Appellants Brief — Allee v. Medrano

IN THE

October Term, 1972

NO. 72-1125

A. Y. ALLEE, ET AL,

Appellants

V.

:-- FRANCISCO MEDRANO, ET AL,

3 Appellees

ON DIRECT APPEAL FROM THE UNITED

STATES THREE-JUDGE DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BRIEF FOR THE APPELLANTS

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant

JOE B. DIBRELL

Assistant Attorney General

LANG A. BAKER

Assistant Attorney General

GILBERT J. PENA

Assistant Attorney General

-

Attorneys for Appellants

P.O. Box 12548, Capitol Station

Austin, Texas 78711

SIA SL 1 SO 0 NN aS Rn a

el

INDEX

PAGE

OPINION BELOW ..........--ceeceeeeeceeeeees 1

JURISDICTION ..... 00.000 0cccccceeeeveeeeeee. 2

STATUTES INVOLVED ..........00.000e00eee es 3

QUESTIONS PRESENTED ..........---0000e000- 6

STATEMENT OF THECASE .........--.0000000- 7

SUMMARY OF THE ARGUMENT ............ 0-5. 17

ARGUMENT AND AUTHORITIES ..........------ 18

CONCLUSION... .....-2ccececceceeeeeueeeees 41

CERTIFICATE OF SERVICE ...........--.00000- 43

ee -

iq

‘

4

7

$

PP ANAT Ss ME ERE CNN RIE IIo

CITATIONS

CASES PAGE

American Federation of Labor v. Swing,

$12 U.S. 321 (1941) ..... Sabi be reese 28

Bakery and Pastry Drivers and Helpers Local

802 v. Wohl, 315 U.S. 769, 62 S. Ct. 816..... 21

Ballas Egg Products Company, Inc. v. Meat

Cutters, 160 N.E.2d (Ohio Ct.Com.Pls.

1959) .......00. eee 24

Blackwell v. State, 18 S.W.676 ..... eee 34

Brisco v. State, (1961), 341 S.W.2d 432.......... 35

Building Service Employees International

Union Local 262 v. Gazzam, 339 U.S.

day (0 le (OW nna ee aren eee gee eens ee 21, 36

Cameron v. Johnson, 390 U.S. 617 (1968) 7, 24, 25, 38, 41

Carpenters and Joiners Union, Ete v.

Ritter’s Cafe, 315 U.S. 722, 62

iO; Oe «| a ee 21,25

Chaplinsky v. State of New Hampshire

BIG TS. 060 (1942) 5x eopee ons acascenwas 32

Construction and General Labor Union v.

Stephenson, (Tex.Sup. 1950) 225

BOW 2 D6 oes a 5 ee es we bene 36

A RR CAT RMT AT SOON Bo

CITATIONS—Continued

CASES PAGE

Cox v. Louisiana, 379 U.S. 559, at 564 ....... 23,39

Dallas General Drivers v. Wamix,

295 S.W.2d 873, 881 (1956) ........... - 27

Davis v. Francois, 395 F.2d 731

(Sth Cir: 1968) os 22 s0.0eeress este sees 22

Dombrowski v. Pfister, 380 U.S. 479

(9965) go wees a con eee ec eeecr reese es 7, 38, 41

Florida Lime and Avacado Growers, Inc.

v. Jacobson, 362 U.S. 73 (1960) ........ 2

Follis v. State, 40 S.W. 277 ..... (beeen eens 34

Geissler v. Coussoulis, 424 S.W.2d 709

(Tex.Civ.App. San Antonio, 1967 writ

WP dMT-6.) han oe cee ste nes eee wew ses 21,25

Gibony v. Empire Storage and Ice Co.,

336 U.S. 490, 69 S.Ct. 684 ...........-. 21

Harris v. N.A.A.C.P., 360 U.S. 167 (1959) ..... 41

Hughes, et al v. Superior Court of California,

339 U.S. 460 (1950) .. 2... ee ee eee 36

International Brotherhood of Teamsters v.

Vogt, 354 U.S. 284, 293 (1957)....... . .29, 30, 31

Bree

ip snRNA UR a AR TAI MIA inl ae eo cen i LS

ee ae

ee ee

CITATIONS—Continued

CASES

International Union of Operating Engineers

¥. Gox. 219 S.W.20 161, TO cnc kscwcexas

Johnson v. State, (1961), 341 S.W.2d 434 .......

Jones v. State, (1962), 355 S.W.2d 727 ..4......

Kovacs v. Copper, 336 U.S. 77 (1948) ..........

Luter v. State, 22S.W. 140 ..................

Milkwagon Drivers Union, ete. v.

