Appendix — Cameron v. Johnson

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SUPREME COURT «:

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APPENDIX: > 7) NOV 16 1967

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SUPREME COURT OF THE UNITED STATES*

~ OcroRER TreRM, 1967

No. 699

JOHN EARL CAMERON, ET AL., APPELLANTS,

Vs.

PAUL JOHNSON, ETC., ET AL.

APPEAL \FROM THE UN ITED STATES: DISTRICT ‘COURT FOR THE

” SOUTHERN DISTRICT: OF MISSISSIPPI

FILED MAY 15, 1967

oe RECON NOTED OCTOBER 9, ed

tc A RN REE ERE ROE IEEE © MRR RIGS FEM REI IGM IIE BOSE FAP ETL LF NS Se BE Te Be

INDEX ieee

Relevant Docket Entries........ ined be Perr rrr te ene

Amended Complaint............. ‘caekéushederténeearcues

Supplemental Complaint.......:........:. tiara ecancaeis :

‘Answer of Defendants........... Rear ee ‘Mhaaakaees al

Separate Answer of Paul B. Johnson, Jr...........:......

Separate Answer of James Finch..........0.....0eeceee0:

Opinion of United States District Court 7/14/64. PT Ee

Dissenting Opinion of Judge Rives 7/14/64............. ae

‘Finding of Facts and Conclusions of:Law 7/14/64.........

Notice of Appeal to the Supreme Court of the United States '

Judge Cox, Specially Concurring 12/24/66...............

Finding of Facts and Conclysions of Law 12/24/66....:...

Dissenting Opinion of Judge Rives 12/24/66............5.

Order of the United States District Court 12/24/66........

Notice of Appeal to the Supreme Court of the ae States .

Hearing of October MB, WWGB 000-0 cvcwesecocccccccccsecs

(1)

i ae RELEVANT Dooxet Entas

Date | _Filitigs—Proceedings |

4-13-64 Complaint in action for injunction, with seven’

| ~ copies, filed. Page 1. : as

4-13-64 - Motion for convening of three-judge District

. Court with seven copies, filed. Page 10,

. e*-, @ * im * «

4-22-64 Supplemental Complaint: that James K. Dukes

be substituted for Joe R. King as County Attor-

. ney, Forrest County, Miss., filed. Page 11

4-23-64 “Designation of .a three-judge court Naming: °

Judge Richard T. Rives, Montgomery, Alabama;

Judge W. Harold Cox, Jackson, Mississippi;

Judge 8. C, Mize, Gulfport, Mississippi, filed.

_ M.B. 1964, Page 13

oe * * * a ’ . 7

4-23-64 Order’ signed by Judge Mize for Interlocutory

ee * Injunction hearing at Meridian, Miss. on 4-29-64,

‘filed. O.B. 1964, Page 72 | Dia

[2] oer | a

S- 7-64 Motion for leave to amend complaint pursuant ©

to Rule 15, Federal Rules of Civil ‘Procedure,

: filed, original only Rie as

S- 7-64—Amended Complaint: amended to read Bup Gray,

_ individually and as Sheriff of Forrest County,

Miss., filed, original only. Page 20

. _* 7 “he e es! Rhee

5-13-64 Separate answer of-Paul B. Jolinson, J r., indi-

vidually and as Governor of the State of Missis- _

'. sippi with copy of motion to quash filedin County .

‘ _ Court, Forrest:County, Miss., with certificate of.

mailing; filed. Page 28

2 60

Date

5-13-64

6— 1-64.

Ptinie~Permaiinns

Separate answer of James Finch, individually

and. as District -Attorney of Forrest County,

- Miss., with certificate of mailing, filed. Page 35

: x

* .* - * * *

‘a e a

Secortd Supplemental Petition and. Petition for; |

’

Stay of State Court Proceedings with copies of

charges, copy of Motion to Quash, copy of aff-

dayit' of Bruce C. Waltzer from County Court,

Forrest County, Miss., together with certificate

stating that Second Supplerhental Petition had

been mailed to James K. Dukes, Will Wells;

James Finch, W: G. ‘‘Bud’’ Gray with ap

Order to the Court for an injunction, filed.

*- dat Reais * . * i *

Order that Plaintiffs are granted leave to file -

the amended Complaint proffered to the Court;

* that the Defendants are granted 10 days from

the date hereof to plead to’ said amended Com-

plaint, filed, O.B. 1964, Page 95

. ~ F ~~

P ‘ °

* * *. te oF *

6 :

Amended coniicilaiit with three copies together

with certificate of mailing and Exhibit a ef

filed. v—— 62

Answor of Defendants: Paul B. Johnson, James

K. Dukes, James Finch, Bud Gray, with three

copies, filed. Page 71 :

ies tes opinion in: 12 pages. dated 7-11-64 by

' Judge S. C. Mize, Judge Harold Cox concurring,

-- . Judge Richard T. Rives dissenting : ‘*A finding

-of facts and conclusions of law-is prepared sepa-

——— sermperseaeeel : myer

AGED Ns I OBO RD SEP SOS RAPT IN NEI

-“<s

' Date

| (5)

7-14-64

\ Filings—Proceedings

rately and filed along with this opinion and made

a part of it as if copied herein. We are of the

opinion that under the law and the facts of this

case it is the duty of the Federal Court to abstain

. and permit the plaintiffs to pursue their State.

- remedies, as they have already commenced to do.

_ The complaint and the amended complaint, there- ~

_ + fore, will be dismissed and the relief sought will .

_ be denied, and the plaintiffs will be assessed with

all costs, filed. Page 78

Finding of facts and conclusions of law in 6

pages dated 7-10-64, by. Judge S. C. Mize, Judge

- Harold Cox coneurring, Judge Richard T: Rives

dissenting: *.* * ‘‘Under the facts and under |

the rules of applicable law in this case, the plain-

_, tiffs are mot entitled to any injunctive relief

7-14-64

herein. **% *” , filed. Page 90

Dissenting opinion in 5 pages, by Judge Richard

T: Rives: * * * ‘‘In'my opinion, the statute

under attack is clearly unconstitutional, and the

plaintiffs are just as clearly entitled: to ‘have en-

forcement enjoined. I therefore respectfully |

dissent * * *’’, filed. Page 96

Judgment in one page dated 7-11-64, by J udge

‘Sidney C. Mize, Judge Harold Cox: concurring,

Judge Richard T. Rives dissenting: * * * ‘‘It

is, therefore, so ordered and .adjudged by the

Court that the amended complaint of John Earl

‘ Cameron and Victoria Gray, et al, is without |

7-20-64

merit and -is dismissed on the grounds and for

the reasons stated in said opinion, finding of

faets arid conclusions of law; and the plaintiffs -

(named and unnamed) are assessed with all costs.

of this suit to be taxed according to the rules of. .

this Court. * * *’’, filed. C.0.B. 1964, Page 121

Notice of Appeal: that appellants appeal to the

United States-Court of Appeals for the Fifth

Circuit from. the judgment of this Court ren-

dered on or about July 11, 1964.‘and filed on

Filings—Proceedings

or ‘about July 14, 1964, with five copies, filed.

~aee 101

Notice’ of Appeal to ‘the elie Court of the

a United States with Cortifionte of Service, filed.

Certified ‘copy of Judgment from U. S. Supreme

- Court, No. 587 Mise. October Term, 1964: ‘‘It

is ordered and adjudged by. this Court that the

judgment of the said United States District

Court in this cause be, and the same is hereby, :

vacated with costs; and that this cause be, and

the same is hereby, remanded to the United

States District Court for the Southern District

of Mississippi for reconsideration . in light. of

Dombrowski v. Pfister, 380 US 479. June 7,

1965 ;’? Clerk’s costs $100.00, The above amount

to be paid directly. to the Clerk of the Supreme

Court of the United States, filed. M.B. 1965, ©

Page 137—O.B. 1965, Page 175. Page 104

Certified copy of motion‘for leave to proceed ‘in

forma pauperis, order that motion be and the

same is hereby, granted, filed. M. B. 1965, sati |

138—O.B. 1965, Pees 176

Ordered that ti the said three-judge District Court

be reconstituted to consist of Honorable Richard

. Rives, United States Circuit JIndge, Honor-

able J. P. Coleman, United States Circuit Judge

>and Honorable William Harold Cox, United .

States District Judge, filed. O.B. 1965, Page 212

—M. B. 1966, Page 145 a

Filings—Proceedings a ‘

Plaintiffs moves the Court pursuant to the judg-

ment of the Supreme Court of the United States

entered 6-7-65, for a hearing in accordance with

_ said judgment; for permanent relief prayed for

9-23-66 |

‘in complaint and amended complaint, filed |

Court Reporter’s transcript of proceedings taken -

at Biloxi, Miss., on 10-15-65, filed. See separate

volume . ; a os

Stipulation that a drawing of certain areas ad-

jacent to county courthouse may be considered

as introduced in evidence, filed

- Stipulation that a drawing of certain. areas ad-

jacent to county courthouse does not show an

entrance to the county court room, with copy of

drawing attached, filed

* e 7 eo ~ 7.

Restraining Order: Order that District Attorney

and County Attorney be ordered and directed to

desist from prosecution of approximately 40

criminal cases in state court and to further pass

disposition of cases until further orders of this

_ Court; the U. S. Marshal shall serve an attested |

copy on-each attorney, filed. O.B. 1966, Pages

267-268 3

Motion for :a preliminary injunction or order

staying state proceedings in County Court, For-

rest County, Mississippi, filed

* * * * * .

Opinion of Circuit Judge Rives, filed. Page 107

Opinion of Cireuit J udge Coleman, filed. Page

138 ‘ !

~ SRO St cee ro rgoee SOREN PETS ie tit

1-26-67

Filings—Proceedings

Opinion of Chief Judge Cox, filed. Page 152

Findings of Fact and Conclusions of Law; order

to enter, filed. Page 156 |

Judgment: complaint dismissed with projudice,

plaintiffs assessed with costs, extant restraining

- orders are abated and dissolved within 30 days

after 12-23-66 to enable such parties to apply

for further relief, filed. O.B. 1966, Pages: 363-

364. - oo 161

+ * | . * *

Notice of Appeal to the Supreme Court of the —

United States: Plaintiffs appeal from the judg-

ment of this Court rendered December 23, 1966,

entered December 24, 1966, with five copies, filed.

Page 163

Motion for Continued Stay. * plaintiffs. with

Order that the extant restraining orders of this

court, which have ‘operated as a stay of criminal

proceedings now: pending in the State Courts of

Miss., against plaintiffs in this case, be and the

same are hereby extended and kept in effect

until final disposition of this cause by the U. S.

1-27-67

Supreme Court, signed by Circuit Judge Jas. P.

Coleman, with cértificate of ‘service, filed. .0.B.

1967, Page 22-23. Page 166

Copies of Notice of Appeal and above Motion —

for continued stay mailed three judges. -

. A True Copy, I Hereby Certify.

Robert C. Thomas, Clerk: By: 8. Carter, sated Clerk.

Dated: 1-30-67.

— = ™ - necee Nene

ae ae Seka atl ON Ra

ithe ee ini ias nt tina Date : a .

[9] | Ancunpep Compares

To the. Siistadiin, the Judges of the United States. District

Court, for the Southern District of Mississippi, Hatties- |

burg Division:

Parties

% Siniebed Joun Eart, Cameron and Mrs. Vicrorta.

Jackson Gray are residents of the-State of Mississippi

and citizens of the United States. They are members of

the Negro race and bring this action for themselves and.

as representatives of all other Negro citizens of the City

_ of Hattiesburg, Mississippi, and the State of Mississippi

‘similarly situated, pursuant’ to Rule 23 of the Federal

Rules of: Civil Procedure. They bring this action also as

representatives of those citizens of the United States,

Negro and white, similarly situated who are attempting by

constitutional means to-enforce the constitutional right of

Negro citizens of the State of ae to eer and

vote in that state.

[10] 2..Defendant Pav. Jonnson is val individually and

as the Governor of the State of Mississippi. He is a

resident of the’ state of Mississippi. s 8 : |

3. Defendant. James K. Duxss is sued individually and

as County Attorney of Forrest County, Mississippi. He is

a resident of the State of Mississippi.

4. Defendant James Fincu is sued individually and as

District Attorney of Forrest County, Mississippi. He is

a resident of the State of Mississippi.

5. Defendant Bup Gray is. sued individually ‘and as

Sheriff of Forrest County, Mississippi. He is a resident

of the State of commis o es ie }

J urisdiction

6. The . jurisdiction of the Court over the complaint

arises under Title 28 USCA 1331 (a), 1334 3, 4, 2201, 2202,

2281: Title 42 USCA, 1971, 1981, 1983, 1985, ‘and under. the

Constitution of the United States and particularly the

First, Fifth, Thirteenth, Fourteenth and Fifteenth amend-— .

ments thereto.

- 9%, The amount in eontroverey, exclusive of interest and

costs — the sum of sates 000.00. —

SQ NTT Cw Te OE ORE) & ST = ¢

Cause of. Action

8. The plaintiffs and the classes of dition, Haire and

white : they represent are attempting through peaceful,

non-violent and constitutional means to achieve the elimi-

nation of all forms of racial segregation in: the State of

Mississippi. This is an objective guaranteed by the —

Thirteenth and Fourteenth Amendments to the ane ‘

of. the United States.

The plaintiffs and the classes of citizens they saniaak

are attempting to assist and encourage Negro citizens of

the State of Mississippi to exercise their right to register

and vote in,State and Federal elections in that State.

This is an objective [11] guaranteed by the Fifteenth

‘Amendment to the Constitution of the United States.

9. The defendants under color of the laws of the State

of Mississippi and in particular under ‘the color of a law ©

: ‘of the State of Mississippi entitled House Bill 546, 1964 —

Session Mississippi. Legislature, have entered into a plan

or conspiracy with other persons to the plaintiffs presently .

unknown to. subject or cause them and the classes _they

_ represent to be subjected to the deprivation of rights,

privileges ‘and immunities secured to them by the Con-

_ stitution and laws of the United States as citizens of

the United States, |

10. Honse Bill 546, 1964 Session Misslesippi Legislature

was designed and enacted: for the:sole purpose of deterring,

impeding and intimidating Negro citizens of the State

of Mississippi and their white supporters from exercisirig

their federal constitutional rights of freedom of speech,

assembly, and the Tight to petition for redress of briev-

ances all protected by the Constitution and Laws of the

United States, in their efforts to obtain the equality

guaranteéd by the Fourteenth Amendment and the right

_ to vote guaranteed by the Fifteenth Amendment.

- - 11. House Bill 546, 1964 Session Mississippi Legislature

is void and illegal on its face and as applied to the plaintiffs .

herein and the classes they represent, in that the stetute

violates the Constitution of the United Staes and in par-

icular the ist, 5th, 13th, 14th and 15th Amendments

thereto. This statute violates on its face and as here

applied the fundamental guarantees of free speech, press,

assembly and the right to petition’ the Government for a

redress of grievances. It violates on its face and as here

applied the guarantee of due process of law in that it is

vague and indefinite and fails to meet the requirements of

certainty in criminal statutes. It violates:the prohibition

[12] against discrimination in the right to vote by

reason of race and color in that it is designed and so

‘operates as to impede and deter the Negro citizens of

Mississippi from attempting to exercise their right to :

affixed hereto as Exhibit ‘‘A’’ and made a part hereof.

12. Pursuant to the aforesaid conspiracy and plan the

defendants and others acting in concert with them have —

threatened and continue to threaten to enforce this uncon-

stitutional, void‘and illegal state statute against the plain-

tiffs and the classes they represent for the avowed purpose

of intimidating them from exercising rights guaranteed

- to them under the Laws of the United States in particular

Title 42 USC 1971, 1983, 1985 as well as. the Constitution

of the United States. Sie ~~

13. In further } pursuance of thie conspiracy and plan ~

the defendants and others acting in, concert .with them

have attempted and continue to attempt to prosecute the’

' plaintiffs and the classes they represent under this void

and illegal-state law for engaging ‘in the peaceful consti-

tutional exercise of the rights of free speech, assembly

and the petition for redress of grievances as part of their

efforts in the current Voter’ Registration ‘Campaign in

Forrest County, Mississippi.

14, Furthermore, on April 9, 1964, while cllwigea 1 in the

peaceful exercise of constitutional protected rights of

free speech, assembly and the right to petition, plaintiff

Cameron and other members of the class he represents.

_Wwere threatened with arrest for violation of said void and

C illegal State Statute, and on April 10, 1964, were arrested

* by agents of the. defendants for alleged violation of the

~ statute.

15. Since April 10, 1964, up to ‘and inohiding the present,

at least 48 persons including the plaintiff Cameron, all

members [13] of the classes here represented have been

arrested by the defendants and their agents under the

provisions: of this illegal and void statute.

10.

16. Since April 10, 1964, there. are now ‘pending ‘i in the

‘County Court for Forrest County, Mississippi, at least 48 — —

prosecutions for alleged violations of this illegal and void

statute. The prosecutions, all against members of. the.

classes here represented,.are based solely upon the peace-

ful exercise of -rights guaranteed under the First and .

Fourtenth Amendments of the Constitution of the United

States. ‘ts

17. Plaintiff Gray and any other members of ‘the

classés here represented have been and continue: to be. . :

§. threatened with arrest under the provisions of this void

and illegal statute by the defendants and their agents.

These threatened arrests are solely for the purppse of

intimidating and deterring the plaintiffs and the classes

_ they represent from exercising rights guaranteed to them

under Title 42 USC 1971 and the Fifteenth Amendment as

well as rights guaranteed under the First and Fourteenth

Amendments.

18. Unless this Court. restrains: the operation and. en-

forcement of this void, illegal and unconstitutional state

statute, the plaintiffs and the classes they represent will

suffer and continue to suffer immediate and irreparable

injury.

The dein purpose, intention and effect of enforcing and

threatening to enforce this state statute is to deter, intimi-

date, hinder and prevent the plaintiffs and the: class of

Negro ciizens of the City of Hattiesburg and the State

of Mississippi, together with their white supporters, from | :

exercising their fundamental constitutional rights guar-

anteed under the First and: Fourteenth Amendments in

_ their efforts to enforce the freedom and equality for the

- Negro guaranteed by the Thirteenth and Fourteenth

Amendments and the right to vote guaranteed by the

[14] Fifteenth. Amendment.

