
property or other tangible assets of MAP pending
further orders of this court. |

Is} ORMA R. SMITH
UNITED STATES DISTRICT
JUDGE

ORDER FOR SERVICE

The clerk is directed to serve, by United States Mail,
Return Receipt Requested, acertified copy of the above
and foregoing order upon all counsel of record, which
service shall constitute notice to all parties of the issu-
ance of the order.

This 20th day of October, 1976.

Is} ORMA R. SMITH
UNITED STATES DISTRICT
JUDGE

67a

SUPREME COURT OF THE UNITED STATES
No. 71-605

Aaron Henry, et al.,
Petitioners,

versus
Claiborne Hardware Company, et al.

On Petition for Writ of Certiorari to the United
States Court of Appeals for the Fifth Circuit.

On Consideration of the petition for a writ of cer-
tiorari herein to the United States Court of Appeals for
the Fifth Circuit, it is ordered by this Court that the
said petition be, and the same is hereby, denied.

March 27, 1972

Mr. Justice Douglas is of the opinion that certiorari
should be granted. ee

Mr. Justice Marshall took no part in the considera-
tion or decision of this petition.

68a

SUPREME COURT OF THE UNITED STATES
No. 71-605

Aaron Henry, et al.,
Petitioners,

versus
Claiborne Hardware Company, et al.

A PETITION for rehearing having been filed in this

case,

UPON CONSIDERATION THEREOF, it is ordered
by this Court that the said petition be, and the same is
hereby, denied.

May 30, 1972

Mr. Justice Douglas and Mr. Justice Marshall took no
part in the consideration or decision of this petition.

69a

Aaron HENRY et al.,
Plaintiffs-Appellees,

versus
FIRST NATIONAL BANK
OF CLARKSDALE, et al.,
Defendants-Appellants.

No. 30295.

United States Court of Appeals,
Fifth Circuit.

June 23, 1971.

Rehearing and Rehearing En Banc
Denied Sept. 16, 1971.

Before RIVES, THORNBERRY and CLARK, Circuit
Judges.

THORNBERRY, Circuit Judge:

In this interlocutory appeal, filed pursuant to 28
U.S.C.A. §1292(a),1 the defendants-appellants, who

1 28U-S.C.A. §1292(a) provides in pertinent part that:
The courts of appeals shall have jurisdiction of appeals

from:
(1) Interlocutory orders of the district courts of the

70a

are also complainants in a pending state civil action
instituted by them in Mississippi Chancery Court, con-
test the propriety and validity of an order of the Unit-
ed States District Court of the Northern District of
Mississippi entered on June 9, 1970, 50 F.R.D. 251, in
which that court preliminarily enjoined the appellants
(hereinafter referred to as “state court complainants”)
from further prosecuting the aforementioned state
civil action then pending in the Chancery Court of the
First Judicial District of Hinds County, Mississippi. A
clear picture of what has transpired so far in the court
below, and of what is and is not raised in this interlocu-
tory appeal, is essential to an understanding of our dis-
position of this case.

I. Facts and Procedural History
A. Background

This controversy began in 1966 when a group of
Negro citizens in Port Gibson, Mississippi, began a
movement designed to protest what they considered to
be racial discrimination practiced by the white mer-
chants and local officials of Port Gibson. The group
sought to achieve fair employment practices, fair treat-
ment of Negro customers, and to otherwise eliminate
discrimination through the use of economic pressure in
the nature of a boycott of.the merchants in Port Gib-
son. The boycott was effectuated by picketing to pub-

United States, * * * granting, continuing, modifying, re-
fusing or dissolving injunctions, or refusing to dissolve or
modify injunctions, except where a direct review may be
had in the Supreme Court * **.

7la

licize the action, and by other non-picketing activities
such as leafleting and public meetings through which
citizens of Port Gibson were encouraged to join the
boycott. After this boycott had been in effect for sev-
eral years, twenty-three white merchants of Port Gib-
son, who were subject to the boycott, joined in a suit
filed on or about November 4, 1969, in State Chancery
Court in Hinds County, Mississippi, against (1) the
National Association for the Advancement of Colored
People, a nonresident (New York) corporation; (2) the
Mississippi Action for Progress, Inc. (MAP), a federal-
ly-funded nonprofit resident corporation, and (3)
approximately 150 named individuals, adult residents
of Mississippi alleged to be working “in concert with
and under the direction of * * * NAACP and MAP.”
(These three groups of defendants will be referred to
hereinafter as the “state court defendants”.) In addi-
tion, the state court complainants joined as defendants
approximately fifty banks in the State of Mississippi al-
leged to have in their possession funds, property and
effects of the nonresident defendant NAACP. The
state court complainants alleged that the state court
defendants had entered into aconspiracy in restraint of
trade and had engaged in secondary boycotts and other
malicious and wrongful interference with the state
court complainants’ businesses, all in violation of the
Mississippi Anti-Trust Laws. Miss.Code Ann. 1088,
1089 (1942).2 Among the allegations of the state court

2 §1088. Trust and combine — defined.