Meadowmoore Dairies, 312 U.S.

GED S925 oe betwee peer e ee esawess

Ness Produce Co. v. Short, 263 F.Supp. 586

(D.C. Or. 1966), affirmed at 385 U.S.

537 (1967) 02. eee e eee ence eens

Poulos v. State of New Hampshire, 345

U.S. 395 (1953) 2... eee eee eee ee eee

Rice & Holman v. United Electric Workers,

65 A.2d 638 (New Jersey Superior Ct. 1949). .

Standard Appliances v. Korman, 111 N.Y.S.2d

783, 786 (New York S.Ct. 1952) ..........

Sternfair Corporation v. Moving Pictures

Operators, 139 N.Y.S.2d 145, 150

CNGW TOF DCU. 1999) yc ceeccs eee sera.

~iv—

21

35

23

24.

24

CITATIONS—Continued

CASES PAGE

Tarrytown Road Restaurant, Inc. v. Hotel

and Restaurant Employers, 115 N.Y.S.2d

626, 631 (New York S.Ct. 1952) ......... 24

Teamsters, Local 309 v. Hanke, 339

U.S. 470, 475 (1950) cee u odssstasce oe Ze

Texas v. Payton, 390 F.2d 261, 270

(Sth Cir. 1908) 3 eee cc cena oe ween sex 4i

Thornhill v. Alabama, 310 U.S/88,

i [de Oger Gs * (ee 21, 22, 26, 28

Tucker v. State, (1961), 341 S.W.2d 433 ... Lean 35

Walker v. Brimingham, 388 U.S. 307, 319 (1967) 40

Williams v. United States, 341 U.S. 97,

TOG-4O) (19S): oes s oe se ces cee ees 33

Youngdahl v. Rainfair, Inc., 355 U.S.

SN TSO 99S) ov ceese ese veseeses .s PA

Younger v. Harris, 401 U.S. 37

(VOTE) sane ee ceee sss ey eeee ene rae es 7, 38, 39

OTHER AUTHORITIES Page

UNITED STATES CONSTITUTION

First Amendment ............-.----+-+-

to

cae |

to

~l

Fourteenth Amendment..........----+--

-—-VvV—

a re rn 8 ET SIE a a

eR Rs AN ti A LEI Ni AIR MOO ao

eA eR baa ONG inde Zeal ws

a en a ee

OTHER AUTHORITIES—Continued

PAGE

STATUTES AND RULES

18 U.S.C. §242 0... cece cece eee e cence ees 33

18 U.S.C. 8371 2... cece ce eee cece cece eens 33

28 U.S.C. §1253 .. eee e cece cece eee ee ees 2

28 U.S.C. 81843 oo. c cece cece cece eee eens 2

_ WUS.C. §2101(ab) ..-.. eee eee eee eee eee 2

28 U.S.C. §2201 oo. c cece cece cece cece ees D

98 U.S.C. §2202 .. 0. eee cece ccc e eee ees 2

28 U.S.C. §2281 2. cece ccc cece cece eens 2

28 U.S.C. §2284 .. 0. cece cece cece eee ees 2

28 U.S.C. §2285 .. 0. cece cece eee eee ee eees 2

42 U.S.C. §1983, 1985 ........... 20 ce eee eee 2

Art. 5154d, V.C.'S. ..... 2,3, 11, 15, 17, 18, 19, 20,

22, 23

Section] ........ 3, 7, 18, 19, 20, 24, 25, 41

Art. 5154f, V.C.S. ........ 2, 3, 25, 26, 27, 28, 31

SecuON . <.<44c% oxnoeeees eres 4, 7,17, 41

Section 2°...

Section 8 ...

Art. 5207a, V.C.S.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

Tex.Pen.Code, Art.

—vii—

PAGE

cecal sees eheoen aes 4, 7,17, 41

(Meneses Rhema eee 27

cen we wi poceeeeeese 36

Me cea Ria ne eeues 15, 32

ASD 66 x0 2, 3,6, 7, 11, 13,

| 15, 17, 33, 34, 41

449 ...:..11,13, 15, 33, 34, 35

ee ee eee 11,15

BST «set mes sues acuass 1]

AG cee dusnwnse ee sees 11.15

| ne 15

ee ee 12

(err 2,3,5,9,15,17

482 2, 3,6, 7.17, 31, 41

TOA osx x cen eeenee den 17

Oe Ne oe ae

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

NO. 72-1125

A. Y. ALLEE, ET AL,

Appellants

Vv.