Accordingly unless this Court forthwith restrains the |

operation and enforcement of this void, illegal and uncon-

stitutional state statute, the plaintiffs and the classes

‘ they represent will continue to suffer the most serious,

immediate and irreparable injury in that they will con-

tinue to be deterred, intimidated, hindered and prevented

from exercising elementary and fundamental Federal con-

stitutional rights.

* 19. Plaintiffs have no ical remedy at law.

SAFE TN Ge OP RAPT GL AE SIRE CUM EERSTE ST

ed eS

made.

ne Plaintiffs pr pray for the following relief:

1. That ‘pursuant to Title 28 USC 2281 and 2284 a

20. ae previous 5 applicatign for this relief has been

three-judge Federal District Court’ be immediately con-

—

vened to hear and determine this matter ; saith

2.:That a permanent injunction issue

| (a) restraining the \ defendants, their agents, attorneys

. and alf others acting in concert with them from the enforce-

ment, operation or execution of House Bill 546, 1964 Session. —

Mississippi Legislature in any manner whatsoever

and (bh) restraining the defendants, their agents, attor-

' neys and all others acting in concert with them front

impeding, intimidating, hindering ‘and preventing the

plaintiffs or members of the classes they represent from

exercising rights, privileges and immunities guaranteed -_

to them by the Constitution and Laws of the United States.

' 3. That a Declaratory Judgment issue declaring that

' House Bill 546, 1964 Session. Mississippi Legislature is

null and void and of no effect as violative of the Constitu-

tion of the United States.

4, That pending the hearing and determination of these

[15] prayers for permanent relief an interlocutory i injunc-

tion issue restraining the defendants, their agents, attor-

neys and all others acting in concert. with them from :(a)

enforcing in any manner the provisions of House Bill 546,

1964 Session, Mississippi Legislature. (b) from arresting

the plaintiffs or members-of the classes they represent for

alleged Violations of said statute, (c) from instituting,

undertaking, or contipuing any criminal proceedings what-

_. goever pursuant to said statute against the plaintiffs and

the members of the classes they represent, either in the

County Court for Forrest County, Mississippi or in any

State Court in Mississippi.

5. That’ pending the. determination of the ‘motions for

interlocutory relief a temporary restraining order issue,

restraining. the’ defendants, their agents, attorneys, and

all others acting in concert with them in the manner as

prayed for in paragraph 4 of this prayer for relief.

Plaintiffs respectfully pray that - above relief be

granted.

[16] te ~. Exuzerr “A”? , i

House Bill 546, 1964 Session Mississippi Legislature

“Be it enacted ‘by the Legislature of the State of Miss-°

issippi: :

Section I: It shall be unlawful for any person, ‘singly

or in concert with others to engage in picketing or dem-

onstrations in such’a manner as to obstruct or interfere

with free ingress or egress to and: from any public prem-

-ises, State property, County or municipal court houses,

city halls, office ‘buildings, jails or other public: buildings

_or property,qwned by the State of Mississippi or any

county or ‘munisipal government located thérein or with

‘the use of public property or administration of justice

therein or thereon conducted or so as to obstruct or inter-

fere with free use of public streets, side- walks or other

: piblic ways adjacent or contigvous thereto. :

Section II: Any. person. guilty of violating this act

shall be deemed guilty of a misdemeanor and upon convic- ©

tion thereof shall be fined no more than Five Hundred and

No/100 ($500.00) Dollars or imprisoned in jail not more

than six (6) months or both such fine- and imprisonment.

Section III: This act shall take effect and be in force

from and after its | eaeene- re

™ *

4 e ® .

EP TILT. ELIE SELLE ROLE NOTE: LIT ENTE LE TE PR AE IE gt

“ower - rT

[17] | Suprrementan (Compiaint

plaint in the following respects: -

Not only -is House Bill 546 now signed into law in

Mississippi unconstitutional, but it is unconstitutionally

applied and used in that since its enactment at least 48

persons have been arrested under its provisions and

charged in the County Court of Forrest County Mississippi

- Plaintiffs supplement and amend their original com- —

with having violated it; all of those being friends and

“supporters of the plaintiffs herein,

That pending the issuance of any order from any court

convening under this complaint, there should be issued a

temporary restraining order prohibiting the enforcement

of said statute-inasmuch as its enforcement has caused

the plaintiffs particularly and the Negro race and their .

supporters generally in Mississippi irreparable injuries

in their efforts to register and vote, and will continue to -

do so'in the future, since the State authorities of Mississippi

have avowed the strict enforcement of the statute.

‘That James ‘K. Dukes, who should be substituted as a

party defendant for Joe R. King erroneously cited County

Attorney for Forrest County, has vowed: strict enforce-

ment of this statute. |

That there are now pending in the County Court. for

Forrest County of Mississippi 48 ‘prosecutions for alleged

[18] violations of this statute, all based on the defendants’

‘and others’ exercise of First and Fourteenth Amendment

rights in the current Voter Registration Campaign in.

Forrest County: -

Wuenrzror:, plaintiffs pray that a temporary restraining

rder issue herein forbidding the enforcement of House Bill

346 as enacted into law pending the ruling of the Three-

Judge Court herein requested. Age Wes

. *. ae ° * *

so L)

’

Aig ces 13

14g

1) ones ANSWERS OF DEFENDANTS

Come Paul B: J ohnson, individually and as Governot of

the State of Mississippi, James K. Dukes, individually and

_ as County Attorney of Forrest County, Mississippi, James

Finch, individually and as District Attorney of Forrest —

‘County, Mississippi and Bud Gray, individually and as

Sheriff of Forrest County, Mississippi, Defendants, and file .

herewith their answer to the Amended Complaint filed in

this action: ‘°—

1. Defendants admit the allegations of Paragraphs 2, 3;

| 4 and 5 of the Amended Complaint...

2. Defendants are without information s: afficient to:-form —

a belief as to the allegations of Paragraph 8 of the Amended

Complaint and, therefore, deny the same. ,

3. Defendants deny the allegations of Paragraph 9 of the

_ Amended Complaint.

- 4, Defendants deny the- allegations. of Paragraph 10 of

the Amended Complaint.

[20] 5. Defendants deny the allegations of Paragraph 11

of the Amended Complaint.

6. Defendants deny the allegations of Paragraph 12 of

the Amended Congplaint.

‘ . 7. Defendants deny the allegations of Paragraph 18 of

the Amended Complaint.

- 8. Defendants deny the allegations of Paragraph 14 of

the Amended Complaint. .

9. Defendants admit that since April 10, 1964, numerous

persons, including Plaintiff Cameron, have been arrested

and charged with the violation of House Bill 546 of the .

1964 Session of the Mississippi Fegislature, but deny that

they were arrested by the Defendant Johnson, the Defen-

dant Dukes or the Defendant Finch or any of their agents.

They are without information sufficient to form a belief as’

to whether or not the persons arrested are members of.any

class purportedly represented by Plaintiffs, and therefore,

deny the same. They deny that the said statute is illegal or

void all as charged in Paragraph 15 of the Amended:

Com-

plaint.

10. Defendants ina the allegations of. Paragraph 16 of

the Amended Complaint.

ters Le ee ERAT INR Cm LERMAN AA ACLRAB GT

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the Amended Complaint. | :

12. Defendants deny the allegations of Paragraph num- <

11. Defendants deny the allegations of Paragraph 17 of

:. bered 18 of the Amended Complaint and each and every .

allegation containéd in the subparagraphs therein,

13. Defendants: deny the allegations of Paragraph 19 of

the Amended Complaint. - : ee tae

[21-22] 14. Defendants ‘admit the allegations of Para-

graph 20 of the Amended Complaint. . . iy

; | gitiin: 45

Further answering the Amended Complaint, Defendants - .

would show unto the Court that the issues of the unconsti-

tutionality on its face, of House Bill 046 of the 1964 Session

of the Mississippi Legislature, and the unconstitutional —

application and use of said statute have been raised by the

complainant Cameron and are now pending: in the State

Courts of Mississippi as shown by a copy of a Motion to

Quash filed in the County ‘Court’ of Forrest County, Mis-

- Sissippi, which copy was attached: to the Answer to the

original complaint filed in this cause by the Oe BN

James Finch and which said copy, er exhibit, is adopted as

a part of this answer and prayed to be taken and considered.

by the Court in connection with this answer: |

Wuererorz, Defendants pray that this action be dis-

missed at the cost of Plaintiffs. —_

® are ® * * *

oat | fe

[23] Separate Answer or Patt B. J oHNSON, JR., [Nprvip-:

UALLY AND AS GOVERNOR OF THE STATE oF MISSISSIPPI

Comes Paul B. Johnson, Jr., individually and as governor

- of the State of Mississippi’ ‘and’ files herewith his Answer

to the Complaint filed _—— in the ‘above o-atyin’ and

numbered action :

il. Defendant i is without ii tacmelien sufficient to form a.

belief as to the allegations of Paragraph 1 of the Complaint

and, therefore, denies the same. .

- 2. Defendant admits the allegations of Paragraph 2 of

the Complaint.

3. Defendant denies that J oe R. King i is County Attorney

of Forrest County, Mississippi, but admits that ‘he is a

resident of the State of Mississippi, all as charged in the

third paragraph of the Complaint, improperly designated

as Paragraph 2. _

*- 4. Defendant admits the allegations of Paragraph num-

bered 3 of the Complaint.

[24] 5.-Defendant denies that Robert Walker is ‘Sheriff

‘of Forrest County, Mississippi but admits that he is a

resident of the State.of Mississippi. —

6. Defendant denies the allegations of Paragraph num-

bered 5 of the Complaint.

7. Defendant denies the allegations of Paragraph num-

bered 6 of the Complaint.

8. Defendant denies that under selec of House Bill 546,

1964 Session of the Mississippi Legislature he has entered

into a plan or conspiracy with any person to subject or

cause plaintiffs to be subjected to the deprivation of any

-tights, privileges or immunities secured to them by the

- Constitution and laws of the United States.

9. Defendant again denies that he is a member of any

conspiracy and denies that he has attempted to or threatened

to continue to attempt or to prosecute the complainants

under the color and. authority. of House Bill 546 or ‘under

. any other statute or law; all as charged i in Paragraph num-

bered 7 of the Complaint.

10.: Defendant is without information sufficient. to form —

a belief as to the’ allegations of Paragraph numbered 8 *. 7

the Complaint and, therefore, denies the same.

~ 11. Defendant is without information sufficient to form

DER ae AIP ee PRES TT * *

ngage

ict Rea tattle

sebcw,

a belief as to the allegations of Paragraph numbered 9 of ”

“ the Complaint and, therefore, denies the same.’

12, Defendant denies‘the allegations of Paragraph num-

bered 10 of the Complaint. ue

13. Defendant denies the allegations of Paragraph num- |

bered 11 of the Complaint.

[25] 14. Defendant is without information sufficient to —

form a belief as.to the allegations of Paragraph numbered

12 of the Complaint, and therefore, denies the same.

15. Defendant denies the allegations of Paragraph num- :

bered 13 of the Complaint. |

16. Defendant denies the allegatians of Paragraph num-

bered 14 of the Complaint, mere

_17. Defendant denies the allegations.of Paragraph num-

_bered 15 of the Complaint: 3 a

18. Defendant denies the allegations of Paragrauh num-

bered 16 of the Complaint. |

Further answering the Complaint, Defendant would show

unto the Court that the same issue as to the constitutionality

on its face of House Bill 546 of the Laws of the 1964 Regular

Session of the Mississippi Legislature and the issue of the

said act of the Legislature being unconstitutionally applied

and used as are raised in this action have been raised by

Plaintiffs and are now pending in the State Courts of Mis-

sissippi as is shown by a copy o aotion to quash filed in

the County Court of Forrest County, Mississippi, which is .

attached hereto and made a part of this answer.

Wuenrerorz, Defendant prays that this action be dismissed- Ps

as to him at the cost of Plaintiffs.

* ; e. os J 5 -* *

. ;

Sl ScD PR es ora DE eR ET IRN, Bo at . Bl i .

-18

[26] SEPARATE ANSWER OF AMES Fincu INDIVIDUALLY AND

as District ATTORNEY OF est County, MISSISSIPPI

— James Finch, i sdeihs and as District Attorney -

of Forrest County, Mississippi and files herewith his answer

to the Complaint ‘filed aan and him in the above styled and

numbered action: |

. 1. Defendant admits the allegations of Paragraph 1 of

_ the Complaint.

2. Defendant admits the allegations of Paragraph 2 of

the Complaint. -

- 3. Defendant denies that Joe R. King is County Attorney

of Forrest County, Mississippi but admits that he is a resi-

dent of the State of Mississippi; all as is charged in the

third paragraph of the Complaint, improperly marked Para-

graph No. 2. ;

4. Defendant admits the allegations of Paragraph num- .

bered 3 of the Complaint.

[27]. 5. Defendant admits that Robert Walker is the

‘Sheriff of Forrest County, Mississippi, but admits that he

is a resident of the State of Mississippi.

_ - 6. Defendant denies the allegations of Paragraph rifim-

bered 5 of the Complaint.

7. Defendant denies the allegations of vias ties num-

bered 6.of the Complaint.

' §.-Defendant denies that under color of House Bill 546

of the Laws of the 1964 Regular Session of the Mississippi

_ Legislature, he has entered into any plan or conspiracy with

any person to subject or cause to be subjected, the com-

plainants or either of them to the deprivation of any rights,

privileges or immunities secured to them or either of them

by the Constitution and laws of the United States. |

9. Defendant denies the allegations of Paragraph num-

bered 7 of the Complaint.

10.:Defendant admits that on April 9,-1964, House Bill |

546, as described, was read ‘to certain persons in the City .

of Hattiesburg, Forrest County, Mississippi. He admits |

that on April 10, 1964, the Complainant Cameron was ar- —

rested: and charged with a violation of said statute. He

denies that Complainant Gray continually faces the threat °

of arrest under said statute. 7

11. Defendant denies the allegations of Paragraph num-

bered 10 of the Complaint. . Bo iaice © ey

12. Defendant again denies that -he has entered into a

conspiracy or plan with any person and denies all .other

allegations of Paragraph numbered 11 of the Complaint.

[28] 13. Defendant is without information sufficient to.

form a belief as to the allegations of Paragraph, 12 of

the Complaint, and therefore, denies the same.

14, Defendant denies the allegations of Paragraph num--

bered 13 of the Complaint. | |

* _ 15. Defendant denies the allegations of Paragraph num-

_ ‘bered 14 of the Complaint.

16. Defendant denies the allegations of Paragraph num-

bered 15 of the Complaint. heen

‘ 17. Defendant denies the allegations of Paragraph num-

bered 16 of the Complaint. A eee

Further answering. the Complaint, Defendant would

show unto the Court that the issues of the unconstitution-

ality on its face of House Bill 546 of the 1964 Session of:

the Mississippi Legislature and the unconstitutional ap-

plication and ‘use of said statute have been raised by the

Complainant Cameron and. are now pending in the State

Courts. of Mississippi as shown by. a copy of a motion to

quash filed in the County Court of Forrest County, Mis- _

sissippi, which copy is hereto attached and made a part

_ of this instrument.

WaererorE Defendant prays that this action be dis-

mfssed as to him at the cost of Plaintiffs.

SEPM O LNT ETT EET PHN a ieee ;

‘-

[29] Opinion. or Untrrep States Disraicr Court Seas 14,

1964

Before Raves, Cireuit Judge, and Cox and Mizz, -Distriet

J udges.

Muzz, District J udge: Plaintiffs, The sess John Earl

,Cameron and Mrs. Victoria J ackson Gray, filed an original

complaint against Paul Johnson, Governor of the. State

of Mississippi; Joe R. King, County Attorney of Forrest

County, Mississippi; James Finch, District Attorney of

Forrest County, Mississippi; and Robert Walker, Sheriff .

of Forrest -County, Mississippi, as Defendant, seeking a

declaratory judgment and injunction,. and attacking the

constitutionality of House Bill No. 546 Laws of 1964 of

the Legislature of the State of Mississippi. Subsequently

they filed an amended bill of complaint by which they sub-

stituted James K. Duke in the place and stead of Joe R.

King as County Attorney, and substituted W. G. (Bud)

Gray in the place and stead of Robert Walker as Sheriff

. of Forrest. County, Mississippi, and by the amended com-

plaint averred the suit as a class.action, as they had not .

done in the original complaint,.and at the hearing of the

case on the merits it was agreed that the issues.in the case

are fully stated and made by the amended complaint and

the answers of the Defendants.

The ‘Act under attack reads as follows: °

[30] | House Brun No. 546

Ani Act to Prohibit the Unlawful Picketing of State Build-

ings, Courthouses, Public Streets, and Sidewalks.

- sippi: .

~ Section 1. It shall'be unlawful for any person, aa or

in concert with others, to engage in picketing or mass

demonstrations in such a manner as to obstruct or inter- __

fere with free ingress or egress to and from any public

premises, State property, county or municipal courthouses,

city halls, office buildings, jails, or other public buildings

or property owned by the State of Mississippi or any

county or municipal government located therein or with

SRO Ss AEE Ye — Soe Nom ees

— bs

Be It Enacted By the Legislature of the. State Of Missis-

ate ie da eget obaviiere Sistah 5

eae See

the transaction of public business or administration of

justice therein or thereon conducted or so as to obstruct

or interfere with free use of public streets, sidewalks or

other public. ways adjacent or contiguous thereto, ee

Section 2. Any person guilty of violating this act shall -

be. deemed guilty of a misdemeanor and, upon conviction

thereof, shall be fined not more than’ Five Hundred Dollars -

($500.00),- or imprisoned in jail not more than six (6) |

months, or both such fine and imprisonment.

Section 3. This act shall take effect and be in force from

and after its passage.