A trust or combine is acombination, contract, understanding or
agreement, expressed or implied, between two or more persons,
corporations or firms or association of persons or between any

72a

one or more of either with one or more of the others, when in-
imical to public welfare and the effect of which would be:

(a) To restrain trade;

(b) To limit, increase or reduce the price of a commodity;

(c) To limit, increase or redv ze the production or output of a
commodity;

(d) tohinder competition in the production, importation, man-
ufacture, transportation, sale or purchase of a commodity;

(e) To engross or forestall a commodity;

(f) To issue, own or hold the certificate of stock of any trust
and combine within the spirit of this statute knowing it to be such
at the time of the issue or the acquisition or holding such certifi-
cate; or

(g) To place the control to any extent of business or of the pro-
ceeds or earnings thereof, contrary to the spirit and meaning of
this chapter, inthe power of trustees, by whatever name called; or

(h) To enable or empower any other person than themselves,
their proper officers, agents and employees to dictate or control
the management of business, contrary to the spirit and meaning of
this chapter; or

(i) To unite or pool interest in the importation, manufacture,
production, transportation, or price of acommodity, contrary to
the spirit and meaning of this statute.

Any corporation, domestic or foreign, or any partnership, or in-
dividual, or other association, or person whatsoever, who is now,
or shall hereafter create, enter into, become a member of, or a par-
ty to any trust or combine as hereinabove defined shall be deemed
and adjudged guilty of a conspiracy to defraud and shall be subject
to the penalties hereinafter provided. Any persons, association of
persons, corporation, or corporations, domestic or foreign, who
shall be a party or belong to a trust and combine shall be guilty of
crime and upon conviction thereof shall for a first offense be fined
in any sum not less than one hundred dollars nor more than five
thousand dollars and for a second or subsequent offense not less
than two hundred dollars nor more than ten thousand dollars, and
may be enjoined by a final decree of the chancery court, ina suit by
the state on the relation of the attorney-general, from further
prosecution of or doing of the acts constituting the trust and com-
bine as defined in this chapter.

* ® * + *

1089. Additional contracts or combinations not allowed by law.

Any corporation, domestic or foreign, or individual, partner-
ship, or association of persons whatsoever, who, with intent to ac-
complish the results herein prohibited or without such intent,
shall accomplish such results to a degree inimical to public welfare,
and shall thus:

73a

complaint are charges that the state court defendants
abused the customers of the state court complainants
by threatening them with physical violence, address-
ing them with obscene and insulting language, destroy-
ing their property, and beating and assaulting them.
For relief, the state court complainants sought (A) to
have “the funds, property and effects of the nonresi-
dent defendant NAACP, its branches or auxiliary of-
fices in the State of Mississippi, in the hands of and
under the control of the resident (defendant Banks)
* * * attached” [presumably as asource of damages] and
held to await the decrees and orders of the court; (b) to

(a) Restrain or attempt to restrain the freedom of trade or pro-
duction;

(b) Or shall monopolize or attempt to monopolize the produc-
tion, control or sale of any commodity, or the prosecution, man-
agement or control of any kind, class or description of business;

(c) Or shall engross or forestall or attempt to engross or fore-
stall any commodity;

(d) Or shall destroy or attempt to destroy competition in the
manufacture or sale of a commodity, by selling or offering the
same for sale at a lower price at one place in the state than another
or buying or offering to buy acommodity at a higher price at one
place in the state than another, differences of freight and other
necessary expenses of sale and delivery considered;

(e) Or shall destroy or attempt to destroy competition by
rendering any service or manipulating, handling or storing any
commodity for a less price in one locality than in another, the dif-
ferences in the necessary expenses of carrying on the business
considered, shall be deemed and held a trust and combine within
the meaning and purpose of this section, and shall be liable to the
pains, penalties, fines, forfeitures, judgments, and recoveries de-
nounced against trusts and combines and shall be proceeded
against in manner and form herein provided, as in case of other
trusts and combines. And it shall be sufficient to make out a prima
facie case of a violation of this subdivision of this section to show
lower charge for the service therein mentioned in one locality than
another, or to show a higher price paid for a commodity in one
locality than another, differences of freight and other necessary
expenses of operating business considered.

74a

have all the defendants (except the Banks) enjoined
from “(1) Picketing in or about the business premises of
the complainants,.(2) stationing guards at or near the
viciity of the said premises of the complainants; (3)
soliciting, advising, threatening, coercing and con-
straining any person from trading with complainants;
(4) interfering with the businesses of the complain-
ants; (5) boycotting the businesses of the complain-
ants; (6) asking or demanding that others cease doing
business with the complainants; and (7) committing
acts in restraint of trade and/or in violation of the laws
of the State of Mississippi thereto appertaining;” and
(C) to recover damages in excess of 3.5 million dollars,
for which the state court defendants would be held
jointly and severally liable.

Shortly after filing of this State Chancery suit, and
without notice or hearing the Clerk of the Chancery
Court for the First Judicial District Court of Hinds
County commenced to serve writs of attachment
against what was purported to be the funds of the
NAACP on deposit in various Banks around Mississip-
pi, ordering the Banks to hold the funds of the NAACP
until further notice. The Clerk’s action was taken pur-
suant to Miss.Code Ann. §2730 (1942),3 which author-

3 §2730. Attachment against non-residents — how effects or indebtedness
bound.