FRANCISCO MEDRANO, ET AL,

Appellees

ON DIRECT APPEAL FROM THE UNITED

STATES THREE-JUDGE DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BRIEF FOR THE APPELLANTS

OPINION BELOW

The opinion of the Three-Judge Court for the Southern

District of Texas is reported at 347 F.Supp. 605 (1972). A

copy of said opinion is printed in the Jurisdictional

Statement filed by Appellant at page 33.

JURISDICTION

This suit was brought under the provisions of Title 28,

United States Code, Sections 1343, 2201, 2202, 2281 and

2285 and Title 42, United States Code, Sections 1983 and

. 1985; and the First and Fourteenth Amendments to the

Constitution of the United States in the United States

District Court for the Southern District of Texas, seeking

declaratory and injunctive relief in an attack on the

constitutionality of certain state statutes, and an injunc- »

tion was sought restraining the officers and officials from

enforcing these statutes against Appellees and their class.

The complaint also alleged that the Appellants, as state

officials acting under color of state law, conspired and

deprived Appellees of their civil rights, privileges and

immunities protected by the laws and Constitution of the

United States. A Three-Judge District Court was formed to

hear this cause as provided for by 28 U.S.C. Section 2284.

Final judgment of the Court was entered on December 4,

1972, which judgment held that part of Article 5154d of

Vernon's Civil Statutes of the State of Texas and part of

Article 5154f of Vernon’s Civil Statutes of the State of

Texas and portions of Articles 474, 482, and 439 of the

Texas Penal Code were unconstitutional and granted an

injunction against its enforcement by state officers, their

successors, agents and employees. Notice of Appeal was

mailed to that Court on December 18, 1972.

The jurisdiction of the Supreme Court to review the

decision of the Three-Judge Court is conferred by 28

U.S.C. Sections 1253, 2101(a)(b) and 2281. The following

cases sustained the jurisdiction of the Supreme Court to

review the judgment of this case on direct appeal: Florida

Lime and Avacado Growers, Inc. v. Jacobson, 362 U.S. 7:

(1960); Ness Produce Co. v. Short, 263 F.Supp. 586 (D.C.

a le te ee ee eh oe an ee

RIN TE

Or. 1966), affirmed at 385 U.S. 537 (1967). Probable

jurisdiction was noted by the court on May 7, 1973.

STATUTES INVOLVED

As noted above, the Three-Judge District Court below

held that part of Article 5154d of Vernon’s Civil Statutes

of the State of Texas and part of Article 5154f of

Vernon’s Civil Statutes of the State of Texas, and portions

of Articles 474, 482, and 439 of the Texas Penal Code

unconstitutional and granted an injunction against its

enforcement by state officers.

The court declared and adjudged that Section I of

Article 5154d of Vernon’s Civil Statutes of the State of

Texas, to the extent quoted below, was null and void. The

said portion of the statute reads as follows:

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

or in concert with others, to engage in picketing or

any form of picketing activity that shall constitute

mass picketing as herein defined.

‘**Mass picketing,’ as that term is used herein, shall

mean any form of picketing in which:

“1. There are more than two (2) pickets at any

time within either fifty (50) feet of any entrance to

the premises being picketed, or within fifty (50) feet

of any other picket or pickets.

“2. Pickets constitute or form any character of

obstacle to the free ingress to and egress from any

entrance to any premises being picketed or to any

other premises, either by obstructing said free ingress

or egress by their persons or by the placing of vehicles

or other physical obstructions.”

_3-

SEN TOL TA ALP ROS OS. REBT AREA TARE WPI at Np FOUN ES — —

¥ iataieentiie ne

The Court declared and adjudged that Sections 1 and 2

of Article 5154f of Vernon’s Civil Statutes of the State of

Texas, to the extent quoted below, were null and void.

The said portion of the statute reads as follows:

en

“Section 1. It shall be unlawful for any person or

persons, or association of persons, or any labor union,

incorporated or unincorporated, or the members or

agents thereof, acting singly or in concert with others,

to establish, call, participate in, aid or abet a

secondary strike, or secondary picketing, or a sec-

ondary boycott, as those terms are defined herein.

“Section 2. eee

“b. ‘Seeondary strike’ shall mean a temporary

stoppage of work by the concerted action of two or

more employees of an employer where no labor |

dispute exists between the employer and such em-

ployees, and where such temporary stoppage results

from a labor dispute to which such two or more

employees are not parties.

& & &

““d. The term ‘secondary picketing’ shall mean the act

of establishing a picket or pickets at or near the

premises of any employer where no labor dispute, as

that term is defined in this Act, exists between such

employer and his employees.