The Plaintiffs are Negro citizens of Forrest County,

Mississippi. On April 27, 1964, prior to the amended com-’

plaint, a supplemental complaint «was filed bringing in

additional plaintiffs who joined in the allegations of ‘the

original Plaintiffs and made further allegations with refer-

ence to themselves. ;

It is the contention of ‘the Plaintiffs that the statute

is unconstitutional on its face in that it is broad in its

Sweep, SO vague and indefinite in its definition and charac-

terization of prohibited activity that it fails to meet the

minimal, standards of the First and Fourteenth Amend-

ments; (2) that it is void as violative of the due process

guaranty of the Fourteenth and Fifteenth Amendments;

_ and (3) that it is contrary to the First Amendment in that

it attempts to limit the right to picket by connecting it with

vague and indefinite standards. } )

_ It is the coritention of the Defendants that the statute

is constitutional on its face and within the. police powers

of the State; (2) that the Plaintiffs have a full, complete

' [31] and adequate remedy at law and that before the Plain-

tiffs can attack the constitutionality of the Act they must.

.. first exhaust the statutory remedies in the State courts; _

-- (3) that this Court as a Federal Court should abstain from -

passing upon the constitutionality of the statute until the

~ State has first had an opportunity. to pass on its constitu-

tionality ; that, also, the Defendants have raised the question

of. unconstitutionality in the State court where they are -

being prosecuted. — 7

We agree ‘with the contention of the Defendants. Title

28, U.S.C., Section 2283, provides as follows:.—

SSC ETHER Cee EI MOET RR Rete ogs ST en REE STR ONAN EN TOD Ser

22 | | nee ng oe :

ane 8 ee eae

CaN Court of the United: States may not grant an in- ~~~. ~-—1.

junction to stay proceedings in a State Court except as a:

. expressly authorized by Act of Congress or when necessary - '

in aid of its jurisdiction or to proteet or effectuate its. a

judgments.’’ :

‘This statute, of course, is not jurisdictional, but ex-

presses very clearly and definitely the policy and thinking

of Congress. Such a statute has been on the books for

‘ many years arid still stands in the above quoted form.

Certainly there are times and occasions which are. excep-

tional, when it is proper for the Court to enjoin the prosecu-

tion of a criminal case, but the facts of this case and of

this record do not approach such a situation. This statute

is one of comity existing between the Federal Courts and

the State Courts and it is the. policy of the Federal Courts

to*follow the statute, unless the exigency of the occasion

requires that an injunction be issued.. An injunction in

any case is an unusual and extra-ordinary writ or remedy

and is used with great caution. When there is a plain, |

_adequate and complete remedy at law, the Federal Courts

PN eA ace) Sa ANAT hee BAO AD on im 18 ot hd Eee ,

will abstain. It is the duty of petitioners : of this type to .

exhaust first all state remedies. . ;

-It is well settled that a Court will not pass on the con- ?

oe a

Be vcd of an Act of Congress or of a Legislature

unless it is necessary to a determination of the controversy

[32] by the Court. In this case it is not necessary to pass.

on the constitutionality of this Act, even though there ~ —

- ean be slight doubt as to its constitutionality, and where :

it is rather clear that it is constitutional, the Court leans

to a doctrine hereinbefore announced of abstention. until a

it is passed upon by the courts of the State. | 4

; The main attack on this Act is that it is vague, uncertain, -

-#——and fails. ny standard by which one could under.

: stand an indictment or criminal information.

‘ment is not sound. There is no basis of fact in this record ;

‘or by a reasonable. construction of the statute by which

its constitutionality could: be doubted. The Plaintiffs in

this case and their attorneys place their attack on the Act

upon the ground that it is an effort by the State to prevent

Negroes from registering for voting purposes. They con-

‘tend that the Defendants in this case-have conspired to

_ prevent the Negro‘citizens of Forrest County from reg-

Re EE EELS EOE <= - ILO STILE > = LE IRN? .

BE eae bx

23 |

#-.no-..,,,48tering. Such is not'the case. That was not the purpose

of the statute. The statute does not undertake in the

slightest degree to. condemn picketing or registering or

any peaceable conduct of. any citizen. There is a well

settled principle of law and, in addition thereto, a statute

in Mississippi to the effect that words and phrases in an

Act are given their usual and ordinary construction unless . ~

the Act indicates to the contrary. Applying this rule of

. law to the Act here. under attack, it is clear that picketing

or peaceful demonstrations are not condemned, nor are

expressions of opinion. Let us emphasize the gist and |

purpose of the Act, and it reads:

‘It shall be unlawful for any person, singly or in concert ._

with others, to engage in picketing or mass demonstrations

in such a manner

as to Obstruct or Interferé With Free

Ingress or Egress To and From Any. Public Premises,

=~ ¥

State Property, County or Municipal Courthouses, City

Halls * * * * or Other Buildings * * * * or With the Trans- .

action of Public Business or Administration of Justice

Therein or Thereon Conducted or so as to Obstruct or

Interfere with Free Use of the Public Streets * * * *”

[33] Thus it is readily seen that what the Act condemns,

after defining the

ingress and egress

‘fobstruction’’ has

places, is the obstruction of the free

to and from the buildings. The word

a definite meaning and has been con-

strued by the Supreme Court of Mississippi under a similar

statute where the word ‘‘obstruction’’ was the main point

of the case. . This is the case of State v. Lucas, 73 So. (2)

158. In this case

Lucas was: charged with obstructing a

railroad by an indictment. The lower court sustained a

demurrer on the ground that the statute under which he

-was indicted was

be constitutional.

unconstitutional. The Supreme Court

The Act under attack tliers was Section

2340 of the Mississippi Code of 1942, which reads:

| ‘Railroads—Wantonly or negligently obstructing or in-

juring—If any person shall wantonly or negligently ob-

struct or injure any Railroad, upon conviction he shall be

_ fined not more th

than twelve months in the county jail, or both.’?

an $2,000.00 or imprisoned no longer .

ASL SAL REPRE Ts ' . sania:

holding the Act to

The Defendant ‘was indicted for negligently and wan-.-

. tonly leaving his unattended automobile parked on said

- railroad at a crossing of said railroad and the private road

for automobiles. The Court said:

«Appellee says the statute is - unconstitutional or that

. it\does not’ sufficiently define the elements constituting

the crime and the indictment is void because it does not

sufficiently inform the carpncant of the acts he is charged =

to have committed.’’

‘The Court further said:

“‘But we should give to the word its ‘nian and usually N

accepted meaning, looking to the end to be accomplished,

and doing that, we think it means. the railroad track—the

part of the right of way occupied by the tracks over which

. the trains, cars, etc. are transported. The meaning of

the indictment is that appellee obstructed the tracks of the

railroad. -

The Court. then tok up the definition of the word ‘‘ob:

struct’’, since appellee was contending that .it was too

broad and general, and cited Webster’s International Dic-

. tionary, 2d Edition, defining the. word ‘‘obstruct’’, all of

which definitions in the dictionary are complete within

[34] themselves. Among others, it means to block up, to

stop up, or to close as a way. The Court then says:

‘‘The objects of the statute under consideration, con-

strued by the section immediately following it, are to

prevent interference with the proper use of the railroad

in carrying out its, functions and to protect its property,

passengers and: servants from injury or probable injury.”’

The above case was decided in June, 1954. See also,

Words and Phrases, 2d Ed.,; Vol. 29, defining the word

“obstruct” and the words ‘interfere. ‘witha .

On the definite, positive, unequivocal and certain ‘mean-

~ ing of the word ‘‘obstruct’’, a statute containing it advises

the public what it condemns. One charged with obstruction -

by an indictment, is‘entitled to a trial and then it is a

question for the Court to determine whether the facts

proven against him show him.to be guilty.

One of the leading cases, familiar to all lawyers in the

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courts, is that of Douglas v. Jeannette, 319 U.S: 157. At

page 163 of the report’ the Supreme Court used this lan-

guage: , :

*“‘Congress, by its legislation, has adopted the policy,

with certain well defined’ statutory exceptions, of leaving -

generally to the state courts ‘the trial of criminal cases

arising undéf state laws, subject to review by this court .

of any federal questions involved, Hence, courts of equity

in the exercise ‘of their discretionary powers should con-

form to this poi by refusing to interfere with or em-

barrass threatene proceedings in state courts save in those

exceptional cases which call for the interposition of a

court of equity to prevent irreparable injury which is

clear and imminent; and equitable remedies infringing

_ this independence of the states—though they might other:

wise be given—should be withheld if sought on slight or

inconsequential grounds.’’ Giovanni v. Camden Ins. Ass’n, |

296 U.S. 64; Matthews v. Rodgers, 284 U.S. 521; ef. United

States ex, rel. Kennedy v. Tyler, 296 U.S. 13; Massachusetts’

’ State v. Benton, 272 U.S. 525, cited by them. as

In that same case, supra, Mr. Chief Justice Stone used

this impressive penn | ,

“It is a familar. rule that courts 6f equity do not or-

dinarily restrain criminal prosecution. No person is im-

mune from prosecution in good-faith for his alleged crim-

inal acts. Its imminence, even though alleged to be in

_ Violation of constitutional ‘guaranties, is no ground for

equity relief since the lawfulness. or constitutionality of

the statutes or ordinance under which the prosecution is

brought may be determined as readily in a criminal case

as in a.suit for injunction.”

There is a long line of decisions by the Supreme Court

[35] of the United States upholding this doctrine. See

Davis v. Burke, 179 U.S. 399; 45 Law Ed. 249, Ex Parte

Hawk, 321 U.S. 114; 88 Law Ed. 572. Stack v. Boyle; 342°

U.S. 1; 96 Law Ed. 3. Brown v. Allen, 344 U.S. 443; 97

Law Ed. 469. Amalgamated Clothing Workers of America

v. Richman Bros. Co., 348 U.S. 011;-99 Law Ed. 600.

With reference to the statute prohibiting an injunction

to stay proceedings in a state court, 28 USCA, Sec. 2283,

in the Amalgamated case, supra, the Supreme Court ap-

- proved the action of the Court of Appeals denying the in-

- junction, holding that the quoted statute constituted ‘‘Leg-

islative policy *°* * * in a clear cut prohibition; uamucane

only by specifically defined/ exceptions.”?

See also Snowden v. Hughes, 321 U.S. 1; 88 Law Ed. 497.

" Schwartz ‘v..Texas, 344 U.S. 199; 97 Law Ed. 231.

’ In Speiser v. Randall, 357 US. 513, the Jeannette case

- was cited in a cunearting opinion by Mr. Justice Black —

in support of a different point from that under considera-—

tion. Jeannette was also cited in the majority in Monroe

v. Pape 365 U.S. 167 and in.the dissenting opinion by Mr..

Justice Frankfurter in that case.

See also Stefanelli v: Minard, 342 U'S. 117 and Darr Vv.

_ Burford, 339 U.S. 200.

.. The statute which prohibits: federal courts granting in-

- junctions to stay proceedings in a state court is very similar

. to the statute, in its language, which prohibits the federal

“courts from issuing a writ of habeas corpus in behalf of

“ a person in custody pursuant to a judgment of the state

court, unless it appears that the applicant has exhausted _

remedies available to him in the courts of the state, with

certain exceptions, because it is the statement of the policy

by Congress that. the fedéral courts shall not interfere

with state proceedings except under unusual circumstances. |

[36] ‘This statute with reference to habeas corpus arose

in the case of the application of Elizabeth Wyckoff in the

Southern District of Mississippi and the opinion of the

District J udge is reported 196 Fed. Sup. 515. This is a

case that is very applicable to. the facts of the case that:

is here pending. Wyckoff was in jail‘and sought a writ of ~

habeas corpus, but it appeared from the statutes of the

_ State of Mississippi that she had a complete, adequate

and full remedy at law under the laws of the State, and

the opinion in that case outlines the procedure that the

State has or gives to one who is unable to pay costs or

give bond, etc. In that case several quotations specifically

point up quotations from the Supreme Court of the United’

States in some of the cases that have been hereinbefore.

' eited. The District Court denied the writ of habeas

corpus to Wyckoff andthe applicant appealed to the Court

of Appeals for the Fifth Circuit. The Court of Appeals

es we = al ES " “jew ¥ PE

ee ee ee Re one

. affirmed the District Court. I do not find where the opinion .

of the Court of Appeals is reported in the Federal Reporter,

but it is reported in 6 Race Relations Law Reporter, 793.

Again the opinion of the Court of Appeals’is approved in

the case of James Brown, et al v. Rayfield, 320 Fed. (2d)

196. In the case of Rayford, who is Chief of Police of the

City of Jackson, Mississippi, Chief Judge Tuttle, being the

organ of the Court, quoted from the Wyckoff case with ap-

proval on similar facts and again approved the order of

the District Court in denying the petition for writ of

habeas corpus. The petitioners then. made an application

_ to Mr. Justice Black and Mr. Justice Clark who were acting

jointly as members of the United States Supreme Court

for the ‘grant of the petition for habeas corpus. In deny-

ing the application those justices stated: .

‘“‘The petition for habeas corpus is denied because the

factual allegations fall short of Showing that there are —

[37] no Mississippi State processes available by appeal or

otherwise for petitioners to challenge that state conviction,

which processes would effectively protect their constitu-

tional rights, particularly since any denial of such rights.

by the highest court of the state can be remedied by ap-

propriate appellate proceedings in the. Supreme Court

of the United States.’” ;

The Fifth Circuit again approved the same principle

in the per curiam opinion in the case of Green v. Balkcom,

Warden of the Georgia State Prison, decided April 23,

1964, reported in 331 Fed. (2d) 742 and dismissed the

petition for writ of habeas ‘corpus. eo

_In the case of Allen-Bradley Local No. 1111, et al v.

Wisconsin Employment Relations Board, et al, 315 U.S.

740 the Supreme Court of the United States said this:

‘Nor will we assume in advance that a state will so

construe its law as to bring it into eonflict with thé Fed-

eral Constitution or an Act of Congress.’?

The case of Wilson v. Schnettler, et al, 365 U.S. 381.

is a conclusive authority on the doctrine that when a peti-

tioner. has invoked the jurisdiction of the state court the

_ federal court will abstain on the ground that he does have

‘.. @ complete remedy at law and has invoked the jurisdiction

- of the state court. rai fat

a a ee oar

Tn the case at fae the ‘record, shows that petitioners

have:invoked the jurisdiciton of the state court of filing

a motion to quash the affidavits on the ground that the Act

is unconstitutional and the County: Court overruled that

'* motion—the exact facts as in the Wilson case.” In the

i Wilson cast, at page 384, the Court said:

; \{tIndeed, the allegations of the complaint affirmatively

° w that petitioner does have a remedy in the Illinois.

‘ court and that he has actually prosecuted it there, but only

to the point of an adverse interlocutory order. That court,

whose jurisdiction first attached, retains jurisdiction over |

, this matter to the exclusion of all other courts.”’

The soured, of that holding :was the case of Harkrader v.:

Wadley, 172 U:S, 148.. In the Harkrader case the Supreme

| Court said: =

“While a state court and a patert: of the United ‘States

ea may each take jurisdiction of a matter, the tribunal where

jurisdiction first attaches» “holds it, to the exclusion of.

- [38] the other, until its duty is fully performed . — the

jurisdiction involved is exhausted: ~

-, See also Peck. v. Jenness, 7 Howard ima the quotation

‘from it in the footnote.

_ Inthe recent case of NLRB v. Fruit & Vegetabis Packers

2 anti Warehousemen No. 88, decided April 20, 1964;. Mr.

] ~ JusticeeBlack’s concurring opinion points out that patrol-.

| ling is, of course, conduct and is not speech and, therefore, |

.is not directly protected by the First Amendment. Here,

. the statute under attack condemns conduct and not picket-

ing or expressions of free speech or of the press. No

_arrests.were made until there was a complete obstruction

by the petitioners ifi:such manner as to completely block ©

, the entrances ,and. exits of the courthouse doors.

-Another recent case decided by the Supreme Court is

_ that of Lawrence W. Baggett, et al, appellants.v. Dorothy

Bullitt, et.al, appellees, reported.in the U.S. Law Week of

date June 6; 1964; page 4425. _This case discusses freely

the doctrine of abstention atid reviews the many cases -

approving it, as well.as those under.certain exigencies

disapproving it, under the peculiar facts of that case

. and’the further fact that it was not such a statute of a

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state as a construction of it by the Supreme Court of the

state would aid the federal courts in giving the construction

to which it was entitled. A fair conclusion of law, in cases

‘of the types here involved, is that if the petitioners had

.raised the constitutionality of the law in the state court -

prior to the suit in federal court, then the latter must ab-

stain, provided the state has processes to pass upon.the

question presented. If the jurisdiction of the state court

has not been sought, even though available, and a litigant

seeks the jurisdiction of the federal court to enjoin a state

_¢riminal.prosecution, it is then the.duty of the federal court

to exercise sound judicial discretion on the facts of the case

presented to determine if it should. abstain or if it should’

[39] proceed. NAACP vy. Button, 371 U.S; 415; .England

v.. La. State Board of Medical Examiners, et al, 84 S. Ct.

461. In the Wyckoff case, supra, Fed. Sup., the District

Court pointed out the complete process by which the speedy

determination. could be had in a state court-of Mississippi,

so that the ‘question of delay in the state court to reach

a determination of the question is not present. x

Many cases have: been cited by counsél for plaintiffs

touching on freedom of speech and of the press, the right

to assemble and the right to picket, which, in our opinion,

-- are not applicable. to the facts-of ‘the case here; nor does

the 1964 Civil Rights Act have any application to these

'. , facts. We shall not undertake to differentiate each par-.

ticular case; however, the case of Thornhill v. ‘Alabama, ©

310 U.S. 88, as an illustration, was a case where a statute

was attacked on the ground that it was an abridgment of

freedom of speech, press, peaceful picketing, etc. and Mr.

_ Justice Murphy, who delivered the opinion of the Court, at’

page 105 of the report, said this:

‘‘We are not now concerned with picketing en masse or

otherwise conducted which might oécasion suck imminent

or aggravated danger to these interests as to justify a

statute narrowly drawn to cover the precise situation giv-

ing rise to the danger.’’ aia:

The statute here under attack in no way .condemns

peaceful picketing or freedom of speech or press. Tlie

record shows that for several days there was peaceful

: Picketing and marching and not a single arrest was made,

A a i a ae a ls

RUNS per ge: e

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30 | Stee reed ge

but on the dates charged in the affidavits the record over-

- whelmingly shows that en masse and by concerted action -

the plaintiffs completely blocked: ingress and egress to

the public offices of Forrest County, Mississippi.