When a bill shall be filed for an attachment of the effects of a
non-resident, absent or absconding debtor in the hands of persons
in this state, or of the indebtedness of the defendant in this state to
such non-resident, absent or absconding debtor, it shall be suffi-
cient to bind such effect or indebtedness, that the summons for
the defendant resident in this state shall have stated in or en-

75a

izes attachment of the property of non-residents with-
out notice or hearing. It turned out, however, that the
Banks upon which the writs of attachment were served
had frozen not the assets of the non-resident NAACP,
which was a named defendant in the state civil action,
but rather the assets of the Mississippi State Confer-
ence of the NAACP, and of all local NAACP branches
in the State of Mississippi, all of which organizations
claim not to have been named as defendants in the state
civil action, and claim further to be residents of the
State of Mississippi and therefore not subject to its
non-resident attachment statutes.

B. Proceedings Below: Stage I

Believing that their constitutional rights to due
process of law had been infringed by these attach-
ments, the Mississippi State Conference and the Coa-
homa Branch of the NAACP, acting individually and on
behalf of all other local branches similarly situated,
filed a section 1983 action in federal court against the
Banks which had frozen their funds pursuant to the
writs of attachment. The original complaint in this suit
was filed on November 7, 1969, by Aaron Henry, Presi-
dent of both the Mississippi State Conference and the
Coahoma Branch. (The parties to the original com-

dorsed upon it the nature and object of the suit, and that it is to
subject the effects in the hands of the resident defendant, and the
indebtedness of such defendant to the non-resident, absent or ab-
sconding debtor, to the demand of the complainant; or, instead of
such statement on the summons, a copy of the bill may be served
with the summons, and shall bind the effects or indebtedness from
the time of such service.

76a

plaint will be referred to hereinafter as the “original
plaintiffs.”) The original plaintiffs alleged that al-
though they are authorized by the NAACP, a New
York Corporation, to use the words “National Asso-
ciation for the Advancement of Colored People” as part
of the title of their respective associations, and have
agreed to abide by the constitution of the New York
NAACP, they are completely autonomous and inde-
pendent of the New York NAACP. They alleged
further that they were not defendants to the state civil
action and had received no notice of the suit, and that
they are residents of the State of Mississippi and there-
fore not subject to its non-resident attachment pro-
cedures. Charging that they had been and were being
irreparably injured in that all their operational funds,
which were used to carry out constitutionally protect-
ed activities such as a voter registration drive, had been
frozen without notice and hearing, and without even
being named in the state civil action, they sought “to
enjoin (the) attachment of property belonging to them
made without compliance with fundamental con-
stitutional guarantees.” The original plaintiffs thus
moved for a temporary restraining order and a prelim-
inary injunction. The court below held a hearing on the
original plaintiffs’ motion for a temporary restraining
order on November 17, 1969, at which one of the
defendant Banks appeared and moved to have the state
court complainants made parties to the proceeding on
grounds that the state court complainants claimed an
interest in the contested funds. The court below grant-
ed the Banks’ motion, as well as the original plaintiffs’

77a

motion for a temporary restraining order. The court
then set December 1, 1969 for a hearing on the orig-
inal plaintiffs’ motion for a preliminary injunction. At
this hearing, the state court complainants appeared and
contested the motion. At the conclusion of this hear-
ing, and on the strength of the evidence taken, along
with the various pleadings of the parties, the court
granted the original plaintiffs’ motion for preliminary
relief on December 15, 1969, ordering the defendant
Banks “to release all funds [of the original plaintiffs]
held by them pursuant to the writs of attachment * * *
upon posting by plaintiffs * * * of abondinthe amount
of 110% of [the] funds,” and further preliminarily en-
joining the state court complainants “from subjecting
or causing to be subjected in anyway funds of [the orig-
inal plaintiffs] deposited in the defendant Banks to
attachment or other process causing [the original plain-
tiffs] to be deprived of the use of their funds.”

No appeal was taken by either the Banks or the state
court complainants from the interlocutory injunction
of December 15, 1969.4 And although it may be within

4 At the same time the court below issued its preliminary in-
junction, it issued a separate order overruling the state court com-
plainants’ motion to dismiss the action. Se Memorandum Opin-
ion in No. DC 69-58-S, at 8 (Appendix, Vol. II, at 195). Inthe order
overruling the motion to dismiss, the court below provided that
the state court complainants might make application to the Fifth
Circuit for an interlocutory appeal from the order, pursuant to 28
U.S.C.A. §1292(b). The state court complainants did make appli-
cation to this Court for interlocutory appeal from the district
court’s order denying their motion to dismiss, and leave to appeal
was denied on March 4, 1970. Claiborne Hardware Co. et al. v.
Aaron Henry et al., Misc.No. 1583 (March 4, 1970). Although the

78a
the scope of our reviewing powers on this appeal to
consider the validity of this December 15 interlocu-
tory injunction against the attachments, we decline to
do so for several reasons.5 First, the Banks, against

state court complainants had a right to appeal from the denial of the
December 15 preliminary injunction pursuant to 28 U.S.C.A.
§1292(a), they chose not to do so, and the time for appealing that
order has now lapsed. It is clear that the procedure for taking an
appeal from an interlocutory order is precisely the same as that for
taking an appeal from a final judgment, and that interlocutory
appeals taken pursuant to 28 U.S.C.A. §1292(a) must be timel

filed. See Dahlen v. Kramer Mach. & Engineering Prod. Co., Toth
Cir. 1961, 303 F.2d 293; Stiller v. Squeez-A-Purse Corp., 6th Cir.
1958, 251 F.2d 561. See also 9 Moore’s Federal Practice 4\110.21.