“e. The term ‘secondary boycott’ shall include any

combination, plan, agreement or compact entered

into or any concerted action by two or more persons

to cause injury or damage to any person, firm or

corporation for whom they are not employees, by

“(1) Withholding patronage, labor or other bene-

ficial business intercourse from such person, firm or

corporation; or

‘(2) Picketing such person, firm or corporation; or

%e& & &

(4) Instigating or formenting a strike against such

person, firm or corporation; oF

(5) Interfering with or attempting to prevent the

free flow of commerce; or

(6) By any other means causing or attempting to

cause an employer with whom they have a labor

dispute to inflict any damage or injury to an

employer who is not a party to such labor dispute.”

%& & &

“h. The term ‘labor dispute’ is limited to and

means any controversy between an employer and the

majority of his employees concerning wages, hours or

conditions of employment; provided that if any of

the employees are members of a labor union, the

controversy between such employer and a majority of

the employees belonging to such union, concerning

wages, hours or conditions of employment, shall be

deemed, as to the employee members only of such

union, a labor dispute within the meaning of this

Act.”

The Court declared and adjudged the following portion

of Article 474 of the Texas Penal Code to be null and void

and restrained its enforcement. Article 474 has since been

amended, but it read in pertinent part at the time of the

PRES IER AN LTO LEE LER ION STI STILE MOTT LEN SRI IR EOE IR REPRE

e ns 5 aaa! ig

events from which this litigation arose, as follows:

“Whoever shall go into or near any public place,

or... near any private house, and shall use loud and

vociferous, or obscene, vulgar or indecent language or

swear or curse, or yell or shriek ...in a manner

calculated to disturb the person or persons present at

Such place or house, shall be punished by a fine not

exceeding Two Hundred Dollars ($200).”

The Court declared and adjudged that Article 482 of the

Texas Penal Code was null and void. Such statutes reads as

follows:

‘‘Any person who shall in the presence of hearing

of another curse or abuse such person, or use any

violently abusive language to such person concerning

him or any of his female relatives, under the

circumstances reasonably calculated to provoke a

breach of the peace, shall be fined not more than one

hundred dollars.”

The Court declared and adjudged that Article 439 of the

Texas Penal Code was null and void. The said statute reads

as follows:

‘An ‘unlawful assembly’ is the meeting of three or

more persons with intent to aid each other by

violence or in any other manner either to commit an

offense or illegally to deprive any person of any right

or to disturb him in the enjoyment thereof.”

QUESTIONS PRESENTED

The f6llowing questions are presented by this appeal:

fw

1. Whether, as held by the court below, Section 1 of

Article 5154d of Vernon’s Civil Statutes of the State of

Texas is unconstitutional because of impermissible broad-

ness?

2. Whether, as held by the court below, Sections | and ©

9 of Article 5154f of Vernon’s Civil Statutes of the State ,

of Texas is unconstitutional because of impermissible

broadness?

3. Whether, as held by the court below, Article 482 of

the Texas Penal Code is inconstitutional because of

impermissible broadness?

4. Whether, as held by the court below, Article 439 of

the Texas Penal Code is unconstitutional because of

impermissible broadness?

5. Whether the court below can properly order injunc-

tive relief, as it did, against peace officers of the Texas

Department of Public Safety and the law enforcement

officials of Starr County in this case where prosecutions

were pending, and whether the court improperly inter-

preted Dombrowski v. Pfister, 380 U.S. 479 (1965),

Cameron v. Johnson, 390 U.S. 617 (1968), Younger v.

Harris, 401 U.S. 37 (1971), and its companion cases, in

reaching the conclusion that injunctive relief would lie in

the present case?

STATEMENT OF THE CASE

The Valley Farm Workers Organizing Committee, AFL-

CIO, instituted a strike from June, 1966 until June 1967,

in an attempt to encourage the predominately Mexican-

American farm workers in Starr County to join with the

_7—

AE ERIE LE EO Be PORE ERIM AO SEAT RYE NY Pal ORT REOPEN

union in organizing and forming a union. In pursuit of

their directives, and according to union president Domingo

Arredondo, the picketing occurred every day (except

Sunday) until its further continuance was enjoined by the

state district court. (Tr. Vol. I p. 273). In pursuit of their

objectives, strikes were called; and picket lines, rallies, and

demonstrations were employed to enlist non-union labor-

ers in the common cause. By an unexplained coincidence,

vandalism and destruction of property began in June of

1966 in Starr County. Sugar was poured in gas tanks, flats

on tractors were caused by man-made objects, and theft of

property was on the increase. (Tr. Vol. II p. 534).