A finding of fact and conclusion of law is prepared —

separately and filed along with this opinion and made a part

[40] of it as if copied herein. We are of the opinion that

under the law and the facts of this case it is the duty of the

’ Federal Court to abstain and permit the plaintiffs to pur-

sue their state remedies, as they have already commenced ;

_ to do,

The complaint and the amended complaint, therefore,

will be dismissed and: the relief sought will be denied, and —

the plaintiffs will be assessed with all costs.

S. C. Mize, United States District J udge. Harold

Cox, United States District. J udge. .

(July 11, 1964)

Honorable Richard T. Rives, United States Circuit J ren

Dissenting. ;

f4ll. SS *Biled July 14, 1964

Rives, Circuit Judge, dissenting: ‘

This purports to be a class action brought on behalf of

. persons who are attempting by peaceful picketing and

demonstrations to enforce the constitutional rights of Ne-

gro citizens of Mississippi to register and vote in that State.

It seeks to énjoin the enforcement of House Bill 546, 1964

Session Mississippi Legislature, which; after being passed —

unanimously by both the House and the Senate of the Mis-

sissippi Legislature, was approved by the Governor on

April 8, 1964. The statute reads as follows:

‘An Act to Prohibit. the Unlawful Picketing of State —

Buildings, Courthouses, Public Streets, and Side-

walks. , .

‘‘Be it Enacted by the Legislature of the State of Mis-

sissippi: . | |

‘Section 1. It shall be unlawful for any person,

singly or in concert with others, to engage in picketing -,

_ or mass demonstrations in such a manner as to obstruct

or interfere with free ingress or egress to and from

any public premises, State property, county or munici-

pal courthouses, city halls, office buildings, jails, or

other public buildings or property owned by the State

of Mississippi or any county or municipal government

located therein or with the transaction of public busi-

ness or administration of justice therein or thereon

conducted or so as to obstruct or interfere with free

use of public streets, sidewalks or other public ways)

adjacent or contiguous thereto. © 7 ee

“Section 2. Any person guilty of violating this act

shall be deemed guilty of a misdemeanor and, upon

conviction thereof, shall be fined not more than Five

Hundred Dollars ($500.00), or imprisoned in jail not

more than six (6) months, or both such fine and im-.

prisonment. paged: :

“Section 3. This act shall take effect and be in force

from and after its passage.’’ : :

The statute was implemented -on the day after its enact-

ment. One of the named plaintiffs, Reverend John Earl

idee sae eae 5 ‘ ee, . PARES 2M ASI ATI £8 8s NURS oe a ONC .

Cameron, was threatened with‘arrest and on the succeeding

[42] day, April 10, he was arrested. for violation of the

statute. Forty-odd other persons were arrested on the same

occasion while picketing the Forrest County Court House’

in support of the Negro voter registration campaign. Nu-

merous other persons, including the other named plaintiff

Mrs. Victoria Jackson Gray, were threatened with arrest

but not actually arrested.

. This action was instituted on April 13. A hearing on the

application for interlocutory -injunction was held on April

29, but decision om that application appeared not necessary

in view of the commendable action of the Attorney General

of Mississippi in securing the postponement of the trial of

any prosecutions for violating the statutes until at least

_July 15, 1964. The cause ts now submitted for final decree

- upon: the amended complaint and answer thereto and upon

affidavits.

. As might be expected, the plaintiffs’ affidavits are to the

effect that the picketing was peaceful and orderly and did |

not block any of the entrances or exits of the courthouse,

while ‘the defendants’ affidavits are diametrically to the

contrary and to the effect that the picketing actually ob-

structed and unreasonably interfered with ingress and

egrees to and from the courthouse. Photographs of demon-

strations are attached to some of the defendants’ affidavits.

Without the. benefit of oral testimony and cross-examina-

. tion of the witnesses it is sis to resolve the conflict

of testimony..

- Similar conflict is to be anticipated in most, if wit all,

prosecutions under this statute, for what constitutes ob. te

struction’’? or ‘‘interference’” is essentially a matter of

* [43] opinion.? : .

In Mississippi, either an officer or a private person may |

1“¢Obstruction’’ of the fixed rails of.a railxoad track is

a far more definite concept. See State v. Lucas, Miss.

1954, 73 So. 2d 158; Turner v. Southern Railway Co., Miss.

1916, 73 So. -62. :

_ * 2 See definitions of ‘ obstruct” and “obstruction’’ in 29

Words & Phrases, Perm. ed., pp. 80, et seq. and pocket

supplement, and of ‘interfere’? and ‘<interference”” i in 22.

id., pp. 253 et seq., and pocket supplement. .

eee a es

‘ Fd

* =

arrest any person without warrant for an indictable offense —

committed in his presence.* The initial decision of whether .

picketing or demonstrations constitute ‘‘obstruction”’ or

“‘mterference’’ will normally be made by the arresting offi-

cer or even by a private person serving as a vigilante. This .

statute thus furnishes the means by which picketing and .

demonstrations may be practically forbidden—certainly un-

til the prosecutions reach the trial stage.

Picketing is not beyond legislative control, but'a statute —

against picketing must be exact and precise, for example,

by limiting the pickets to a certain designated reasonable

number or by prescribing that they walk at a certain named

reasonable distance from each other. Broad, Sweeping and

inexact terms of’a statute regulating picketing necessarily

encroach on freedom of speech and press...

[44] As said in Shelton v. Tucker, 1960, 364 U.S. 479, 488:

“In a series of decisions this Court has held that, -

_ even though the governmental purpose be legitimate and

substantial, that purpose cannot be pursued. by means

that broadly stifle fundamental personal liberties when

the end can be more narrowly achieved. The breadth

of legislative abridgment must be viewed in the light

of less drastic means for achieving the same basic pur- —

pose.’’

In a case decided as late as June 22, 1964, the Supreme

Courtsaid: ~~. °

‘‘Tt is a familiar and basic principle, recently reaffirmed

‘in NAACP.v. Alabama, US. ,.-. , that ‘a gov-

3 Mississippi Code 1942, sec. 2470. -

. Thornhill v. Alabama, 1940, 310 U.S. 88, 100, 101; Carl-

son v. California, 1940, 310 U.S. 106, 112; Edwards v. South

‘Carolina, 1963, 372 U.S. 229, Henry v. City of Rock Hill,

1964, 376 U.S.776. ~ ° 4 .

‘*Broad prophylactic rules in the area of free expression

are suspect.. See, e¢.g., Near v. Minnesota, 283 US. -697;

Shelton v. Tucker, 364 U.S. 479; Louisiana ex rel Gremillion

' v. NAACP, 366 U.S. 293. Cf. Schneider v. Irvington, 308

- US. 147, 162. Precision of. regulation must: be the touch-

stone in an area so closely touching our most precious

_ fréeedoms,’’ N.A.A.C.P. v. Button, 1963, 371 U.S. 415, 438.

NRT ILE IC OTT RD RST = rer

psa

ernmental purpose to control or prevent activities con-

stitutionally subject .to state regulation may not be ~

achieved by means which sweep unnecessarily broadly

and thereby invade the area of protected freedoms.’

See, e.g., NAACP v. Button, 371 U.S. 415, 438; Louisi- .

ana ex rel. Gremillion v. NAACP, 366 U.S. 293; Shelton

v. Tucker, 364 U.S. 478, 488; Schware v. Board of Bar

Examiners, 353 U.S. 232, 239; Martin v. Struthers, 319

' US. 141, 146-149; Cantwell v. Connecticut, 310: U.S.

296, 304-307 ; ‘Schneider v. State, 308 U.S. 147, 161,

165. -

Aptheker, et al. v. r. Secretary of State, 1964, 32 L.W. 4611,

4613.

The same opinion quoted with apnittorad from NAACP v.

Button, 371 U.S. 415, 432, 433, as follows:

‘‘[IJn appraising a statute’s inhibitory effect upon

such rights, this Court has not hesitated to take into

account possible applications: of the statute in other

factual contexts besides that at bar. Thornhill v.. Ala-

_bama, 310 U.S. 88, 97-98; Winters v. New York, [333

U.S. 507] 518-520. Cf. Staub v. City of Baaley, 355

US. 313 .... The objectionable quality of vagueness

. and overbreadth does not depend upon absence of fair

notice to a criminally accused or upon unchanneled

delegation of legislative powers, but upon the danger

of tolerating, in the area of First Amendment ‘free- -

doms, the existence of a penal statute susceptible of

sweeping and ‘improper application. Cf. Marcus v.

Search Warrant, 367- U.S. 717, 733. - These freedoms

are delicate and vulnerable, as well as supremely

precious in our society. The threat of sanctions may |

deter their exercise almost as potently as the actual

application of sanctions.’’

It is difficult to conceive of a statute drawn in broader

or more vague and sweeping terms than that here under

attack. In my opinion, the statute is so clearly unconstitu-: ~

tional that this case is hardly one ‘‘required ...to be heard ©

and determined by a district court of three ‘judges. aie ae

U.S.C.A. § 1253. See Bailey v. aesea tee 1962, 369 U.S. 31,

ANY eA oe ngs oe aetege om wate 2. ee qs re —

wt Men

vacating and remanding Bailey v. Patterson, S.D. Miss.

1961, 199 F.Supp. 595. : ;

[45] On the subject of abstention, I need not repeat. in

this dissent the argument contained in my dissenting opin-

ion in Bailey v. Patterson, supra, 199 F.Supp. at: 615-618.

The jurisdiction of this Court is invoked under 42

U.S.C.A. § 1983, among other statutes. As was said in Mc-

Neese v. Board of Education, 1963, 373 U.S. 668, 671, 672:

_ ~ “That is the statute that was involved in Monroe v.

Pape, supra [365 U.S. 167]; and we review its history

at length in that case. 365 U.S., at 171 et seg. The

purposes were severalfold—to override certain kinds

of state laws, to provide a remedy where state law was

inadequate, ‘to’ provide a federal remedy where the

state remedy, though adequate in theory, was not avail-

able in practice’ (id., 174), and to provide a remedy in

the federal courts supplementary to any remedy any

State might have. Jd.,180-183. — |

‘‘We.would' defeat those purposes if we held that.

assertion of a federal claim in a federal court .must

await an attempt to vindicate the same claim in a state

court. The First Congress créated federal courts as

the chief—though not always the exclusive—tribunals )

for enforcement of federal rights. . . .”’

‘In my opinion, the statute under attack is elearly uncon-

stitutional, and the plaintiffs are just as clearly entitled to -

have its enforcement enjoined. I therefore respectfully

dissent.

ESR MATINEE OTC IS ONE TN 8 ELA IN TR Re “=

[46] ‘Frvvrne or Facts anp Conciusions or Law,° —

+ Laid . ° Juty 14, 1964

- This Cause coming on to be heard before the Court on

affidavits and photographs presented by the parties under

stipulation of counsel as the sole testimony and evidence,

and the Court having received and considered such testi-

mony and reasonable inferences deduced therefrom, to-

gether with briefs of the parties in support of their respec-

tive contentions, makes the following Finding of Facts and -* |

. Conclusions-of Law thereon.

Finding of Facts -

This suit is presented on its merits to the Court on the

disputed issues of fact and law made by the amended: com-

plaint and answer of the defendants thereto. . This is a class.

action by the plaintiffs against the defendants under Civil

‘ Rule 23. The defendants: dre sued as individuals and as

officials of the State of Mississippi, County of Forrest and .-

as attorney for the 12th Circuit District of Mississippi. No . ° |

evidence or testimony was adduced by the. plaintiffs to.sup-

port their charge of the existence of a plan, or conspiracy

-among the defendants culminating in the passage of House

Bill 546, Mississippi Laws 1964; and the Court finds that

there was no such plan, or purpose, or design or intendment

[47] of House Bill 546, Mississippi Laws 1964; and that no

_ evidence or testimony was adduced by the plaintiffs to show .

that it was the intent or purpose of said enactment of the

Legislature of Mississippi to suppress, deter or in any man-

ner impinge upon, impede or violate any constitutional

right of the plaintiffs to free speech, assembly and right to

petition for redress of grievances by demonstrating peace-

fully and lawfully; and more particularly, said Act was not

designed or intended to, deter, or impede efforts by any °

citizens to register to vote, or to exercise, any other right

of a citizen. ni 7

. . House Bill 546, Mississippi Laws 1964 was passed: into

law in Mississippi on April 8, 1964. The courts of Mis- ©

sissippi have not construed the Act, or passed on its con-

‘stitutionality. The plaintiffs in this case have presented

to the county court of Forrest County, Mississippi, a court

of general jurisdiction having full jurisdiction of all of the

PRR SPCR AOE Me EMEA 2 OIE OE RIPE ATTF 8H ALS ee 2 y \

z Ma Hc; poate a

. .

parties agd the subject matter hereof, in the case of State of

Mississippi v. Ruth Campbell, et al, (including all plaintiffs

herein) in Cause No. 7781-7824 on the docket of said court,

the question of the constitutional validity of said House

Bill 546, Mississippi Laws 1964, by a motion to quash the

information, or affidavit on. which such prosecution was

commenced and will-bé prosecuted; and that said court in »

due course duly overruled said motion; and said plaintiffs

(defendants there) have the right of appeal from said de-

cision to the circuit court of Forrest County, Mississippi,

thence to the.Supreme Court of the State of Mississippi,

and thence to the Supreme Court of the United States, if

necessary or desired, in furtherance of their effective and

efficient statutory remedy fully available to them and being

- currently pursued at this time.

[48] The Court expressly finds under such facts and cir-

cumstances that no need or necessity exists for this Court

to pass upon the constitutionality of House Bill 546, Mis- |

sissippi Laws 1964; and that it is the duty of this Court

. under such circumsfances not to pass upon the constitution-

ality of said enactment, unless absolutely compelled to do

.80, but that this Court is duty bound to follow decisions of

the Supreme Court of the United States, and of the United

States Court of ‘Appeals: for the Fifth Circuit which impel ~

_ this Court to abstain from making any decision on such

questions presented under the circumstances stated.

This Court simply does not believe and rejects. as false

the affflavits presented by the plaintiffs‘to show that they '

weré erigaged in ‘‘peaceful’’ and “‘lawful’’ picketing when

arrested under ‘this statute on the two occasions in suit.

The facts.as shown by a clear preponderance of the evidence

_ are to the effect that the plaintiffs in this case did engage

in peaceful and thus lawful picketing on other occasions,

‘ but that on the occasions in suit when some of the plaintiffs

were arrested and charged with violating this Act, that such

persoys deliberately and intentially blocked the sidewalk .

and one of the entrances to the county courthouse in Forrest

County, Mississippi, by walking so close together as to make

use of such ‘entrance and exit to and from said county

courthouse by the officials and business visitors impossible.

No peace officers on said scene at any time interfered with

the plaintiffs when they picketed in such number and at such

FERAL AGNES 2B IO I AG

distance apart on said sidewalk at such entrance to said

public building as to allow other citizens to make reasonable

. [49] use of such facilities for its intended purpose. The

Court, therefore, further ‘finds as a fact that the State of

Mississippi is prosecuting the plaintiffs in the state court

under said picketing statute in good faith, and is fully en-.

titled under the law to do so to conclusion of such prosecu-

tion, but this Court indicates nothing as to the guilt or inno-

cence of the. plaintiffs as defendants in said proceedings.

The full right of- the plaintiffs to free speech, assembly — ;

and petition were at all times completely preserved and

properly respected by the peace officers at the scene of this

incident at all times while the plaintiffs were peacefully and

lawfully exercising such well recognized ‘and well known

constitutional rights. But these plaintiffs intentionally and

. deliberately so conducted themselves on these occasions in

\ suit by such a large group of persons ravage in such a

‘small, crowded area and so close together as\to flaunt and.

invade the rights of others entitled to make necessary busi-

‘ness use of saidjpublic premises by making ingress and

egress to and

sible by the Presence of such human barriers and, obstruc-

* tions and impediments in said public passageway.

The Court thus further finds from the testimony adduced

' in this case that no Civil Rights of any plaintiff in this

case has been, or was violated, or impingedzupon by their

arrest and consequent prosecution under the facts and cir-

cumstances stated. ,

[50] | j) Conclnsions of Law

This Court has full jurisdiction of the parties to-this suit

and of the subject matter of this suit; and has the full power

and authority to do all that is herein done.

There is no need or necessity for this Court to pass upon

the constitutiondlity of House Bill 546, Mississippi Laws

1964, and this Court, therefore, declines to do so.

~The cases impelling abstention by this Court under the

facts and circumstances in this case are myriad; and this

Court yields to the justice and propriety of such doctrine

under the facts and circumstances in this case, and thus

abstains from making any decision or disposition of this

~ controversy between these plaintiffs and the state prosecut-

po Spf ee ese ee I TEEN LOMO OT NEES EES AD ELEN LE HOE LE LONE LO AAS GLEE ONES A

om the courthouse of said county impos- -

rt ee eee ene re es ee

EP este rec, a P

ie ns ia a SCRE RAS 9 1p pe RO chedes oie oT tee ee ae

ing authorities. The: ysupporting authorities cited in the-ac-

companying tnajority opinion of this Court, show and even

demonstrate that no constitutional right of any of the plain-

tiffs will be-violated by a-prosecution of them under this

Act in the state court for such offense with all constitutional —

- safeguards and efficient remedies fully available to them at

all times in the state courts. The plaintiffs have com-

menced, but have not exhausted the efficient and effective

remedies and defenses available to them in the state court

in said cases and are not entitled to any injunctive relief -

from this: Court against the prosecution of said cases in the .

state courts.

‘An injunction is. never strictly a matter of right even to

prevent irreparable injury, but the right to such writ al-

ways reposes within the sound judicial discretion of the

[51] Court to which such application is addressed. There

is no evidence in this case to show that any danger of irrep-

arable loss to the plaintiffs is either great or immediate,

and the Court finds that there:are no exceptional circum-

stances in this case to evoke the issuance by this Court of °°

such extraordinary process. Under the facts and under the

rules of applicable law in this ‘case, the plaintiffs are not

entitled to any injunctive relief herein.

Accordingly, the amended complaint is not supported by

any substantial, credible evidence to support or justify the

relief requested. It is the conclusion of this Court in the

exercise of its sound judicial discretion, that such extraor-

dinary relief is not due or suggested in this case, and in fur- ©

therance of the doctrine-of .abstention; that the amended

complaint of the plaintiffs is without merit and should be

dismissed at the cost of tie plaintiffs to be taxed under _

rules of this Court. |

July 10, 1964.