5 Two questions pertaining to the proper scope of our review on
this interlocutory appeal present themselves in connection with
the December 15, 1969 injunction. First, notwithstanding the fail-
ure of both the Banks and the state court complainants to file a
timely appeal from the December 15 order, see note 4 supra, would
we have the power to take the matter up in connection with the re-
view of some subsequent appealable order in the case? See 9
Moore’s Federal Practice 4|110.21, at 256 (suggesting an affirma-
tive answer); but cf. Stiller v. Squeez-A-Purse Corp., 6th Cir. 1958,
251 F.2d 561 (holding that a party may not circumvent the time re-
quirements for appealing from interlocutory orders by repeated-
ly moving in the district court to dissolve the interlocutory order,
and after repeated orders of denial, appeal from the last order of
denial entered in the court, although such an appeal would be un-
timely if considered as taken from the first order).

Secondly, if consideration of the first order is not foreclosed by
time requirements, would it be within the scope of our review of a
subsequent interlocutory order to consider a prior order on our
own motion? The general rule governing the scope of review on
interlocutory appeals is that “the appellate court will not go any
further * * * than is necessary to decide the matter upon appeal.” 9
Moore’s Federal Practice 91110.25 [1], at 269-70. This rule-of-
thumb, however, may be only a rule of orderly judicial adminis-
tration. Once a timely appeal is taken from an order made appeal-
able by statute, some courts have viewed their power to be plenary
to the extent they choose to exercise it. See, e.g., Hurwitz v. Direc-
tors Guild of America, Inc., 2d Cir., 364 F.2d 67, cert. denied, 385
U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966). There is some ques-

79a

whom a major command of the December 15 order
runs, are not parties to the present appeal and chose
not to appeal the December 15 order when they could
have done so.° Secondly, the state court complainants,
who are the only appellants here, have confined their
appeal to questioning the validity of a subsequent
interlocutory order of the court entered on June 9,
19707 (discussed at length hereinafter). Finally, we de-

tion, therefore, whether we have the power to consider the
December 15 order. Even if our review power on interlocutory
appeals is plenary, however, we have decided not to exercise that
power in this case for reasons discussed in the text infra.

6 See note 4 supra. Moreover, the state court complainants’ fail-
ure to appeal the December 15 order appears to have been delib-
erate, for at the time they had a right to appeal that order pur-
suant to 28 U.S.C.A. §1292(a), they did appeal a separate, certi-
fied order of the district court pursuant to 28 U.S.C.A. §1292(b).

7 In their notice of appeal the state court complainants appeal
only from
“the interlocutory order of the United States District
Court Judge for the Northern District of Mississippi,
dated June 9, 1970, preliminary restraining and enjoin-
ing, until further order of the district court, the defend-
ant and those persons in active concert and participation
with them from prosecuting or causing to be prosecuted
that certain action now pending in the Chancery Court of
the First Judicial District of Hinds County, State of Mis-
sissippi, styled Claiborne Hardware Co., et al v. National
Association for the Advancement of Colored People, No.
78,353 on the docket of said Court, entered in this action
on June 10, 1970.”
State Court Complainants’ Notice of Appeal, Vol. II, Appendix, at
258-259.

No mention is made of the December 15, 1969, order in
the Notice of Appeal, nor have the appellants — state
court complainants — briefed whatever questions may
be raised by the December 15 order See, e.g., text accom-
panying notes 19-20, infra.

80a
cline to examine the December 15, 1969 order because
we think that an examination of that order would be
completely unnecessary to a decision of the questions
raised by the June 9 order on which this interlocutory
appeal is based.* To the extent that we have discussed
the December 15 order, we have done so for only two
reasons: (1) To set the stage for our discussion of the
June 9, 1970 order, and (2) to notify the parties that the
December 15 interlocutory injunction against the
attachments remains standing,? pending a final deter-
mination by the district court of the many difficult
questions raised by the original plaintiffs’ procedural
due process claim that all their funds have been illegal-
ly attached without notice and hearing, pursuant toa
Mississippi non-resident attachment statute, when
these plaintiffs are in fact residents of the State of Mis-
sissippi and not even parties to the state civil suit, the
filing of which generated the attachments. Cf, e.g., Wis-
consin v. Constantineau, 400 U.S. 433,91 S.Ct. 507, 27

8 None of the parties have suggested that the December 15,
1969 order interferes in anyway with the pending state civil ac-
tion. Cf. Lynch v. Household Finance Co., D.Conn. 1970, 318
F.Supp. 1111, 1115. And, indeed, we have difficulty seeing how it
could interfere if the situation is as the original plaintiffs con-
tended — that is, if the organizations against whom the attach-
ments run are not even parties to the pending state suit. See also
text accompanying notes 19-20, infra.