The evidence in this cause does not in any manner

reflect that the Appellants and other officials of the State

of Texas have engaged in a massive conspiracy to deny

Appellees their constitutionally protected right of free

speech and to deprive them of rights, privileges, or

immunities secured by the Constitution and laws of the

United States. Appellees sought to dramatize some twenty

or so incidents that occurred over a period of one year into

an alleged plot. Because of the fear of a breakdown of the

law enforcement, to a great extent because of a large

number of strikers and relatively small number of law

enforcement officers, Starr County officials made a strong

appeal that the Texas Rangers be sent to preserve order

and prevent bloodshed. (Tr. Vol. II p. 421).

It is contended and we do state that early in the summer

of 1966, Deputy Sheriff Raul Pena assisted in the

distribution of “La Verdad”, a newspaper which was

anti-union in nature. We do not attempt to excuse or

explain Mr. Pena’s conduct other than his statement that

he was attempting to help his friend, the publisher, Mr. De

La Paz. However, whether or not Pena was pro-union or

fa

anti-union would not have any bearing on the issues of

whether or not in truth and in fact Appellees were

violating the laws of the State of Texas.

On October 12, 1966, Appellee Chandler was arrested

and charged with violation of Penal Code, Article 474,

disturbing the peace. According to Deputy Sheriff Raul

Pena, a complaint had been received from one of the crew

leaders to the effect that pickets had been bothering them

and calling them names in the field. Pickets were using a

loud speaker system and using foul language addressed to

the workers in the field. (Tr. Vol. III p. 596). Pena ordered

the strikers to disperse. Appellee Chandler refused to leave

and charges of disturbing the peace were filed against him.

(Tr. Vol. IV p. 595).

On October 24, 1966, union president Domingo Arre-

dondo and others were arrested for obstructing the

International Bridge by sitting down and locking arms

across the bridge to prevent all traffic from going back and

forth across the international boundary. (Tr. Vol. I. p.

284). At the courthouse Domingo Arredondo and those

arrested were screaming and hollering in the courthouse

until Deputy Sheriff Ellert told them to stop hollering in

the courthouse. At that moment Domingo Arredondo

jumped close to the deputy’s ear and hollered as loud as he

could “viva la huelga”. At that moment the deputy shoved

Arredondo back against the wall and reached for his gun

although he did not pull out his gun. (Tr. Vol. III p. 690).

It is difficult to imagine law enforcement officers not

having the authority to control persons under arrest.

Deputy Ellert denies striking Arredondo. His version of the

incident reflects Arredondo clearly could have been

charged with violation of Article 474 V.A.P.C., disturbing

_g—

the peace, for yelling in the courthouse. It was not what he

said, but the manner in which he said it.

On November 7, 1966, twenty or twenty-five persons

were blocking the entrance to La Casita Farms, (Tr. Vol. II

p- 519). Jim Rochester, foreman of La Casita Farms, got a

radio call on the early hours of November 7, 1966, that

there was trouble at the gate of La Casita Farms and he

went to the gate and upon his arrival he saw a group of

people blocking the entrance to the farm. Several buses

full of workers were trying to get into the farm but were

unable to do so because the union people were blocking

the entrance. Rochester got in one of the buses and told

the people to move out of the way as he was going to drive

the bus through the gate. It was at this time that

Magdaleno Dimas, a union leader, hollered ‘you son-of-a-

bitch, you are not going to do that,” and jumped up into

the bus door. Dimas was forced to jump out of the bus and

hollered back at Rochester “you son-of-a-bitch, [ll get

you”. (Tr. Vol. II p. 521). Rochester then drove the bus

through the gate. Rochester was well aware of Dimas’

reputation for violence and considcred this threat to be of

a serious nature. (Tr. Vol. II p. 522).

On November 28, 1966, Appellees and other union

members and sympathizers held a rally on the grounds of

the Starr County Courthouse. They placed the union strike

flag to fly from the flag pole normally occupied by the flag

of the United States of America. No attempt was made to

obtain permission from the Sheriff's Office to use the

courthouse or to hang union flags from the courthouse

windows. No attempt was made by Appellees to secure

permission from the county officials for use of such public

property. In fact the activities of the Appellees indicate

that they were attempting to intimidate the Starr County

~10—

officials and to run matters as they pleased. This instance

reflects a total disregard for the public officials of Starr

County as well as its public buildings. (Tr. Vol. Ill p. 598).