-Harold Cox, United States District J ies: Sidney

C. Mize, United States District Judge. ‘

Honorable Richard Ts Rives; United States Circuit J udge,

dissenting. | <

¥ aE Bg 7

[52] Norice or APPEAL TO THE SUPREME Couns OF THE

° Unrrep States .

. ys N otice is hereby given” that asipeliants barely appeal

~ « to the Supreme Court of the United States from the judg-

ment of this Court rendered on or about July 11, 1964 dis-

_ missing the complaint herein, and from each ‘and every

_ part thereof, ‘ |

TE ee Tegner ee - ‘

IL. -The clerk will: ‘please prepare a tesaaiiribt of the record

in this. case, for transmission to the Clerk of the Supreme

~ Court of the United States, and include in said transcript

_ the following: i a

. 1. Original amended complaitits of appellants.

ies 2, “Motion for convening of a three-judge federal court.

3. 3. All Answers. of the appellees. °

4. All affidavits presented by appellants and appellees.

3 [53] 5. Majority opinion and findings of fact of the

District Court Judges and the dissenting opinion

of the Cireuit Judge. °

phasis endaleiek Azribicatisdaatrnas pSaimer cinie Adeed, Maa ae

7) ek FS * * ‘f a &

ee a

“se - v o ait

Ores PR Sen aI e TCE ET LE, ere tA

154] Ormsion. oF THE Unrrep States District ‘Court,

_ DEceMBER 24, 1966 =

Before Rives and Coteman, Circuit Judges, and Cox;

' District Judge.

CoLEMaN, Circuit J udge.

This is the second: time this case has been batons this

Court for hearing and decision. Invoking Title 42, U.S.C,

§§ 1971, 1983, and 1985, the plaintiffs originally filed their ss

complaint on April 13, 1964, against the governor of Mis- °

sissippi and various officials j in Forrest County, Mississippi.

They sought a declaratory judgment .and injunction, at-

tacking the constitutionality of House. Bill No. 546 of the

‘. Laws of ee of 1964.” By Sppropriate amendments,

1 - °°” \ Ffouse Bill No. 546

_ An Act to -Prohibit the Unlawful Picketing of State

Buildings, Courthouses, Public Streets, and Sidewalks.

Be it Enacted by the Legislature of the State of Mis-

sissippi: ;

Section 1. It shall be unlawful. for any person, singly

or in concert with others, to engage i picketing or mass

' demonstrations in such a manner as to obstruct or [unrea-

sonably] interfere with free i ingress or egress to and from

any public premises, State property, county or municipal

courthouses, city halls, office buildings, jails, or other public -

buildings or property owned by the State of Mississippi

or any county or municipal government located therein or

with the transaction of public business or administration |

of justice therein or thereon conducted or so as to obstruct’

or [unreasonably] interfere with free use-of public streets,

’ sidewalks or other m6 ways adjacent or contiguous

‘thereto.

Section -2. Any person guilty of nae this act shall

be deemed guilty of a misdeméanor and, upon ‘conviction .

. thereof, ‘shall be fined not more than Five Hundred Dollars

($500.00), or imprisoned in jail not more than six (6).

- months, or both such mie and imprisonment.

- 42

the suit became a class action and plaintiffs seek to enjoin

the prosecutions already begun as wel as the future en-

forcement of the statute.

[55] The first hearing was before Circuit Judge Rives

_ and District Judges Mize and Cox. Upon full hearing,

relief was denied. The findings of fact, conclusions of

_ law, and opinion of the Court are reported at 244 Fed. Supp. —

846 (1964).

' Judge Rives dissented, being of the view that it would

_be ‘‘difficult to conceive. of a statute drawn in.broader or

more vague and sweeping terms than that here under at-

tack.’ In my opinion, : the statute is so clearly unconstitu-

tional that this case is hardly‘‘one required * * * to be

heard and determined by a District Court of three judges’

[citing authorities].”’ Moreover, he was of the opinion

that the doctrine of abstention should not have been in-

voked and that the plaintiffs were clearly entitled to an

injunction.

Upon appeal to the Supreme Cont, the Sideiieat was

vacated, 381°U.S. 741, 85 S.Ct. 1751, ©. L.Ed.2d ;

(June 7, 1965). The case was remanded ‘*for, reconsidera- :

‘tion in the light of Dombrowski v. Pfister, 380, US. 479.” 4

We were given the following specific directions: . i

‘‘On remand, the District Court should first con- j

. sider whether 98 U.S.C. § 2283 (1958'ed.) bars a fed- a

eral injunction in this case, see 380 U.S., at 484, n. 2. i

If § 2283 is not a bar, the Court should then determine }

whether relief is proper in light of the criteria ‘set —

forth in Dombrquski. Ts = F

B ;

fons ® eee | pote e + s Te eS

* adc eis SCA ed Soin hed lady alas xchat die playa ssp. ”

3 Mr. Justices Black, Harlan, Stewart, and White dissented, »

§. 381US., beginning at p. 742 and concluding at p. 759. ee)

Section 3. This act Shall take effect and be in force from i

and after its passage. :

Note: The word ‘‘unreasonably’’ in brackets in the ,

text were added by amendment to the Statute 4

- on July 9th, 1964.

House Bill 546 became Chapter 343 of the Laws of 1964, ;

later codified as Local of the eT Code of 1942,

; annotated.

PRES PORE IIE LP EE RIE . = —

[56], Upon the death of Judge Mize, the present writer

was designated to serve in his stead. :

In the meantime, the criminal prosecutions here sought

’ to be enjoined were removed from the State Court to the

United States District Court for the Southern District of

Mississippi. That Court remanded the cases (approxi-

mately 48 in number). This was appealed. The United

States Court of Appeals for the Fifth Circuit affirmed the

remand, sub. nom. Ben Hartfield, Et Al., v. State of Mis-

sissippt, 363 F.2d 869 (July 21, 1966), the Court being of

the opinion that the order should be sustained on the au-

thority of City of Greenwood v. Peacock, 384 U.S. 808, ._

86 S. Ct. 1800, 16 L.Ed.2d 944. _

On September 23, 1966, this Court stayed the criminal

prosecutions in. the State courts until such time as the —

instant proceedings are finally heard and determined.

In the meantime, on October 15, 1965, we heard further. -

proof and oral arguments on behalf of the parties. Later,

the plaintiff and‘the defendants filed written briefs. :

We now come to a consideration of thé questions which

the Supreme Court directed this Court to answer.

° I

Facts

Before giving our. views of what the answers should

be, we allude briefly to the facts. We-do not disturb, .of

course, the findings of fact already made by the Court as

they appear in 244 Fed. Supp. at 847. Pursuant to the

*In summary, at pp. 848 and 849 of. 244 F. Supp. 5 the

findings were:

1. There. was no evidence that there was a plan or

a conspiracy on the part of defendants or in the

enactment of the statute to suppress, deter, impede

or violate any constitutional right of the. plaintiffs °

to free speech, assembly, to register, to vote, or to

. demonstrate peacefully and lawfully;

2. The plaintiffs deliberately and intentionally: blocked

the sidewalk and one of the entrances to the. Court-

house; and

3. The prosecution for violation of § 2318.5 is in el

f | | .

aith. . tong - ae eer SD MRL BO IE RES EY aoa FOREPLAY 361 RTO Sine

440

hearing of Gaeaer 15, 1965, we supplementally_ find the

following to have been established by the evidence. —

‘(57] These plaintiffs, after arrest on ‘the courthouse

grounds, were charged in the State court substantially in

the language of the statute. The blocking of the sidewalks

_ and entrances and interfering with the free use of the court-_

house sidewalks and entrances was the gravamen of the

“offense. We do not sit in this proceeding to determine the

‘ guilt or innocence of the plaintiffs but it may be said that

we are here to determine whether there is substantial cause

in law and fact-supporting the right of duly constituted

state authorities to have these questions of guilt or in-

nocence determined by. appropriate criminal prosecution.

In any event, from all the evidence, including testimony

of witnesses on the stand, we find that for many days

prior to the arrest and prosecution here in question these

complainants and others, carrying banners proclaiming ~

their views, marched around the entire courthouse building.

The Sheriff, charged by law with-the custody of the court-

house and its grounds, requested the leaders to limit their

march ,to. the south half of the front of the courthouse

and around the narrow concrete, walks at the northwest

. corner of the building, fronting northerly on North Main ©

Street. For many days, the demonstrators honored this

request. Then, a larger group appeared and began march-

ing so close together that they blocked certain vital. en-

trances to the courthouse, particularly the entrance to the

Cooperative Extension Service, a function in which the

United States participates. At last, on. April 10, 1964,

the Sheriff read the statute to the participants and warned

them that if they violated it he would have no. choice but —

[58] to arrest them. Those participating in the picketing

conferred among themselves for most of the night, obtained

legal advice, and decided to march on the courthouse |

grounds the next day. We find that there was no harass-

ment, intimidation, or oppression of these complainants

in their efforts to ‘exercise their constitutional rights, but

they were arrested and they are being prosecuted in good

faith for their deliberate violation of that. part of the

statute which denounces interference with the orderly use

of courthouse ‘facilities by ‘all citizens alike.

* This — us face to face with the validity or invalidity

of Section 2318.5 of the Mississippi Code, and we consider

only the questions which the Supreme Court was of the

view that we should consider in determining the fate of

this litigation. :

Does 28 U.S.C.A. § 29838 deny this Court the power to

enjoin these criminal prosecutions? We think it does.

At the outset, the Supreme Court directed our. attention

to note 2, 380 U.S. at 484. This was a note to the opinion

- of the Court i in Dombrowski v. Pfister, ‘supra, which will ”

set out in the margin.* ~

8 Section 2283, 28 U.S.C. -

A Court of the United States may not grant an injunc-

tion to.stay proceedings in a State court except as expressly

authorized by Act of Congress, or where necessary in aid

of-its jurisdiction, or to protect or effectuate its einer

June 25, 1948, c. 646, 62 Stat. 968. bare

. *28 U.S.C. § 2283 (1958 ed.) 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 Congress, or where necessary in aid

of its jurisdiction, or to protect or effectuate its judgments.

The District Court did not suggest that this statute

denied power to issue the injunctions sought. This statute

and its predecessors do not pre¢lude injunctions against the

institution of state court proceedings, but only bar stays —

of suits already instituted. Se Ex parte Young,.supra. See

generally Warren, Federal and State Court Interference,

43 Harv. L. Rev. 345, 366-378 (1930); Note, Federal Power

to Enjoin State Court Proceedings, 74 Harv. L..Rev. 726,

728-729 (1961). Since the grand jury was not. convened

and*indictments were not obtained until after the filing of. ©

the-complaint, which sought interlocutory as well as per-

manent relief, no state ‘‘proceedings’’ were pending within

the intendment of § 2283. To hold otherwise would mean -

that any threat of prosecution sufficient to justify equitable :

intervention would also be a ‘‘proceeding’’ for § 2283. Nor

are the subsequently obtained indictments ‘‘proceedings’’

against which injunctive relief is precluded by § 2283. The

indictments were obtained only because the District Court

. te

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Dombrowski sought injunctive and. declaratory relief

prior to arrest or prosecution, it being alleged that such

was threatened to harass the plaintiffs and discourage them

and their supporters from asserting-and attempting to vin-

dicate the constitutional rights of Negro citizens of Louisi-

ana. Note 2.at p. 484 of 380 U.S. contains the following

: [59] specific language, ‘‘this statute [§ 2283] and its pred-

~ ecessors do not preclude injunctions against the institution

of state court proceedings, but only, bar stays of suits al-—

- ready -instituted.’’. The footnote continued, however, to

the effect that it was unnecessary to-resolve the question

of whether suits under 42 U.S.C. ¢1983 (1958 ed.) come.

under the ‘‘expressly authorized’’ exception to § 2283.

In Hill v. Martin, 296 U.S. 393, (1935) the Supreme Court ©

(opinion by Mr. Justice Brandeis) referred to the provi-

sions of this Section, then — as a =» saying,

at 403:

‘“«The prohibition of § 265 is against a stay of ‘pro-

ceedings in any court of a State’. - That term is com- ©

prehensive. It includes all steps taken or which may

be taffén in the state court or by its officers from the

«. Institution to the close of the final process. -It applies -

to appellate as well as to original proceedings; and is

. independent of the doctrine of res adjudicate.’’

Leaving aside any dissertation on ‘‘jurisdiction’’ or

‘‘comity,’’ we think the plain language of the statute

means what it says and constitutes a positive direction by

Congress which this Court should obey. The 1948 Revisors

did not change the-mandatory language as above expounded

_ by the Supreme Court.

“erroneously dismissed the complaint and dissolved the

temporary restraining order issued by Judge Wisdom in ~

- aid of the jurisdiction of the District Court properly

invoked by the complaint. We therefore find it unnecessary

~ to resolve the question whether suits under 42 U.S.C. § 1983

(1958 ed.) come under the ‘‘expressly authorized’’ excep-

tion to § 2283. Compare Cooper v. Hutchinson, ¥84 F.2d

119, 124 (C.A. 3d Cir. 1950), with Smith v. Village of Lans-

ing, 241 F.2d 856, 859 (C.A. 7th Cir. 1957). See Note,

74 Harv.-L. Rev. 726, 738 (1961). .

sneebemnmenperingreninssmce ff eons , —

47.

‘Since ‘this Court rendered its first decision, the. Fourth

Circuit Court of Appeals has decided Baines v. city of

Danville, 337 F.2d 579, August 10, 1964. ans :

[60] Section 22837 was there thoroughly analyzed. The -

authorities were e austively examined. Tt was held that

the section is a limitation on the exercise of the equity

jurisdiction of District Courts. The Court declined to en-

join prosecutions pending for violation of ordinances of

the City of Danville. It was held that 42 U.S.C. § 1983

does not create an exception to the anti-injunction statute.

We, therefore, are of the opinion that § 2283 of Title 28, .

U.S.C., prohibits this Court from ‘enjoining or abating the

criminal prosecutions instituted against the plaintiffs prior

. to the filing of the suit for injunction. ;

We are of the further opinion, following the decision

in Baines, that § 1983, 42 U.S.C., creates no exceptidn to

‘this anti-injunction statute.

The prayer that this Court enjoin or abeie the sending’

prosecutions will be denied.

The matter does not end here, however, for Baines hela

that restraints upon future prosecutions are beyond the

reach of § 2283. No doubt this principle i is what prompted |

the second portion.of the directidéns from the Supreme.

Court, which may here be restated as follows:

Applying the principles -of Dombrowski, did State

conduct in this case justify declaratory or injunctive

relief against further enforcement of the statute?

We answer this question in the negative.

We accept as correct the statement of plaintiff’s counsel

; appearing at page seven of his excellent brief that:

[61]: ‘‘Dombrowski sets forth two separate and dis-

tinct categories of circumstances in which the exercise

of federal equity power to restrain state criminal prose-

cutions is appropriate. The first * * * relates to situa-

tions in which state statutes are challenged on their

face as ‘overly broad and vague regulations of expres-

sion’* * *, [The second] is sacar: threatened prose- ©

cutions under the statute.’’

The. posture of this case necessitates discussion only of

the first category.

We therefore deal only with the contentions*of plaintiffs

that the statute is so broad, vague, indefinite, and lacking

in definitely ascertainable standards as to be void on its

face. ©

We think it is as specific and definite as the Florida stat-

ute sustained against such an attack in Harriett Louise

Adderley, et al., Petitioners v. State of Florida, No. 19,

October Term, 1966 [35 L.W. 4013], US. ‘

S.Ct. , L.Ed2d . That statute denounced “Every

trespass upon the property of another, committed with a,

malicious and mischievous intent * * *.’? The Florida ~

. Court defined-a malicious act as one done oe .

wilfulty and without any legal justification.

House. Bill 546 of the Laws of Mississippi does not pro-_

hibit picketing or mass demonstrations on courthouse

grounds. The prohibited factor is the obstruction or un-

reasonable interference with free ingress or sis to and .

from the courthouse.

. [62]. In Adderley, the Supreme Court saatheuiail vw fol-

: lowing observations: -

‘“‘The sheriff, as jail’ custodian, had ales as ihe ;

state courts have here held, to direct that’ this large —

crowd of people get off ‘the grounds,” and

‘The State, no less than a private owner of prop-

‘erty, has power to preserve the property under its

. control for the use to which it is ey dedicated,”’

and

“The United States Constitution does not forbid a

State to control the use of its own property for its own .

lawful ne purpose. ag’, Os ate oe

* The recstd shows that these plaintiffs for about three

months had been picketing the courthouse ‘and they had

» not been arrested because they picketed in space which did

_ not interfere with the normal use of courthouse facilities

by all citizens Alike, regardless of color or other considera-

tion. :

April eleventh, however, was another matter. The. Legis-

‘lature passed a law attempting to prescribe some, order-

to these activities, not really interfering with plaintiffs

even on courthouse grounds. so long as they did not inter-

fere with others. The record shows that these individuals,

SB AOR MET EPR ee aaa be

a |

though ‘‘frightened’’ as ‘they claimed, ‘deliberately came

to a contest of wills with the sheriff, who had lawful custody |

of the premises, who had a duty to enforce the statute, and

[63] who had a duty to see that they obeyed it.. Plaintiffs

knew what they: were doing,'they knew what the statute.

proscribed, but they went ahead. ie 7 :

Plaintiffs, in their very able and brilliantly written: brief,

argue that the addition of the word ‘‘unreasonably’’ to

the statute made it even more vague and indefinite, but we*

disagree. The word ‘‘unreasonable’’ seems to have been

well understood by the founders of the Republic when they .

used it in the Fourth Amendment, where it remains, and

is enforced, as it should be, to this: day. i

_ Plaintiffs also say that the action of City (not County)

authorities in permitting the use of the streets for school

parades and the like, a pragtice customarily enjoyed by the

community as a part of ordinary community activities, .par-

ticipated in by all races, constitutes selective enforcement

of the statute and thus invalidates it. We cannot agree

with this argument, Weare not here dealing with parades

‘carried Sy by common consent on the public streets.. We

here confront picketing on the courthouse grounds in such

manner as to interfere with the use of the courthouse by

other citizens who had an equal right to its use. |

We hold that under all the facts and circumstances of

‘this case the principles announced in Dombrowski have

not been brought into play, that injunctive or declaratory

relief as to future enforcement of the statute is not justified.