9 Neither party to this appeal has suggested that the interlocu-
tory injunction of June 9, 1970 (discussed hereinafter) super-
seded in any way the interlocutory injunction of December 13,
1969, cf. Dahlen v. Kramer Mach. and Engineering Prod. Co., 10th
Cir. 1961, 303 F.2d 293, nor does our study of the Record indicate
that the December 15, 1969 order has been affected in any way by
the subsequent orders of the district court.

8la

L.Ed.2d 515 (1971). As we proceed to what really con-
cerns us on this appeal, therefore, we understand that
the Banks and the state court complainants are pres-
ently preliminarily enjoined from withholding or
causing to be withheld, pursuant to writs of attach-
ment issued in connection with Cause No. 78353 in
Chancery Court of the First Judicial District of Hinds
County, Mississippi, funds belonging to the original
plaintiffs deposited in the defendant Banks.

C. Proceedings Below: Stage II

Several days following the day on which the district
court announced its decision to issue a preliminary in-
junction restraining the withholding of the original
plaintiffs’ funds,!° the plaintiffs took steps which
greatly enlarged the scope of the issues in the case.
Specifically, the NAACP and MAP, both named
defendants in the state complainants’ pending anti-
trust suit, were added as parties to the instant suit, and
Aaron Henry, who appeared in the original complaint
in his official capacity as President of the State Confer-
ence and the Coahoma Branch, but not as an individ-
ual, appeared in the amended complaint as an individ-
ual representing the class consisting of all individuals

named in the State Chancery suit. At this time, the

plaintiffs also filed an amended complaint which re-

10 The district court actually announced its decision from the
bench at the conclusion of the hearing on December 1, 1969. The
order was not formally entered until December 15, 1969, the day
the original plaintiffs filed their motion to add the state court
defendants to the suit.

82a

quested substantially broader relief than originally re-
quested. Generally, the amended complaint sought
further relief in the form of (1) an injunction restrain-
ing the state court complainants from further prose-
cuting the pending State Chancery suit, and (2) a
declaratory judgment that the anti-trust statutes upon
which the state court complainants were relying in the
State Chancery suit were unconstitutional on their
faces or as applied to the state court defendants.1!

On December 31, 1969, the original plaintiffs, to-
gether with the newly added state court defendants,
filed a motion for a preliminary injunction restraining
the state court complainants from further prosecuting
or causing to be prosecuted the State Chancery action.
The state court complainants replied with numerous
motions of their own, and all outstanding motions
were heard by the district court on February 26, 1970.
On June 9, 1970, obviously after careful deliberation,
and accompanied by a lengthy and thoughtful memo-
randum opinion which has been very helpful to this
Court, the district court entered its order granting, inter
alia,12 the motion for a preliminary injunction re-
straining the state court complainants from further
prosecuting or causing to be prosecuted the State
Chancery suit. It is from this order enjoining their

11 See note 2 supra.

12 Numerous other motions were granted or denied in the dis-
trict court’s June 9 order. We consider none of them — only that
portion of the order granting the motion for a preliminary injunc-
tion.

83a

pending antitrust suit in State Chancery court that the
state court complainants now appeal. First, they chal-
lenge the jurisdiction of the district court. They con-
tend that the district court lacked jurisdiction because
(a) there is nosection 1343(3) question presented in the
complaint since the requisite “state action” to a civil
rights action cannot be found in the mere filing of a
private civil tort action instate court; and (b) thereis no
section 1331(a) federal question presented in the com-
plaint since the amended complaint contains no more
than what the state court defendants’ defense would be
to the State Chancery suit and the matter in contro-
versy does not exceed $10,000.13 Secondly, they urge
that 28 U.S.C.A. §2283, the anti-injunction statute, is
an absolute bar to enjoining their pending state civil
suit. Finally, they argue that “plaintiffs have no abso-
lute right to picket, march and demonstrate.” Because
we have decided that federal jurisdiction was lacking to
support the cause of action alleged in the amended
complaint, we donot reach the second and third issues.

II. Jurisdiction

Federal district courts have jurisdiction of actions to
redress the deprivation, under color of any state law,
statute, ordinance, regulation, custom or usage, of any
right, privilege or immunity secured by the federal con-
stitution or any Act of Congress providing for the
equal rights of citizens. 28 U.S.C.A. §1343(3) and 12

13 See note 15 infra.

84a

U.S.C.A. §1983.14 1 W. Barron & A. Holtzoff, Federal
Practice and Procedure 1:37 (Wright ed. 1960). It is, of
course, essential to this “civil rights” jurisdiction that
the deprivation of rights contested be “state action.”15
The difficult problem has always been to pinpoint the

14 28U.S.C.A. §1343(3) provides in pertinent part that
[t]he district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any
person: * * *

(3) to redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege, or immunity secured

by the Constitution of the United States or by any

Act of Congress providing for equal rights of citi-

zens ***.

42 U.S.C.A. §1983, which is the statute creating a civil rights
cause of action cognizable under 28 U.S.C.A. §1343(3), provides as
follows:

Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or
Territory, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress.