On December 28, 1966, members of the union were

picketing at the entrance to La Casita Farms. Librado de la

Cruz, a union member, struck and grabbed Manuel Balli as

he was attempting to enter the main gate of La Casita

Farms. Deputy Sheriff Roberto Pena attempted to arrest

Librado de la Cruz for assault, but the crowd ganged up

around him and grabbed Deputy Pena and would not let

him go. Finally an agreement was made and Librado de la

Cruz drove his pickup to the Sheriff’s Office. (Tr. Vol Il

p. 666). Charges could have been leveled against those

present for unlawful assembly, Penal Code violations,

Article 439 and 449; for rioting; Articles 455, 457, 464;

for mass picketing under Article 5154d, Vernon’s Civil

Statutes. It might be well to point out to the Court that

Article 5154d also prohibits the interfering with ingress

and egress.

On January 26, 1967, five members of the union using a

loud speaker were soliciting employees of the Trophy

Farms to join the union. The five union sympathizers were

calling Augustine Lopez and Fredrico Pena and other

workers by using “the foulest words known to that

language in this area”. Both Augustine Lopez and Fredrico

Pena signed complaints. (Tr. Vol. I p. 78).

On January 26, 1967, five members of the union were

arrested for using obscene language directed at workers at

Trophy Farms. These five union members were placed in

jail and other union members gathered around outside the

jail in an evident attempt to intimindate the local law

enforcement officials. This harassment by the union

_ll-

members was done under the guise of holding a “‘prayer

meeting” at the jail. The union members were talking back

and forth to the prisoners in the jail on the third floor of

the courthouse and Deputy Sheriff Raul Pena ordered

them to disperse. This was in keeping with the require-

ments of Article 472 of the Texas Penal Code that a peace

officer should order persons present at an unlawful

assembly to disperse. Deputy Sheriff Pena said that he

asked them what they were doing there to which they

replied “we are praying, you son-of-a-bitch”. (Tr. Vol. III

p- 604). He then ordered them to disperse which they did

with the exception of Padilla and Drake. Since they

refused to leave they were placed under arrest. In any

event, a gathering at the jail after hours and unauthorized

contact with the prisoners by large group of noisy people

could certainly legally be dispersed.

On February 1, 1967, union member Orendain and

three other union members, together with two Catholic

priests, Father Smith and Father Killion gathered together

on La Casita property and called fifty or sixty workers

who were in La Casita fields “scabs” in spanish in

attempting to use a word that had “punch to it and an

edge to it”. They were arrested for disturbing the peace.

(Tr. Vol. If p. 503, Vol. IV p. 771).

On May 11, 1967, union member Ismael Diaz and

others were on their way to the Roma International bridge

to picket. The automobile driven by the union members

was stopped for traffic violations. In addition to driving

without a license, Diaz was speeding up and passing the

buses carrying the farm workers, and then slowing it down

so that the bus could not proceed. He was, in fact,

obstructing a public road. In this connection, he and all

the persons in the automobile could have been arrested for

~12—

BE POE ON CAE AIP NY BR NEES LITE BoP DATTA he OM ORO RRC NY

participating in this activity. (Tr. Vol. IV p. 901-905).

After leaving the Roma International bridge the union

sympathizers went to the Rio Grande City International

Bridge which consists of only two lanes, one lane entering

the bridge and the other leaving. There is not enough room

to stand in the road without blocking traffic. According to

the testimony of the Rangers, union members were

unlawfully assembled at the bridge in violation of Articles

439 and 449, attempting to stop traffic, but moved back

when ordered to do so and no charges were filed. (Tr. Vol.

IV. p 905-908).

On May 12, 1967, Eugene Nelson, a union leader went

to the Sheriff’s Office for the express purpose of intimi-

dating the Rangers and other law enforcement officers. He

asked to see that “son-of-a-bitch, Captain Allee” and then

stated “‘you tell that son-of-a-bitch that get man off my

man because there’s going to be some rangers killed”. (Tr.

' Vol. Ill p. 674). Both Constable Benavides and Deputy

Sheriff Ellert verified the fact that Nelson did make that

threat. (Tr. Vol. III p. 691). This was another example of

the strikers trying to intimidate law enforcement officers

either by force of numbers or by threats; however, the

Texas Rangers refused to be intimidated.

On May 17, 1967, Juan Vela was driving a truck load of

workers into a Trophy Farm when he was stopped by

picketers at the gate. After talking to the picketers they

told him it would be all right to go on in that day, but not

to come back the next day because they would not let him

in. (Tr. Vol. II p. 476). On the 18th they would not allow

him or his crew to enter. There were obscenities used

against him and his crew. Onas Brand, the farm manager of

the Trophy Farms, filed a complaint and the Texas

_13—

SPEIER TAR BRL LN HALE I SLOW ROA At

EK SHAN

Rangers made the arrests. Captain Allee said that pickets

were bunched up together and interfering with traffic and

interfering with free ingress and egress to Trophy Farm.