By way of epilogue, there are other important reasons,

in the exercise of judicial discretion in equity, for declining

injunctive or declaratory relief in this case. The plaintiffs

allege that they were picketing the courthouse grounds for

[64-67] the purpose of obtaining the right to vote and to

encourage. others to. do so. Since this controversy arose, °

the people of Mississippi, pursuant to Resolutions of the

Legislature, iri the summer of 1965, went’ to the polls and

overwhelmingly amended the State Constitution to elimi-

- nate all literacy tests for. voting, except the ability to read

and write. By the Voting Rights Act of 1965, Congress

eliminated the use of any literacy test in the State of Mis-

Sissippi during the next five yeafs. Federal Registrars

were provided. In South Carolina v. Katzenbach, the Su-

preme Court upheld the validity of this federal legislation.

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The right of any Mississippi citizen, of lawful age ‘and not —S

a convict of felony, to vote is now beyond all. controversy

or ‘unrest. Picketing to obtain the vote or to gpoourage eet

others to do so is a thig of the past.

This opinion. shall constitute our Findings of Fact and

Conclusions of Law as provided by Rule 52(a) of the Fed-

- eral Rules of Civil Procedure, 28 U.S.C.

‘An Order may be submitted — the’ Complaint.

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PAE PLP GOO Re E086 Pm

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* [68] — * [ Filed December 24, 1966

Cox, District Judge, Specially Concurring :

This class action involves forty-eight persons who were

being prosecuted for the violation of § 2318.5 Mississippi

Code 1942, captioned: ‘‘Picketing which. interferes with

ingress and egress to and from public buildings, premises,

streets and sidewalks.’’ The body of the act makes it un-

lawful ‘‘for any person, singularly or in concert with others,

to engage in picketing or mass demonstrations, in such a

manner as to obstruct or unreasonably interfere-with free

ingress or egress to and from any public premise, state

property, county or municipal courthouses, city halls, office

buildings, jails or other public buildings or property owned

by the State of Mississippi, or any county or municipal

- government located therein, or with the transaction of pub-

lie business or administration of justice therein or thereon

conducted or so as to obstruct or -unreasonably interfere

with free use of public streets, sidewalks or other public

ways adjacent or contiguous thereto, ete.’’ These plain-

tiffs were charged in the state court in the language of the

statute with obstructing. the sidewalks adjacent to @he Rothe

‘county courthouse building of Forrest County, Mississippi -

and with blocking the entrances to such building by walking

along ‘such narrow walks so close together as to violate

[69] this statute. The plaintiffs’ lawyers say that this

statute is. vulnerable to the ‘‘void for vagueness’’ doctrine.

Significantly, not-one of the plaintiffs elected to testify

that he could not reasonably understand that his conduct

was proscribed by that act. It must be and is conclugively

presumed that if such had been the facts that at least’ one

of the plaintiffs would have so testified. This statute is

attended by one of the strongest known presumption as to

its validity. These plaintiffs well understood that which ,

_ was proscribed thereby and defiantly persisted in. igtior-

ing the request of the sheriff that they desist from walking ©

so close together and that they picket in a lawful fashion.

A statute will not be invalidated as vague’ simply because ’

difficulty is found in determining whether certain marginal

offenses fall within their language. Umnited States v. Na-

tional Dairy?Products Corporation, 372 US 29, 83 S.Ct. 594.

' In Jordan v. DeGeorge, 341 US 223, 71 S.Ct. 703, this’ vague-

7 aes oe rm FELINE See PE FES I ~

, . 2

eee Se

2 a A a pee ; eee

ness doctrine was applied to the words ‘‘moral turpitude’’

involved in the Immigration Act of 1917 [8 U-S.C.A.

* §155(a)]. The Court said ‘‘impossible standards of ‘spe-

cifity are not required: United States v. Petrillo, 332 US

71 1, 67 S.Ct. 1538. The test is whether the language conveys a

j @ stifficiently definite warning as to the proscribed conduct ) a

when measured by common ,understanding and practices.

Connally v. General Construction Company, 269.US. 385,

46 S.Ct. 126.’’ That was not a criminal statute but the :

penalty.involved was deportation or banishment from the .

—~ @ country and the Court applied such doctrine thereto and

approved said enactment. In Boyce Motor Innes, Inc. v.

Uniied States, 342 US 337, 72 S.Ct. 329, 330, -it is said: ‘A

eriminal statute must be sifficiently definite to give notice

of the a ete conduct to one whe would avoid its perial- ©

ties, and to gtide the judge in its application and the law-

yer. in-defending one charged with its violation. But few

words possess the precision of mathematical. symbols, most -

[70] statutes must deal with untold and unforeseen varia-

}° tions in factual situations, and the practical necessities of

discharging the business of government inevitably limit

the specificity with which legislators can spell out prohibi-

tong: Consequently, no more than a reasonable degree of.

certainty can be demanded: Nor is it unfair to raquire that

one who deliberately goes perilously close xs n areaé of

proscribed conduct shail take the -_ that he may cross the

line.’’ -

In Samuel Roth v: United States of America, 354 US.

476, 77 S.Ct. 1304, there was involved the question as to the .

vagueness or not ‘of the Federal ‘Obscenity Statute appear-

ing as 18 U.S.C.A. § 1461. In affirming a conviction, the . ,

Court said that many decisions recognize that the terms

of obscenity statutes are not precise but said that lack of.

precision is not itself offensive to the requirements of due ~

process ; further saying: ‘‘The Constitution does not re-

. quire impossible standards; all that is required i is thatthe -

language conveys sufficiently definite warning as to the

- .proscribed conduct when measured by- common under-

standing and practices. United States v. Petrillo, supra.

These words applied according to the proper standard

- for. judging obscenity, already. discussed, give adequate

warning of - conduct proscribed and mark boundaries:

S o weg ® yr wir “

POSTON PE CRIT ARDS, LATTICE OT RSPON a RGA hs nen EN POREE RIT,

sufficiently distinct for judges and juries fairly to ad-

minister the law. That there may be marginal cases in -

which it is difficult to determine the side of the line on

which a.particular fact situation falls is no. sufficient rea-

son to hold the language too ambiguous to define a criminal

offense,”” citing many cases. %

There is nothing in this act or in its enforcement i in this

case which even remotely relates to impinging upon any

First Amendment rights. of these plaintiffs. Nobody —

doubted or questioned or denied the right of these plain-

- tiffs to walk or march or demonstrate as they wished with

banners containing protestations of their own choice. But

this-statute simply made picketing unlawful even for such

[71] purpose if it’ blocked the entrances and impeded or pre-.

vented the public its right. of ingress and’ egress to such

public building. That is all that is involved inthis case.

Judge Coleman has properly and correctly answered the

questions directed by the Supreme Court of the United

States to this Court on its remand of this case; and I con-

cur in that opinion in its entirety. |

a 54

2 . Ld ‘

; [72] Frxpine or Facts aNp Conciusi0N$ OF Law,

DECEMBER 24, 1966

Be ‘It Ranenteeed, that pursuant to an opinion and

consequent order from the Supreme Court of the United -

States in this case vacating the original judgment of this

Court, that this Court duly reconvened and heard arid con-

sidered testimony and evidence, :pro and con, in this case

and after sissies briefs of the parties in‘support of

a their contentions, the Court now makes its further findings

and conclusions by way of supplement to the findings and

conclusions herein dated July 10, 1964. ,

- Finding of Facts

The Court renews its former finding of facts, except as

herein modified and amended, after hearing oral testimony .

and receiving other and further evidence in this case.

House Bill 546 now appears as Chapter 343, Mississippi

- Laws 1964, effective April.8, 1964. This enactment simply

| “proscribed picketing or mass demonstrations which -ob-

~ structed or interfered with free i ingress and egress to and -

from county courthouses, or so as to obstruct ov interfere

with free use of public streets, sidewalks, or other public

ways-adjacent or contiguous thereto. 7

This Court finds the language of this statute to be so

clear and’so unambiguous as to constitute sufficient notice

to all persons of that action and conduct which is proscribed’

and made illegal by this act: It complies with every con-

- stitutional requirement of the vagueness doctrine set forth

[73] in the opinions in this case. All of these -plaintiffs

. had notice and actual knowledge of the fact that this law

_ forbade them to march together in such large numbers

and so close together as to make it impossible for, business *

visitors desiring to enter the county courthouse to do so.

The plaintiffs. deliberately and defiantly and intentionally

‘violated this law on the occasions in suit with the view

and for the purpose of testing its constitutional validity

under the circumstances.

’ This picketing actually commenced on January 22, 1964,

when some two hundred pickets circled the court house

and continued to do so from Monday through Saturday

every week. It was taxpaying time when all taxpayers

ROTC eS CORON

> eh hd | ee tee ™ -” nae aE:

. re v% | | | ~ . | . ° . 55

had to: go aii the courthouse and pay their license insti and

ad valorem taxes and other important seasonal business

which had to be done at the courthouse. The sheriff, as :

custodian of the courthouse, had worked with the city .

police in Hattiesburg to contain the pickets and prevent 7

an incident. The courthouse fronted northerly on Main

Street in Hattiesburg. The sheriff told the plaintiffs that

they could picket as much or as long as they pleased at

the northeast corner of the courthouse fronting on North

Main and Eaton Street, in the area shown in red on the

plat in evidence. But they were requested not to walk in

such numbers or so close together as to block entrances

. to the ground floor of the building. - The blue area on the .

‘ plat is immediately in front of the main steps to the main -

* - floor of the building. This plan afforded the plaintiffs

: a strip of. city sidewalk on North: Main Street and a strip

eis - of sidewalk on Eaton Street for demonstration purposes

in the most conspicuous area of the premises. Prior to

April 10, 1964, the plaintiffs cooperated with the authorities

and did not block any entrances.and were not arrested. But _

on April 10 and again on April 11, 1964 and finally on May

18, 1964, the plaintiffs in a group of thirty-five or forty |

[74] people appeared in this area and walked around this

space forming an almost complete circle in such a manner .

as to block the entrance to the Forrest County Cooperative

Extension Service on the ground floor and the entrance.

to the county\ court section of the building, all as shown

in yellow 6n the plat in evidence. An employee, trying

to make her way from the County Cooperative Extension

Service. to the County Agent’s office on the main floor

of the building by way of the front. main steps, had to get

in this line as it passed and march with them until they |

arrived at a point opposite the front ‘steps where she left

them. The waJks on ‘the inner area were approximately

three feet wide as shown on the drawing. The sheriff-

- and county attorney were unable to negotiate passage in

the opposite direction along these walks by this circle of ©

humanity. without having to step off the walk.on to the

_ grass. This‘is positively not a case where we have as few

as ten pickets marching in this area as suggested in the

dissent. That sort of condition may have existed at some

time prior to the arrest, when the testimony shows that

% : j

PRE Ee 2 2 gts ne oy PAE SAREE PE ERIE TET RES sian aia eal ENE REAR MIE BE FEROS CII RCTS ae

—

they sometime had as few as “three, eight, nine or ten

pickets,’” but the incident in suit was provoked by thirty- —

five to forty people walking as close together as they could .

on these narrow walks on the courthouse lawn immediately

in front of these important entrances. Even prior to the ~

incident in suit, one of the plaintiffs said that it was not

unusual ,to have more than’ twenty pickets in the line.

Their picketing and demonstratimg never bothered the

Officials except when they marched so close together on

these narrow walks as to interfere with and obstruct- the

entrances to this county courthouse.: The sheriff and the

' county attorney tried to reason with the plaintiffs and ex-

plained to them that they were blocking these entrances"

and they were requested to widen the gap between the

marchers, but such requests were ignored and violated

with impunity. There is no evidence or inference in this

[75] not understand this law, or that they were’ being

' prosecuted with the view or for the purpose-of intimidating

-or harassing them. On the contrary, this.evidence and

testimony conclusively shows that these plaintiffs were

being prosecuted in good faith for their willful violation

of this statute because they were actually obstructing

the passageways which afforded ingress .and egress to

this. county. courthouse. They were engaged in’ peaceful -

picketing prior to April 10, 1964 and were not. arrested,

but on and after April 10, 1964; these plaintiffs were not

engaged in peaceful. picketing, but were. deliberately -and-

defiantly engaged in conduct which ‘is validly proscribed

ay Chapter 343, Mississippi Laws 1964.

' These plaintiffs are not in ‘this court with clean hands

under, the circumstances stated. The complaint in its en-

tirety is without merit and should be dismissed.

Conclusions of Law

‘ The Court coneludes as a matter of law that it has full

jurisdiction of the parties and the subject matter, and has

the full power-and authority to do all that is herein ‘done.

The Court further concludes as a matter of law that

House Bill 546 (appearing as’Chapter 343), Mississippi

Laws 1964 is valid on its face and is valid as applied and

DL LORIE LE AE ALIS BOLE ELIE IEEE ING ELIE RELI ELIE ELLE POLL EH

has not ‘passed upon the Siestitiationsd validity of that act,

but that is not a bar under present decisions to a determina-

tion of the validity of such act, by this Court. It is note-

worthy that these plaintiffs removed these prosecutions to

this Court, alleging invalidity of this act on its face and

as applied, and that this Court remanded these cases to

the state court. The United States Court of Appeals for %

'. the Fifth Circuit in Ben Hartfield, et al v. State of Missis- |

sippi, et al, (5CA) 363 F.2d 869, affirmed said order of .

remand.

‘This: Court makes no determination as ‘to the guilt or

[76] innocence of the plaintiffs of the charges against them

for their action on these occasions, but does hold that there

is abundant probable cause for such prosecutions and guilt

of the’ plaintiffs of such charges. Said criminal actions

instituted by the defendants against the plaintiffs, were

instituted and aré maintained in perfect good faith and.

should not be enjoined or restrained by this Court.

~The complaint is thus without merit and should be.

dismissed: with prejudice at plaintiff’s cost. An order ac-

cordingly will be entered. , :

Dec. 23, 1966. -

Jas. P. Coleman; United States Circuit Judge. Har-

old Cox, United States District Judge.

"+. Henorable Richard T. Rives, United States Circuit J hones |

dissenting.

“ii Filed December 24, 1966

Rives, Circuit Judge, Dissenting: |

_. This suit was initially’ brought on. April 13, 1964, and |

through appropriate amendments became a class.action by.

plaintiffs against the defendants, under Rule 23. Fed.R.Civ.

P. Plaintiffs sought a declaratory judgment that the Mis-

sissippi Anti-Picketing statute was unconstitutional. The

Mississippi statute is section 2318.5, Mississippi Code Anno-

-.-tatéd 1942 (1964 sup.).?

Plaintiffs also sought injunctive relief restraining the

future enforcement of section 2318.5, as well as the abate-

ment of prosecutions already instituted under the Bill. _

*.. Hereafter section 2318.5. . The bracketed portions were

added by amendment to the statute on July 9, 1964. Sec-:.

tion 2318.5 (House Bill No. 546, as amended) reads as

follows :

concert with others, to engage ‘in picketing or mass

demonstrations in such a manner as to obstruct or

unreasonably] interfere with free ingress or egress

to and from any public premises, State property, county

or municipal courthouses, city halls, office buildings,

jails, or other public buildings or property owned by

.. the ‘State of Mississippi or any county or municipal

- government located therein or with the transaction of

public business or administration of justice therein or

thereon conducted or so as to obstruct or [unreason-. -

ably] interfere with free use of public streets, side-

walks or other public ways adjacent or contiguous ~

thereto.

‘*2. Any person guilty of violating this act shall be

deemed guilty of-a misdemeanor and, upon. conviction

thereof, shall be fined not more than Five Hundred

» Dollars ($500.00), or imprisoned in jail not more than

six (6) months, or both such fine and imprisonment.

_ 3, This act shall not be construed to affect any

suit or. prosecution now pending’ in any court.

‘4. This act shall take effect and be in force - from

and after its —— ie

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three-judge district Sait helenae of Circuit Judge Rives '

and District Judges Mize (now deceased) and Cox was con-

vened. The suit was submitted on conflicting affidavits, no

live testimony having been taken.

On July 11, 1964 the complaint was dismissed by the

court. Cameron ve Johnson, 244 F.Supp. 846 (S.D. Miss.

_ . 1964). Judge Mize writing for the court held that plaintiffs

. : . were not entitled to an injunction even if the statute were -

— _- unconstitutional, because plaintiffs had ‘‘a plain, adequate

and complete remedy at law’’ in the state courts which had

not been ‘‘exhausted.’’ 244 F. Supp. at 851, 853.

Judge Mize:found that it was ‘‘not necessary to pass on

the constitutionality of this Act [section 2318.5), even

_ though there can-be slight doubt as to its constitutionality”’

. and, therefore, held that ‘fit is the duty of the Federal

a3 Court to-abstain and permit the plaintiffs to pursue their

, State remedies.’’ 244 F.Supp. at 851, 855-856.

| I dissented, stating (244 F.Supp. at 858): ‘‘In my opin-

‘ion, the’ statute is so clearly unconstitutional that this case

ie hardly one ‘required * *.* to be heard and determined . -

f [78] by a district court of three judges,’ ’’? and concluded |

‘that ‘‘the statute under attack is clearly unconstitutional, .

and the plaintiffs are just as clearly entitled to have its

enforcement enjoined.’’ 244 F.Supp. at 858. —

On appeal the Supreme Court vacated the judgment and

remanded the case to ‘the district court, setting two tasks:

First, whether under the federal anti-injunction statute an

injunction against presently pending criminal cases is

barred in this case. Second, whether under the criteria of

Dombrowski v. Pfister, 380 U. S. 479 (1965), an injunction

should issue against present, as well as future, enforcement

of the statute. Justices Black, Harlan, White and Stewart

dissented. Cameron Vv. Johnson, decided June 7, 1965, 381

US. 741- ‘

Subsequent to the district ewuirt's opinion, all of the state

prosecutions involved in ‘this case were removed under 28 °

_UIS.C.A. § 1443 to the federal courts. Folléwing the opin-

ion of the Supreme Court in City of Greenwood v. Peacock,

384 U.S. 808 (1966), these cases were remanded to om

courts. « Hartfield, et al. v. Mississippi, 363.F.2d 869 (5

1966). Judge Mize having died, Circuit Judge Coleman-was

designated as the third member of the ee) panel.