15 It is likewise essential to federal question jurisdiction under
28 U.S.C.A. §1331(a) that there be “state action” when the fed-
eral question alleged is one “arising under” the Bill of Rights and
the Fourteenth Amendment. See Swift v. Fourth Nat’l Bank,
M.D.Ga. 1962, 205 F.Supp. 563, at 565. See also Hampton v. City of
Jacksonville, 5th Cir. 1962, 304 F.2d 320, 322; Smith v. Holiday
Inns of America, Inc., 6th Cir. 1964, 336 F.2d 630. In the instant
case, the state court defendants predicated jurisdiction not only on
section 1983 and 28 U.S.C.A. §1343(3), but also on the Bill of
Rights as applied to the States by the Fourteenth Amendment.
Since “state action” is required for both, however, to decide the
jurisdictional issue under 28 U.S.C.A. §1343(3) is also to decide the
jurisdictional issue under 28 U.S.C.A. §1331(a). The two con-
cepts have long been considered identical. United States v. Price,
383 U.S. 787, 86 S.Ct. 1152, at note 7, 16 L.Ed.2d 267 (1966).

85a

boundary between state action and nonstate, or
private, action. In this case, we must decide on which
side of the boundary lies the mere commencement of a
private tort suit in state court.

Relying primarily on New York Times v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and
Shelley v. Kramer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.
1161 (1948),1¢ the district court held that “state ac-
tion” may be found in the filing of a suit between
private parties in state court. Both these decisions,
therefore, deserve our careful attention. New York Times
began as a civil suit between private parties in the state
courts of Alabama. It resulted in a judgment in the
Supreme Court of Alabama against the Times. In its
opinion on certiorari, the United States Supreme Court
devoted only a short paragraph to the problem of judi-
cial involvement in a private lawsuit. It said:

Although this is a civil lawsuit between
private parties, the Alabama courts have ap-

16 The district court also relied on Edwards v. Habib, 1968, 130
U.S.App.D.C. 126, 397 F.2d 687, cert. denied, 393 U.S. 1016, 89
S.Ct. 618, 21 L.Ed.2d 560 (1969). It is true that Edwards v. Habib
contains pages of discussion on the problem of “state action.” In
those pages, Judge Wright discussed many possible theories of re-
solving “state action” problems, but he rested his decision on none
of them. In fact, he concluded that it was not necessary to decide
whether there was “state action” in the case, because the case
could be decided merely by construing an Act of Congress. As the
only concurring judge pointed out, therefore, the dictum on “state
action” was nothing more than “constitutional speculation” and
for that reason the concurring judge declined to join in that part of
the opinion. See 397 F.2d at 703. (Concurring opinion of Mc-
Gowan, J.)

6a

plied a state ;rule of law which petitioners
claim to impose invalid restrictions on their
constitutional freedoms of speech and press. It
matters not that the law has been applied ina
civil action, and that it is common law only,
though supplemented by statute* * * The test
is not the form in which state power has been
applied but, whatever the form, whether such
power has in fact been exercised.

376 U.S. at 265, 84 S.Ct. at 718 (emphasis added).

Shelley v. Kramer also began as a private civil suit in
state court, where one party was seeking judicial en-
forcement of a racially restrictive covenant in a deed.
The courts of Missouri enforced the covenant, and the
United States Supreme Court on certiorari held that
state enforcement of a private discriminatory contract
violates the fourteenth amendment. The clear message
of Shelley v. Kramer is that it is judicial enforcement of a
private discriminatory contract that brings the other-
wise “private action” within the ambit of the four-
teenth amendment. What is common to both Shelley and
New York Times, therefore, that is not present in our
case, is that “state action” was found in those cases
only after a final judgment or otherwise dispositive
order!” on the merits had been rendered by the state
court. In contrast to these cases in which some disposi-
tive action has been taken by acourt, there is along line

17 See Machesky v. Bizzell, 5th Cir. 1969, 414 F.2d 283, 286,
where the Court suggests that an injunction granted by a state
court may constitute “state action.”