(See Answer to Plaintiffs’ Interrogatory No. 70).

The picketing was accompanied by destruction of

property of the Missouri Pacific Railroad. Although not a

party to this feud, the Missouri Pacific Railroad Company

suffered partial destruction of a bridge by arson, found

that objects had been placed on railroad tracks which

could derail trains, had rocks thrown at trains, and other

incidents which endangered the operation of the railroad

to such an extent that they found it necessary to keep a

number of special agents on hand to attempt to protect

railroad property and in addition to ask assistance from

the Texas Rangers in order to secure the safety of their

trains. (Tr. Vol. ILI p. 695-696).

On May 26, 1967, fourteen union sympathizers were

arrested in two groups at Mission, Texas. Mission, Texas, is

in another county approximately forty miles from the

scene of the other disruptions. The union members

attempted to picket and interfere with the operation of

the Missouri Pacific Railroad.

The record reflects that because of various acts of

sabatoge, Rangers were riding the trains from Rio Grande

City and that on occasions, a Ranger even accompanied a

railroad special agent ahead of the train on a small motor

car to see that there were no obstructions on the track

which might derail the train. (Tr. Vol. IV p. 809).

On May 26, 1967, the union planned to disrupt traffic

on the Missouri Pacific Railroads with the intent that none

of the produce being shipped from the Starr County area

ay

eile ete se bn, settee ee ee

- a a el

Ea

would be allowed to reach the market. This activity was

directed against the Missouri Pacific Railroad and one of

the main points of assembly was at Mission, Texas. The

Press had notice of the planned activity and were present.

Captain Allee stated that the picketers were standing on

the track itself so that the locomotive would have had to

run over them if they hadn’t moved. (Tr. Vol. IV p. 811).

Members of the union were blocking railroad tracks.

Some of the pickets had signs and some were without

signs. A large crowd of spectators had gathered. Arrests

were made by Texas Rangers at the request of railroad

special agents. (Tr. Vol. IV p. 815-895).

The purpose of the blocking of the Missouri Pacific train

was to keep the crew members from carrying on their

occupation or employment by refusing to let them operate

the train.

On May 31, 1967, there were pickets gathering on the

road by the Solis’ property at La Casita Farm. Pickets were

using a loud speaker and calling the workers “son-of-a-

bitch”, and “mother-f *. The testimony is uncon-

troverted that the workers in the fields had knives and the

situation was very explosive. Pickets were placed under

arrest and charged with violation of Article 5154d. (Tr.

Vol. IV p. 799). It might likewise be pointed out that this

statute in addition to being a mass picketing statute also

contains a section prohibiting insults and abuse, or obscene

or threatening language. In addition on this occasion,

participants could have been charged with violation of

Articles 439, 449, unlawful assembly; Article 474, dis-

turbing the peace; and Article 42, abusive language; Arti-

cles 455, 464, or 466 or the rioting statute.

~15—

On June 1, 1967, Magdaleno Dimas was seen on more

than one occasion in the vicinity of La Casita packing shed

with a .22 rifle. He had previously threatened “‘to get’’ Jim

Rochester, the manager of La Casita Farm, who was at the

shed. Rochester was apparently terrified because of the

reputation that Dimas had had for violence and demanded

police protection. He threatened to call Washington if he

could not get some relief from local state officers. (Tr.

Vol. II p. 526).

Dimas was a known murderer, had cut a boy’s throat

from one ear to another “for the fun of it” and spent the

year in jail for aggravated assault. He was accompanied by

Benito Rodriquez, who also had a long police record, and

was known by the officers to have committed crimes of

violence. (Tr. Vol. IV p. 825). The Rangers attempted to

obtain some assistance from the union in locating Dimas,

but Chandler and Alex Moreno refused to help, pretending

that they did not know the whereabouts of Dimas. The

Rangers left, waited down the street, and Chandler led

them directly to the hideout being used by Dimas. The

evidence is uncontradicted that when Dimas came outside

with Chandler he was still armed with a rifle, and

Chandler, when the Rangers turned on their car lights,

yelled to Dimas to throw his gun down. Dimas then ran

back into the house. (Tr. Vol. IV p. 823). There is no

denial that he is guilty of the crime with which he was

charged. Benito Rodriquez was also guilty as a principal in

accompanying Dimas in threatening and intimidating Jim

Rochester, the manager of La Casita Farms. Dimas was a

man of violence.

In making the arrests, Captain Allee admits hitting

Dimas over the head with a shotgun. It might be observed

that a less experienced officer would probably have shot

_16—

oo RTE eS Se Se tes Fe =

Ne = FOP AIL E PO TRIN ee a ee ee ee ee er ee ee Lees Ss

both Dimas and Rodriquez when Captain Allee found

them inside the house with their hands under a table. (Tr.