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‘ A full sitiiigees hearing was held and the case is now ripe”

for determination. : pie

— I

“The threshold question is whether the federal anti-injune-

tion statute, 28 U. §.C.A. § 2283 (1965 ed.),? bars the grant-

ing of injunctive relief in a suit brought under the civil

rights statute, 42 U.S:C.A. § 1983 (1964 ed. )- 3 Section 2283

reads as follows:

[79] “fA court of the United States may not grant an

* injunction to stay proceedings in a State court except —

- as expressly authorized by Act of Congress, or where

necessary in aid of its jurisdiction, or to protect or

effectuate its judgments.’’ (Emphasis added.)

The plaintiffs contend that § 2283 does not proscribe an in--

junction in the present case, because such relief is ‘‘ex- .

pressly authorized hy’’ § 1983. Section 1983 reads as fol-

lows:

‘‘Hvery person who, under color of any stable, ordi-

nance, regulation, custem, or usage, of any State or .

- Territory, subjects, or causes to be subjected, any citi- -

_ zen of the United States or other person within the

- jurisdiction thereof to the deprivation of any rights,

oe privileges, or immunities secured by the. Constitution

~~ and laws, shall be liable to the party injured in an ac-

tion at law, suit in equity, or other proper iets

for redress.’’ (Emphasis added.) ~

Since § 1983’ authorizes a “‘suit in equity,’’ the argument:

' is that it also authorizes injunctive relief. The authorities

on this problem are in conflict. I would hold that under the

circumstances of this case, if the allegations are proved,

§ 1983 is an express exception to § 2283. 7

In Cooper v. Hutchinson, 184 F.2d 119 (3 Cir. 1950), the

Third Circuit held that § 1983 constituted an express au-

thorization for.the granting of an injunction against state

( court proceedings within the meaning of ¢ 2283.4 Unfor-

? Hereafter: § 2283.

* Hereafter § 1983.__

* Followed in Tribune ates Publishing Co. v. Thomas, i

153 F. Supp. 486 (W.D. Pa. 1957). |

PER NO OT ‘es sheen FS PRON IEG ma +. ND a» 4 .

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° ’ .

61.

asinie. the Third Cirenit merely stated its conclusion

without illuminating its rationale.

In Smith y. Village of Lansing, 241 F.2d 856 7 Cir..

1957),5 and Goss v. Illinois, 312 F. 2d 257 (7 Cir. 1963), the

‘ Seventh Circuit, without considering Cooper, held that sec-

tion 1983 was not an express exception to section 2283.

"Neither of these expressions by the Seventh Circuit took |

time to exhaustively examine the problem or propound a ~

_ [80] carefully considered rationale. The Sixth: Circuit,

also without considering Cooper or explaining its reason-

ing, reached a result consistent with’ the-Seventh Circuit.”

Sexton v. Barry, 233 F.2d 220 (6 Cir. 1956). 3 ae

The circuit court first to consider this question at length |

was the Fourth Circuit, sitting en bane, Bains v. City of

Danville, 337 F.2d 519 (4 Cir. 1964). In determining

that section 1983 . was not an express exception to section —

2283, the Fourth Circuit reasoned that if section 1983

was read as an express exception to section 2283 there

would ‘be little room left in which section 2283 might

a Followed - in Progress Dev. Comav, Mitchell, 182 F.

‘Supp. 618 (N.D. Ill. 1960). See also Island Steamship, Ine.

v. Glennon, 178 F. Supp. 292 (D. Mass. 1959).

* Judge Mize in Chaffee v. Johrison, 229 F. Supp. 445 |

(S.D. Miss. 1964) adopted the position of the Seventh Cir-

cuit. In affirming Judge Mize’s disposition of the litigation |

on its facts, the Fifth Circuit declined to meet the issue

raised by section 1983. “ Chaffee v. J nant, 352 F.2d 514.

(5 Cir. 1965) (per curiam).

In Moss v. Hornig, 314 F. 2d 89 (2 Cir.’ 1963), the Second

. Circuit had before it the issue of whether section 1983 au-

thorized the enjoining of State court criminal proceedings.

Judge Lumbard, speaking for the Court, held that it did.

That case involved the question of whether Connecticut’s

alleged selective enforcement of its Sunday closing laws

violated fie State defendant’s equal protection of the laws.

. After considering the doctrine of comity, the Second Circuit

affirmed the trial court’s conclusion that the State defendant

failed to submit adequate®roof to warrant*an injunction.

Oddly, section 2283 was never considered or mentioned.

have an effective field of operation. The Fourth Circuit

explained its holding as follows (337 F. 2d 579 at 589) :

ae Creation’ of ‘a general equity jurisdiction is in no.

sense antipathetic to statutory or judicially recognized

limitations. upon its exercise.. Effective’ removal of

‘a cause of action. from a state court to a federal court,

is incompatible with further proceedings.in the state

‘eourt, but there is no incompatibility between a gen-

erally created equity jurisdiction and’ particularized

_ . Timitations which restrict a chancellor’s power or

- @efine the limits of his-discretion..

- The anti-junction statute can have effective appli-

cation only with respect to those matters over which

If there is no jurisdiction to grant an. injunction of

any kind, there is no room for the operation of a

- narrow statutory prohibition of injunctions having —

a specified effect. If every grant of general equity

jurisdiction created an exception to the anti-injunction

statute, the statute would be meaningless.”’

In Dilworth v. Riner, 343 F. 24226 (5 Cir. 1965), Judge -

Bell speaking for the Fifth Circuit recognized the cogency

of the Bains rationale as a general proposition. - Dilworth

_- held that. section 203(a)-(c) of the 1964 Civil Rights

- Act, 42 U.S.C.A. § 200a-3(a), was an express exception to

section 2283. Section 203 specifically grants the power to

issue ‘‘a permanent or temporary injunction, restraining

order, or other order,’’? where ‘certain rights have been

[81] invaded. This specific grant is in stark contrast to the

“broad general subject matter encompassed i in section 1983.

However, to be an express exception a statute need not

be as clear a.grant as. section 203 of the 1964 Civil Rights

Act, nor need a statute even mention the term injunction.

Porter v. Dicken, 328 U.S. 252 (1946) ; Amalgamated Cloth-

ing Workers v. Richmond, 348 U.S. 511 (1955); Dilworth

y..Rimer, 343 F.2d 226 (5 Cir. 1965) (dictum); Beal v.

Waltz, 309 F.2d.721 (5 Cir. 1962). See also Toucey Vv.

New York Life Insurance Co., 314 U.S. 118 (1941); Jack.

sonville Blow Pipe Co. v. Reconstruction Finance Corp.,

. 244 F.2d 394 a AS, Cir. 1957); T. Smith & Sem, Inc. v. we

sreewagy vg ORR DIR ee NEN FRO: GRE See Rate tars SAN Crag pene + . ’

t . = e eal

~ Giams, 275 F.2d 397 (5 Cir. 1960); Brown v. Wright, 137

F.2d 484 (4 Cir. 1943). The principles rationally extro-

- polated from.tlie cases creating express exceptions to the

prohibition of section 2283 derive content from the concrete ° -

situations which gave rise to them. Where a’ specific,

limited and ‘clearly delineated substantive right has been

conferred by Congress the courts have: found an express ~

exception to section 2283. The express exception is the .

necessary concomitant of the need to -vindicate: federally

created rights and is entirely consistent with the history

of section 2283. ; :

Section 2283 and -its predecessors date back to 1793

_ when Congress enacted an unqualified prohibition on injunc-

tions: ‘** * * nor shall a writ of injunction’ be granted~.

[by any. federal court] to stay proceedings in any court.

of a state *:* *.”?® Section 5 of the Act of March 2, 1793;:

1 Stat. 335: The scope of this original statute and its

successors has been restricted by judicial constrvetion;

interestingly, ‘whenever Congress has acted it has always

-acted to further restrict the scope of the anti-injunction’

[82] statute. As the Third Circuit said in In re Standard

Gas & Electric Co., 139 F.2d 149 (3 Cir. 1943) at 152,

‘The. purpose of. its [2283’s] prohibition was ‘to prevent

federal courts, when exercising jurisdiction coordinate

with state courts, from drawing to themselves the right

to determine adverse claims.”” |

Section 2283 is aimed primarily at allowing state courts

to proceed to the determination of issues involving state

R _ law which might be drawn to’ the federal courts. - The

RARER Sores Ce ase SEER REE IM Seen ener ae

allegations in the instant case show that this Court is

asked to vindicate primarily federal rights protected

by a specific federal statute. The charge is that section

* The history of section 2283 is discussed at length by the

Supreme Court in Toucey v. New York Life Ynsurance Co.,

314 U.S. 118 (1941). See also Amalgamated Clothing

Workers of America v. Richmond Brothers, 348 U.S. 511

(1955) ; Jacksonville Blow Pipe Co. v. Reconstruction Fi-

nance Corp., 244 F. 2d 394 (5 Cir. 1957); T. Smith & Son,.

Ine. v. Williams, 275 F. 2d 397 (5 Cir. 1960).

wi i is Dial . Se ~ ser

2318.5.as applied here is a subterfuge for denying plaintiffs

- their federally protected rights as they relate to voting. _

The activity engaged in “by plaintiffs today has specific

. . federal protection. 42 U.S.C.A. §1973i(b) states:®

‘‘(b) No person, whether acting under color of law

‘ or otherwise, shall intimidate, threaten, or coerce, or

attempt to intimidate, threaten, or coerce any person

‘for voting or attempting to vote, or intimidate,

or coerce any person for. urging or aiding any person

to vote. or attempt to vote, or intimidate, threaten,

or coerce any person for exercising any powers or

duties under section 1973a(a), 1973d, _— 1973g,

* 1973h, or —7 of this title.’’

The allegation is that the purpose of section 2318.5 and

.. these arrests and prosecutions under that section is to

harass and punish the plaintiffs for their participation

in the civil rights movement and to deter them, and others

similarly situated, from exercising rights of free speech

and assembly guaranteed by the Federal Constitution and

the right to urge or aid others. to attempt to register and _

vote guaranteed by federal statute. If this allegation is ~

- 9A similar prohibition i is found in 42 U.S.C.A. § 1971(b).

-. United States v. Bruce, 353 F.2d 474 (5 Cir. 1965). Unlike

42 U.S.C.A. § 1971(b), section 1973i(b) does not require that

the prohibited acts be racially motivated; nor does section —

1973i(b) require proof of a ‘‘purpose’”’ to interfere as does:

section 1971(b). ‘‘[N]o subjective purpose or intent need

be shown.’’ House Rep. No. 439 to acconipany H.R. 6400,

June 1, 1965. 10 U.S. Code Cong. & Adm. News 2532.. While

section 1973i(b) had not been. enacted when this suit was

first instituted, this is an equity suit and the law must be

applied. as it now stands. If further prosecution under

section 2318.5 would be inconsistent with section 1973i(b),

it must be abated. Section 1971(b) which prohibits the same

_ behavior was enacted before section 2318.5. If the allega-

tions alleged here are true, further prosecution under sec-

tion 2318.5 would be inconsistent with section - 1971 (b).

United States v. — supra.

one PAR RAE ER PE eg AE QTE * Bt ee 6 on ei

. - . . , = "

_ 65

true, plaintiffs are not asking the federal courts to enjoin ~

the proper application of state law in state courts, but

are merely asking that federal rights be vindicated eo

federal courts which are primarily responsible for pro-

[83] tecting those rights..° Under these circumstances, sec-

tion 1983 is and should be an express exception to section

2283. Cox v. Louisiana (II), 348 F.2d 750 (5 Cir. 1965). ™

_ In the second Coz case, the question was whether, under

conditions parallel to those alleged here, the litigation -

could be removed from a state to a federal court. Judge

Wisdom, speaking for the Court, addressed himself to

the question of whether an injunction against the prose-

cution could issue. He stated (348 F.2d 750 at 752):

_ “A civil complaint asserting sueh an-abuse ofthe

prosecutorial function would state a claim under the

Civil Rights Act, 42 U.S.C..§ 1983 and justify injune-

tive relief. - Dombrowski v. Pfister, 1965, 380 U.S.

479, 85 S.Ct. 1116, 14 L.Ed.2d 22. This is not a Douglas

v. City of Jeannette, Stefanelli, or Cleary v. Bolger

situation. Here the State, through the Parish District

_ Attorney, under the guise of protecting the administra-

tion of justice, is dittaneine the Nation on.a national

policy expressed in: the Constitution, carried out by

Congress, and validated by the Supreme Court: ~

“The general principle, basic to American Federal-

_ ism, that United States courts usually should refrain

from interfering with state courts’ enforcing’ local

laws is unassailable. But. the sharp edge of the

Supremacy Clause cuts across all-such generalizations.

- McNeese v. Board of Education, 373 U.S. 668 ( 1963)

at 671. ° ‘

“To avoid confusion, the first case, Cox v. Louisiana, 379

U.S. 559 (1965), in which the’ Supreme Court reversed a °

conviction litigated through the State courts, will be referred

. to as Cox (I). The second case, Cox v. Louisiana, 348 F’. 2d

750 (5 Cir. 1965), in which the Fifth Circuit held that -

attempts to prosecute Reverend Cox subsequent to Cox (I)

could be removed to federal court, will be referred to as

Cox (II). , ee:

When a State, under the pretext of preserving law

and order uses local laws, valid on their face to harass

and punish citizens for the exercise of their. consti-

. tutional rights or federally protected statutory rights,

the general principle must yield to the en the

federal system is imperiled.’’

| Accord, Hillegas v. Sams, 349 F.2d 859 (5 Cir. 1965)

(separate opinion of Judge Brown). In McNeese-v. Board

of Education, 373-U:S. 668 Bis at 671, 672, the wr rene

_ Court said:

‘¢That .is the statute [1983] that was ieatioui in

-° ~ Monroe v. Pape, supra [365 U.S. 167, 81 S.Ct. 473,

5 L. Ed. 2d 492]; and we reviewed its history at length

in that case. 365 U.S. at 171, et seq. [81 S. Ct., at

475, et seq.]. The purposes were severalfold—to

. override certain kinds of state laws, to provide a

remedy where state law was inadequate, ‘to provide

a federal remedy where the state remedy, though

- adequate in theory, was not available in practice’ (id., -

(174 81 S. Ct; 477]), and to provide a remedy in the

federal courts supplementary to any remedy any

State might have. Id. 180-183 [81 8. Ct. 480-482].

‘‘We. would defeat those purposes if we held that

assertion of a federal claim in a federal court must

await an attempt to vindicate the same claim: in a

state court. The First Congress created federal courts’

as the chief—though not always the exclusive—tri- .

bunals for enforcement of federal rights. * * *’’

_ [84] The great danger in federal intervention in state

criminal litigation is that it will cause that litigation to

be conducted piecemeal. Thus, federal courts have declined —

to intervene to suppress alleged illegally seized evidence

The defendant must await federal review through certiorari

or by habeas corpus. In the instant case, if the plaintiffs

* succeed, then the litigation, present and future, will be

brought to an end. As Judge Wisdom said in.the Cox (II)

case, 348 F. 2d 750-755: ‘* [T]here i is no federal invasion of

states’ rights. Instead, there is rightful interposition under

the Supremacy Clause of the or to” — the

7 OER aE SITE ee ee ee ee Re ee. ee Ee ales . ~s ns a6 aes

individual citizen against state invasion of federal

rights.’’** In City of Greenwood v. Peacock, 384 U.S. 808

(1966), the Supreme Court held that prosecutions such

as those here involved are not removable under 28 U.S.C.A.

§ 1443. In so holding, the Supreme Court recognized that

‘ under ‘‘extraordinary circumstances,’’ where the state

prosecutions are themselves used to intimidate. persons

in the exercise of their constitutional and federal statutory .

rights, federal injunctions are available to protect these

precious rights. City of Greenwood v. Peacock, 384 U.S.

- 808 (1966), at 829.

While the Bains case may be correct as a aveseed

principle, its reasoning cannot be logically applied to

cases involving specific rights clearly and specifically pro- .

tected under a federal statute. If the allegations. made-—

here are true, the officials of the State of Mississippi by

bringing or further continuing the prosecutions here

involved have committed a federal crime.’ Would it not

be absurd to say that the. public officials here involved

may be fined $5,000 and imprisoned for 5 years by. a federal

court,"* yet that same federal came may not enjoin their

2 Tn TR v. Board of Bisention, 373 U.S. 668 (1963)

at 674, n. 6, the Supreme Court said:

**As well stated by Judge Murrah in Stieteton v.

. Mitchell, 60 F. Supp. 51, 55, appeal dismissed pursuant

- to stipulation, 326 U.S. 690: ‘We yet like to believe

under the Federal Constitution are always a proper

subject for adjudication, and that we have not the

_ right to decline the exercise of that jurisdiction simply

because the rights asserted may be igen mania in some

other forum.’ ”’ a -

1842 U.S.C.A. §1973j(a) and (c); ef. United States v.

Guest, 383 U.S. 745 (1966). (The provisions of 18 U.S.C.A.

§ 241 impose punishments of up to 10 years in prison for

those who conspire to deprive any citizen of the ‘‘free exer-

' elise or enjoyment of any right or privilege secured to him

by the Constitution or laws of the United States’’ by -caus-

ing the arrest of Negroes by means of false reports that

such ive vail committed criminal acts.

Srey: eter area egos Sh ea ERT LF TSO TE TT OOS RR - negra

commission of that crime and thus prevent their effecting :

[84a] the very injury the statute is designed to prevent? —

Moreover, section 2283 is not a jurisdictional statute,

and in spitérof its absolute language does not prevent a

federal court from. issuing an injunction against a state

’ Section 2283 is a statutory adoption of the ‘doctrine of

comity. Judge Wisdom, writing. for. the Fifth’. Circuit

in Southern California Petroleum Corp. v. vk 273

F.2d 715 (5 Cir. _1960) at 718-19, said:

“Section 2283 is essentially a rule of comity, and

the demand here that a federal court interfere with

state court proceedings is directed to the discretion.of

the federal court. This discretion should be exercised

in the light of the historical reluctance of federal courts

to interfere with state — proceedings”’ as :

~ The Fourth Circuit in Baines v. City of Danville, supra,

337 F. 2d. at 593, was peqpesipes this distinction when

_ it said:

“ «Since the ‘statute was fathered by the estnaliiine

of comity, it has been held that the statute should be .

read in the light of those principles and, though ~-

absolute in its terms, is inapplicable in. extraordinary

cases in which an injunction against state court pro-

ceedings is the only means of avoiding grave and

irreparable injury. In our view, the congressional

command ought to be ignored only in the face of the

most compelling reasons, but we have certainly been |

told by the Supreme Court that in those circumstances

it may be disregarded, for its. parentage discloses that

it was not intended to be as‘absolute as it sounds.’’