87a

of cases which conclude that a state, by merely holding
its courts open to litigation of complaints, does not
clothe the persons who use its judicial processes with
the authority of the state. See Skolnick v. Martin, 7th
Cir., 317 F.2d 855, cert. denied, 375 U.S. 908, 84 S.Ct.
199, 11 L.Ed.2d 146 (1963); Skolnick v. Spolar, 7th Cir.,
317 F.2d 857, cert. denied, 375 U.S. 904, 84 S.Ct. 195,
11 L.Ed.2d 145 (1963); Moffett v. Commerce Trust Co.,
8th Cir., 187 F.2d 242, cert. denied, 342 U.S. 818, 72
S.Ct. 32, 96 L.Ed. 618 (1951); Campo v. Niemeyer, 7th
Cir. 1950, 182 F.2d 115; Swift v. Fourth Nat'l Bank,
M.D.Ga. 1962, 205 F.Supp. 563; Bottone v. Lindsley,
10th Cir. 1948, 170 F.2d 705, cert. denied, 336 U.S. 944,
69 S.Ct. 810, 93 L.Ed. 1101 (1949). See also Jones v. Jones,
7th Cir. 1969, 410 F.2d 365, cert. denied, 396 U.S. 1013,
90 S.Ct. 547, 24 L.Ed.2d 505 (1970); Rhodes v. Meyer,
8th Cir., 334 F.2d 709, cert. denied, 379 U.S. 915, 85
S.Ct. 263, 13 L.Ed.2d 186 (1964); Sarelas v. Porikos, 7th
Cir. 1963, 320 F.2d 827; Wardrop v. Ross, W.D.Pa.
1970, 319 F.Supp. 1299; Drexler v. Walters, D.Minn.
1968, 290 F.Supp. 150, and Pritt v. Johnson, M.D.Pa.
1967, 264 F.Supp. 167 (holding that attorneys who par-
ticipate in litigation are not acting under color of state
law within the civil rights statute). The leading case on
this question, which presents a fact pattern very simi-
lar to the case at hand, seems to be Stevens v. Frick, 2d
Cir., 372 F.2d 378, cert. denied, 387 U.S. 920, 87 S.Ct.
2034, 18 L.Ed.2d 973 (1967). Stevens was an action to en-
join the defendant from further prosecuting a pending
civil suit for libel in the Pennsylvania courts on grounds
that the mere filing and pendency of the suit “chilled”
the plaintiffs’ first amendment rights. Like the plain-

88a

tiffs herein, the plaintiffs in Stevens relied on Shelley v.
Kramer to support civil rights jurisdiction in the case.
The Second Circuit rejected this argument and, dis-
tinguishing Shelley, stated the following:

By contrast (with Shelley v. Kramer), in this
case no order or judgment has been entered
under which the power of the state is invoked
to suppress the Stevens book, nor is there any
Pennsylvania statute or case which author-
izes the imposition of unconstitutional re-
straints on freedom of the press. * * * Thus far
Pennsylvania has merely provided a forum to
determine the rights of the parties. Both logic
and precedent suggest that merely by holding its
courts open to litigation of complaints, regardless of how
baseless they eventually prove to be, Pennsylvania does
not clothe persons who use its judicial processes with the
authority of the state. * * *

372 F.2d at 381 (emphasis added). The court concluded
therefore that Stevens did not have a claim cognizable
under the Civil Rights Act.

The reason for the principles enunciated in the
above-cited cases is manifest: Judicial bodies are sup-
posed to be neutral; perhaps their most magnificent
feature is their accessibility to all claimants, no matter
how unfounded those claimants’ contentions may turn
out to be. To say that an open courthouse door consti-
tutes “state action” is to assume that the party whose
private suit is challenged as “state action” already has

89a

the court on his side before the adjudicatory process
even commences. The essence of “state action,” as de-
fined in Burton v. Wilmington Parking Authority, 365
U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), is action in
which the “[s]tate has so far insinuated itself into a
position of interdependence [with the otherwise
‘private’ person whose conduct is said to violate the
fourteenth amendment] * * * that it must be recog-
nized as a joint participant in the challenged activity,
which, on that account, cannot be considered to have
been so ‘purely private’ as to fall without the scope of
the Fourteenth Amendment.” 365 U.S. at 725, 815.Ct.
at 862. To apply this test to the mere filing of a private
civil complaint in a state court and conclude that “state
action” results would be to demean the judicial process.
It would be to forget that a court is an open forum
before which each party is to have a full and fair oppor-
tunity to make his case. Only after both parties to a
private civil action here had their day in court and the
court has reached its decision and rendered its judg-
ment does the full power of the state come into play in
enforcing the judgment. We need only look at the stat-
us of the pending civil suit in the instant case to dem-
onstrate this principle. As things stood at the time the
court below issued its preliminary injunction, there
were no indications what, if any, evidence the state
court complainants would be able to produce to sup-
port their various allegations of violent and abusive
conduct, nor were there any indications whether the
state court complainants would be able to substantiate
their claimed loss of 3.5 million dollars. Thus, from a

90a

factual standpoint, it was entirely uncertain whether
the state court complainants would even be able to
carry their burden of proof inthe case. From the stand-
point of the legal questions presented, the state court
complainants were proceeding to court armed with
state antitrust statutes which, from all apppearances,
no Mississippi court has ever applied in a noncommer-
cial situation. The state court defendants, on the other
hand, no doubt would have armed themselves with the
First Amendment to the United States Constitution
and numerous Supreme Court opinions holding that
their right to picket peacefully is constitutionally pro-
tected. At the time the court below issued its injunc-
tion, the Mississippi Chancery Court had made no dis-
positive determinations, factual or legal, on any of
these difficult issues. In other words, the State,
through its courts, had taken a stand on neither side of
this very difficult controversy.