14 Section 2823 is sometimes referred to as denying ‘‘jur-

isdiction to a federal court to enjoin proceedings in a State

court except in unusual circumstances.’’ Williams v. Pueri- .

foy, 316 F. 2d 774 (5 Cir. 1963) (per curiam) at 775. The

doctrine is clearly one of comity and the principles of

comity determine when ‘‘unusual circumstances’’ exist.

Accord: Hulett v. a, 250 F. bician: 208 (M.D. Ala.

1966) (three-judge district court); Zellner v. Lingo, 218 — “a

‘F. Supp. 513 (M.D. Ala: 1963), aff’d, 334 F:2d 620 (5 Cir.

1964) ; Feldman v. Pennroad Corn:, 60 F. Supp. 716 (D. Del.

1945), aff’d, 155 F.2d-733 (3 Cir. 1946), cert. den., 329 U.S. -

08 (1947). -See also cases collected Baines v. City of

‘Danville, 337 F. 2d 579 (4 Cir. 1964) at 591, n.10. - -

‘ The fact that section 2283 is only a comity statute and

does not prevent the issuance of an injunction was recog-

nized’ by Judge ‘Mize in this case. Cameron ‘v. Johnson,

244 F.Supp. 846 (S.D. Miss. 1964 at 851. Therefore, we

[85] turn to the only real’issue in this case, do the facts

as proved require the granting of the relief requested?

The demonstrations: which resulted in the arrests under

section 2318.5 had their origin during January of 1964.

For several days prior to January 22 the Council: of Fed:

erated Organizations * and others’ distributed leaflets.

These leaflets declared that January 22 would be ‘‘freedom

day.’’? A rally was to be held which included picketing

the Forrest County Court House * in a protest against

discrimination in voter registration. |

On January 22 seve *«! hundred persons, Negroes and

whites, appeared at the Court House, as did. reporters’ -

from the incal and national press. The County sheriff —

designated a ‘*march route’? which the demonstrators

Subsequent to January 22 the picketing of the Court

House continued. The area designated by the’ Sheriff

‘consisted of three sides, the east, north and west side

5 Hereafter COFO. .

. 1 Reverend Cameron was director of: the Hattiesburg

Ministers’ Project for the National Council of Churches.

of Christ.

7 Hereafter Court House.

18 Trial record (hereafter Tr.) 271, 220, 230.

at Tr. 220-21, 230, 271.

RTs twat aaa oo ne ae nner BERN ant ART RNIN a

of the ‘court house.’’ ‘The demonstrators during this early.

period sang, chanted, prayed and preached.” —

“To facilitate access to the Court House, the Sheriff ~

. blocked off-a small area to the right of the main entrance

to the Court House where the picketers were allowed to

continue. their activities: The axis of this area of march

was an irregularly shaped grassy: plot with 4a flag pole

on’ it.** It is difficult to verbalize the scene, so a scale

drawing is reproduced here for convenience :

: Tr, 221, 230-31, 271- 72.

21Tr. 77, 178, 222, 231, 272.

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[87] Picketing continued into April of 1964. All agree

that. from April 1 until April 11 pickets were present

every day except Sundays. From April until April 9 the

number varied from ’7 to 20.”

‘Unlike the earlier mass picketing where hundreds were

present, the picketing in April was entirely orderly and

quiet. The pickets did not sing, chant, pray or preach. ‘‘The

only noise’’ they ‘‘made was an occasional comment to one

another in normal conversation.’? They in no way made

any noise that would disturb the transaetion of business

within the Court House. *

The pickets marched steadily but slowly. They made

it a point to be courteous to persons desiring to pass them

and never blocked anyone from passing them. ** This was

the situation that persisted until April 9.

On April 9 a small group was picketing the Court

ouse. As- was their usual practice, they started ‘‘to

disband the picket’’ line around four o’clock. Several police

officers arrived and ‘‘began to break down the wooden

- barriers’? which had previously delineated their line of

march. Sheriff Gray accompanied by. Mr. Dukes, the County

Prosecuting Attorney, and Deputy oenianac snenentiet the

group asking for their attention. A or. Of section 2318.5,

which had just been passed by the MiSsissippi legislature

and had just been réceived in Hattiesburg, -was read to

them. The Sheriff then gave them five minutes, in which

to disperse, which they did.*

On the morning of April 10, they assembled ‘shortly |

after 9 A.M. at the COFO headquarters. They lined up

approximately. 10 feet apart and walked = the Court

House. ** .

- [88] The pickets arrived ‘at the corner across from. the

Court House at about 10 A.M. where they found a normal.

flow of traffic. They ‘‘waited to cross.the street until the.

policeman had halted traffic as he did for all pedestrians.’’

2 Tr, 85, 72, 122, 224, 235, 273. Connor testified that at

times it reached as many'as 38 or 39. Tr. 232. —

* Tr. 39-40, 107. — :

ST 1963

Tr. 34, 77, 109-110, 273-77.

Tr, 83-84..

They ‘‘crossed with other pedestrians and then began to

march in the area previously designated for picketing in

a very orderly fashion.’’ Because of the previous warning

_ they were ‘‘more frightened”? than before and ‘‘for that

YTeason’”’ they ‘were more orderly ‘and — than pre-

viously. 77

This was the lataeat number of pickets that had par-

ticipated in the marching that week. They numbered

about 40.** After a short time, Sheriff Gray stopped the

pickets. The testimony here is in dispute. The defend-

ants’ witnesses : testified that Sheriff Gray warned the

pickets that they were violating section 2318.5, and when

they failed to disperse he placed them under arrest.

Plaintiffs’ witnesses testified that they were placed under

arrest without warning or that, in any event, if there

‘was a warning they did not hear it. °°

This large group, was then placed in jail for obstructing

free ingress to or- egress from ‘the Court House.** At

the time of the arrest the area immediately adjacent top

the picketing area was.eongested with spectators. There

were 20 or 25 people standing on the main steps of the

Court House and a ‘‘tight knot of people’’ were ‘‘ blocking

the sidewalk.’’ None of these persons were arrested or -

asked to move on. Since-they were neither ‘‘picketing”’

nor engaging in ‘‘mass Gemonstrations,” they were not

‘ subject to section 2318.5.*? .

On the afternoon of April 10, Mary Williams and nine

other persons were arrested for violating section 2318.5 — -

Tr, 37, 111-12, 147, 171, 279.

28 Estimates of how-many picketers participated in the

April 10: morning demonstration ranged from. 28 to 43.

Tr. 36, 51, 90, 182, 201, 279, 320,-334. At no time were they

warned that a large group could not picket the Court House.

_ Tr. 50. | ‘

2° Tr, 276-77, 282, 335. piverend Brown also thought that

Sheriff Gray might have given them one minute to disperse

before arresting them. Tr. 56.

* Tr. .39,' 113-14, 143-45, 172, 226.

81 No one made any attempt to ™ down or resist arrest.

. Tr.-39.

Tr, 37- 38, 78- 80, 83, Ani, 129, 130.31, 136. .

te ee ee eee ee Se eta Cnt a er ec

’ [89] by peacefully ind quietly. siihiliass the area around

the flag pole. On April 11 nine more pickets were arrested.

Between April 11 and May 17 spasmodic picketing con-

tinued without incident. On May 18.a' group of nine dem-

-> onstrators began picketing in the area around the flag |

pole. They were ordered to cease obstructing ingress to.

and egress from the Court House. Two of the pickets

‘ then left and the other seven weré arrested. **. After May

18 picketing was not resumed. *

The defendants contend that section 2318.5 is consti-

tutional on its face and that it was properly applied SO as

to protect the normal transaction of business in the Court

House. The plaintiffs contend that section 2318.5 is uncon-

stitutional on its face and was clearly unconstitutionally

applied. |

I would conclude that an inspection of the record in

this case clearly shows that section 2318.5 was unconsti-

tutionally applied. Moreover, the application of the statute

in this ‘case illustrates how vague the statute really is and

compels the conclusion that it is unconstitutional on its

face.

The main, thrust of the defendants’ argument is that

the pickets obstructed the entrance to the County Court

Room, designated as ‘‘B”’ on the drawing, and the entrance

to the Home Demonstration Office, designated as ‘‘A’’ on

the drawing. I will treat the Home Demonstration Office

first.

The Home Demonstration Office is a: small office with

only one entrance. It has no inside entrance to the interior

of the Court House. Mrs. Pearl Burkett is the Home

Demonstration Agent. She leaves her. office and goes to

. . 88 Jr, 153, 154-55, 158-159, 199, 227; 301, 305. See affidavit

of Sheriff Gray,.p. 1. There appears to be some confusion

between the arrests made on May 18 and those made on

April 11. Sheriff Gray’s affidavit shows 7 persons were

’ arrested on May 18 after 2 persons left rather than be

~ arrested. Mr. Wells indicated that similar events tran-

_ spired on April 11 leading to the arrest of 7 persons. Tr. -

199. )

"Tr, 204-05, 211. See. also Tr. 192.

vs anablchdias Paoabidendeadaptomal adie diein nidiiaaea sie eaten

= . -*

County Agent’s office about four or five times each, day. *

To get there, she leaves hér office and proceeds along the

_{90] walk.to the main steps of the Court House and pro-

_ ceeds up those steps to the second floor. The sidewalk at

one point narrows to as little as 3.8 feet.

On the morning .of April 10 during the picketing, Mrs.

Burkett found it necessary to go to the County Agent’s:

Office. She testified (Tr. 317) : uy started the regular route

and they were so close together that I had to wait for

just a moment to get in line and I fell in line with them

and started weaving back and forth until I reached the

- front ‘steps and then dropped out of the line.’’ Her testi-

mony is, of course, the only real testimony of obstruction

contained anywhere in the record.** While the walkway

is wide enough at most points. for her to walk. past the

a pickets, for about six feet it is only 3.8 feet wide. To be

comfortable one would most likely have to walk single file

in line, one person behind another, at that point. Thus, she

had to weave back and forth by falling ‘‘in line with them”

for a few steps. They were not discourteous; she was not.

bumped or molested; they were peaceful and orderly. *

Whatever “obstruct”? may mean, here, clearly Mrs. Bur-

kett was not blocked or prevented ‘from making her sojourn

to the County Agent’s Office. Nor is there a single shred

of evidence that the pickets were unwilling to let persons

pass at anytime before or during the demonstration.

In the past the pickets had seen persons come out of

the main steps to the Court House and pass them and ~™

the Home Demonstration Office on their way to the parking

area behind the Court House.** The pickets were never

told that they blocked the Home Demonstration Office

door. One witness recalled Mrs. Burkett passing them on

the way into her. office on several mornings. She would

35 Tr, 315.

36 At the time of the arrests no one in the vicinity sought

to enter the Court House and no one was actually obstructed

from entering it on business. Tr. 39. See also:Tr. 107.

37 Hxactly how far apart the pickets were is not clear.

One witness thought it was 3 to 4 feet. Tr. 125. Another

testified it was 6 to 10 feet. Tr. 84, 91. °

$8 Tr. 32-33, 74.

[91] greet them ‘‘cordially.’’ * Another picket recalled: at

least three persons ‘‘who had easy. access to that door —

[‘‘A’’] who walked by me on the way to business in that ~

particular office.’ 4° These earlier instances are of contin-

uing importance since Mr. Dukes testified that had the

law been in effect, the earlier picketing would. have violated

it. 41

The problem of blockhike the datveines to the County

Court Room is even clearer. Reverend Brown, like the

other witnesses for the plaintiffs, testified ‘that the entrance _

‘to the County Court Room was never blocked.‘ The -

defense presents an appealing picture as to the blocking

of entrance ‘‘B’’. Mr. Selby Bowling, President of-the

Forrest County Board of Supervisors, was attracted by

‘curiosity as much as anything else’’ to the steps of the

Court House on the morning of April 10th, where he

watched the arrest of the demonstrators who he described

as a ‘‘nuisance.’’** The reason entrance ‘‘B’’ must be kept .

open is, according to Mr. Bowling, that ‘‘there are a lot

of elderly people who use that and catch the elevator to

go to the second floor.’’ This use. of the ground floor

elevator, in his ‘‘opinion,’’ was prevented by the pickets. *

_ Of course, the Court House is symmetrical and there is an

entrance to the County Court Rooni, identical to the one

marked ‘‘B’’, on the opposite side of the Court House

steps, which entrance is marked ‘‘R”’ in the drawing, p. 11,

supra. This éntrance was in no way affected-by the picket-

ing: Surely. we cannot silence a peaceful group in the

‘ orderly exercise of their freedom of speech just because

they pass in front of one of several entrances to a court

_ house. * Here, entrance ‘‘R’’ was available, or the main’

mat. ee ,

“Tr, 108, 123.

i Dy, 292-93.

‘42 Tr, 19-20, 80, 32, 126- 127; see in addition, Tr. 14, 107-08,

123, ° |

481, 327.

_ “Tr, 330, 331.

‘5 As Reverend Brown put it, ‘‘we couldn a possibly be

blocking because of all the entrances to ‘this ss ay

Tr. 43.

2d TYRES nea + AY Oa RI 5 SP RELY NII ci le dane eee

entrance; or even the back entrance from the parking lot.

[92] The only evidence in this record of this blockage

of entrance is the testimony of Mr. Dukes, who testified

that, prior to the arrests on the morning cf April 10, he

' tested the obstruction by attempting to walk against the

; °° eurrent of the line of pickets. He said he could not.* I

do not find this testimony sufficient to overcome the weight

of all the other testimony contained in this record. |

more evident when we examine the further arrests made

on the afternoon of April 10, on April 11, arid on May 18,

not one of which groups exceeded 10 persons.*’ These

pickets were arrested because they. walked so closely

- together that no one could pass between them, thus they

obstructed ingress to and egress from the Court House. *

Picture 10 persons walking very closely together, which

would oceupy’a space of about 16 to 20 feet. “Now picture d

this group at the point where I- have marked ‘‘T’’ on

the drawing, just above and to the left of the flag’ pole.

If they were there, the entire remainder of their route

would be left open both in front and in back. Can these

_ people logically be arrested for obstructing points ‘‘B”’ and -

“A? when the majority of their time in walking- about

the flag pole will leave the walkways totally unobstructed?

I think not. *

_. To illustrate, take the group arrested on the afternoon

of April 10. Mrs. Mary Williams went to the Court House

with a group of nine other persons, ranging in age up to

18 or 21. The 10 of them then proceeded to picket around

the flag pole. Mrs. Williams testified (Tr. 157) :

**Q. Did anybody try. to go in or out of the court house

while you all were there?

‘0 =e: 981,

. “See n. 34, supra, and accompanying text.

48'Tr, 284-85; see affidavit of Sheriff ay.

‘ 4° The distance from point ‘‘T”’ to the corner is well over -

48 feet, and the distance from the corner to where the

pickets. ‘would again enter the walkway is over 16 feet. The .

idea that while walking this 60 some odd:feet these 10

_ pickets blocked entrances ‘‘A”’ and ‘‘B”’ is totally.absurd.

— —"

a nae

‘‘A. No, they didn’t, wasn’t no one there to enter

[93] They were arrested for ilstenainss ingress to and

egress from the Court House under section 2318.5.

With these facts in mind, I think the law on this subject

- clearly compels the conélusion that section 2318.5 and its

application in this case are unconstitutional. This case

is strikingly similar to Cox v. Louisiana (I), 379 U.S. 536

(1965), where the Supreme Court was called upon to con-

sider. the constitutionality of a statute forbidding the

- obstructing of public passages. ** ‘There was no doubt in

Cox (I) that the sidewalk across from the Court House

‘‘was obstructed, and thus, as so construed, appellant

violated the statute. »? 379 U. ‘St 553. The Court rejected

the idea ‘‘that the First and Fourteenth Amendments afford

the same kind of freedom to those who would communicate

ideas by conduct such as patrolling, marching, and picket-

ing on streets and highways, as these amendments afford

to those who communicate Meas by. pure speech.’’ 379

U. S. at oS. N onetheless, the statute in question was held

Tke operative fact that sail the statute unconstitu-

tiona] was the overly-broad reach that allowed city officials

to choose which demonstrations would be permitted. 379

US. at 557. Cf. Ashton v. Kentucky, 384 U. S. 195 (1966),

5° See ale Tr. 156.

a “Obstructing Public 5 enn

| “‘No person: shall wilfully obstruct the free, convenient

“and normal use of any public sidewalk, street, highway,

bridge; alley, road, or other passageway, or the entrance,

corridor or passage of any public building, structure, water-

craft or ferry, by impeding, hindering, stifling, retarding

or restraining traffic or passage thereon or therein. 3

‘‘Providing however nothing herein contained shall apply -

to a bona fide legitimate labor organization or to any of

its legal activities such as picketing, ldwful assembly or

concerted activity in the interest of its members for the

purpose of accomplishing or securing more favorable wage

standards, hours of employment and working conditions. 4

La.Rev.Stat. § 14:100.1 (Cum. Supp. 1962).

a nae te eee ate sae heat clin meteet ak abide \ errs eseieat ai 6 ere * —— idee ie emia 2) ee ee ee. =< a x

“80

‘ and cases there cited..In the instant case, the same condi-

tion prevails. A single picket could be’viewed as obstruct-

ing.ingress and egress because for an instant he blocked

entrance ‘‘A’’ or ‘‘B’’ to the Court House. Such an appli-

cation of. section 2318.5 is no more unlikely than that 10

persons would be so charged when they could only block

free and unfettered access to ‘‘A’’ or ‘‘B”’ for an instant

and leave it unblocked for. substantial periods. 62 These.

arrests’ were made at a time when not a single person

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