The effect of the relief the state court defendants
seek in this Court, through their argument that the
state court complainants’ use of the Mississippi courts
constitutes “state action,” would be to shut the doors of
the Mississippi courts to its citizens before those citi-
zens have an opportunity to present their case. For us
to take such a step, the situation must be drastic in-
deed. We are asked to take the step, however, on
grounds that the state complainants’ suit is unfounded
and that its mere pendency chills the state court
defendants’ first anendment freedoms. But see Young-
er v. Harris, 401 U.S. 37, at 50, 91 S.Ct. 746, at 754, 27
L.Ed.2d 669 (1971). Remedies exist in our system of
justice for unfounded suits in the common law actions

9la

for malicious prosecution and abuse of process.18 And it
is through the faithful enforcement of these remedies,
rather than through denying access to the courts in the
first instance, that, for the most part, the menace of bad
faith private litigation should be controlled. The state
defendants argue, however, that the “state action”
needed to support their amended complaint attacking
the state court complainants’ antitrust suit can be
found in the aforementioned prejudgment attach-
ments of funds belonging to the various original plain-
tiffs. They rely heavily on the recent Supreme Court
decision in Sniadach v. Family Finance Corp., 395 U.S.
337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1971). Sniadach in-
volved the constitutionality of a Wisconsin prejudg-
ment garnishment procedure. The debtor’s wages in
that case were garnished. She moved instate court that
the garnishment proceedings be dismissed for failure
to satisfy the due process requirements of the Four-
teenth Amendment, and the Supreme Court of Wis-
consin sustained the lower court in approving the pro-
cedure. The United States Supreme Court reversed,
holding that the procedure violated the due process re-
quirements of the Fourteenth Amendment. Although
the Court did not address itself to the question
whether “state action” was present in the garnish-
ment procedure, implicit in its holding that the pro-
cedure violated the Fourteenth Amendment is the con-
clusion that “state action” was present, since “state ac-

18 Mississippi jurisprudence recognizes a cause of action for
abuse of process or malicious prosecution. Allen v. Ritter, 235
So.2d 253 (1970); Wutzke v. Wayne Lee’s Grocery and Market,
Inc., 199 So.2d 438 (1967); Kitchens v. Barlow, 250 Miss. 121, 164
So.2d 745 (1964).

92a

tion” is required to invoke the protection of the Four-
teenth Amendment. See Hall v. Garson, 5th Cir. 1970,
430 F.2d 430, 439-440. Of course, as we have made
clear at the outset of this opinion, neither the validity of
the attachments below nor the validity of the Decem-
ber 15 preliminary injunction against them is present-
ed to us on this appeal. It is not necessary, therefore, for
us to say whether, taken alone, involved “state action” for
federal jurisdictional purposes. But even assuming for
the moment that “state action” was involved in the
attachments, we do not think it can be fairly said that
such “state action” extends to the entire underlying
private antitrust suit.

The very nature of the garnishments attacked in
Sniadach, and of the attachments attacked below, makes
it clear that these ministerial acts should be treated as
separate matters from the suits underlying them. This
much is indicated in the following language from
Sniadach, describing the procedure under attack in that
case:

What happens in Wisconsin is that the clerk
of the court issues the summons at the re-
quest of the creditor’s lawyer; and it is the
latter who by serving the garnishee sets in
motion the machinery whereby wages are
frozen. They may, it is true, be unfrozen if the trial of
the main suit is ever had and the wage earner wins on the
merits. But in the interim the wage earner is deprived of
his enjoyment of earned wages without any opportunity

93a

to be heard and to tender any defense he may
have, whether it be fraud or ‘otherwise.

395 U.S. at 338-339, 89 S.Ct. at 1821 (emphasis add-
ed). The administrative acts complained of in Sniadach,
and, it may be argued, in the attachments below, had an
indisputable aspect of finality wherein the full author-
ity of the State was brought to bear on the complain-
ing party.19 But obviously this does not mean that there
was any finality or any “state action” about the still
pending “main suit” (as it was referred to in Sniadach), or
“underlying suit” (as we shall call the state court com-
plainants’ antitrust suit here). Thus, to say that the
“state action” contained in a summary garnishment,
such as that in Sniadach, or that may be contained in a
prejudgment attachment, such as that below, clothes
the entire underlying suit in the garb of “state action”
when no evidence has been presented in the underly-
ing suit and no decision on the merits reached, is to
sweep too broadly. Most of the time, the prejudgment
procedure bears no meaningful relation to the under-
lying suit; it is true that the institution of the underly-
ing suit triggers the prejudgment procedure, but that is

19 Asa general rule, of course, the ministerial acts of a court’s
officers, who in the performance of their official responsibilities
issue process and levy execution, are not considered to be an action
under color of state law. Dinwiddie v. Brown, Sth Cir., 230 F.2d
465, cert. denied, 351 U.S. 971, 76 S.Ct. 1041, 100 L.Ed. 1490
(1956); Schatte v. International Alliance, 9th Cir., 182 F.2d 158,
cert. denied, 310 U.S. 827, 71 S.Ct. 64, 95 L.Ed. 608 (1950). See also
Hanna v. Home Insurance Co., 5th Cir. 1960, 281 F.2d 298, cert.
denied, 365 U.S. 838, 81 S.Ct. 751, 5 L.Ed.2d 747 (1961). The dis-
tinction between these cases and the Sniadach-type case can be
found, we think, in the effect of the particular administrative act in
question.

94a

as far as the relationship goes. Thereafter, the pre-
judgment procedure takes place regardless of the
merits or substantive cont

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1289%3A1. Public record. Not legal advice.