Vol. IV p. 827-828).

An examination of the above described incidents which

form the basis of the complaint filed by Appellees reflect

that the law enforcement officers and county officials have

acted in good faith and in great moderation and restraint.

Arrests occurred only when there was flagrant violations of

the law, usually based on complaints made by the farm

owners and in most instances, a lesser offense was charged,

although the activities of the Appellees would have

warranted more serious charges being filed. If more

appropriate charges should have been filed under other

statutes, we present that it was a mistake of judgment and

not coupled with any intent to destroy the union. In any

event, it is important to note that the Appellees flagrantly

violated the laws of the State of Texas on many, many

occasions. The officials involved, as well as the Texas

Rangers, were sworn to uphold the law as a part of their

official duties.

SUMMARY OF THE ARGUMENT

The court below incorrectly found that Article 5154d

of Vernon’s Civil Statutes of the State of Texas (pro-

hibiting “‘mass picketing”), Sections 1 and 2 of Article

5154f of Vernon’s Civil Statutes of the State of Texas,

(prohibiting “secondary picketing”, “secondary strikes”,

and “‘secondary boycotts”), as well as Articles 439, 474,

482. and 784 of the Texas Penal Code were unconstitu-

tional for overbreadth under the First and Fourteenth

Amendments of the Constitution of the United States.

The statutes involved in no way prohibit or restrict

_~17—

freedom of speech or petition. The statues involved seek to

regulate conduct utilized to further the ends of speech and

expression.

Appellants submit that injunctive relief was not proper

under the facts and circumstances as appear herein. It

should not be presumed that the state courts will not

accord Appellees their full federal and state constitutional

rights in state court trials. It must be presumed. that the

state courts will construe the various state statutes

involved and apply them with keeping with constitutional

principles, and the court below should have assumed that

the state courts would do so properly.

ARGUMENT AND AUTHORITIES

ARTICLE 5154d, SECTION 1 OF THE REVISED

CIVIL STATUTES OF TEXAS, DOES NOT VIO-

LATE THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION.

The State of Texas, through the Legislature, has enacted

statutes regulating labor. These are grouped together in

Title 83 of the Texas Civil Statutes, entitled Labor.

Chapter Two of that title contains provisions relating to

Labor Organizations, and sets forth their rights and

privileges, and limitations upon the activities they may

lawfully pursue. It is in this scheme of regulation of labor

organizations that the challenged mass picketing statute,

Article 5154d, Section 1, Vernon’s Annotated Civil Stat-

utes, is to be found. That statute is an exercise of the

State’s legitimate interest in regulating labor disputes, and

must be examined in light of that fact. Nothing could

confuse the issue more than to approach this statute with

_18—

Pe TA See ert , nee _

Sg CPLR AY ATR aC AD: -

allie i 2° ESS RRS gy SOE HO

= pr i i a a RG OS ES Sg

REA OS

the misconception that it applies to so-called “public-issue

picketing.”

Section 1 of Article 5154d prohibits “mass picketing”

as therein defined. It further provides:

“The term ‘picket’, as used in this Act, shall

include any person stationed by or acting for and in

behalf of any organization for the purpose of . . . ”

It is clear from the context of this statute in the chapter

on Labor Organizations, and from the other statutes of

that chapter, that the words “any organization” refer to

labor organizations. Just as other statutes in that chapter

regulate labor organizations (see, e.g. Article 5154d,

V.A.C.S.), the challenged provision is simply an additional

exercise of the State’s authority to regulate labor organiza-

tions. It is certainly no violation of the Fourteenth

Amendment’s Equal Protection Clause to enact statutes in

pursuit of this legitimate legislative purpose. The fact that

statutes regulating labor organizations do not address

picketing by civil rights organizations or student organiza-

tions or consumer organizations is no more a denial of

equal protection than the fact that statutes or regulations

governing television advertising do not govern magazine

advertising, or that statutes or regulations governing the

advertising of tobacco products do not govern advertising

of alcoholic beverages. Equal Protection does not require

that all regulation be prescribed in the most general of

terms: such a requirement would create a force in direct

opposition to the due process requirements that laws avoid

vagueness and overbreadth. What could be more vague and

broad than the prohibition of misleading labelling and

advertising, and yet what could be narrower in application

and subject to false claims of denial of equal protection

_19~—

than specific regulations thereunder applicable only to one

of several closely related industries or products. The

challenged statute is part of a system of regulation of labor

organizations, and the prohibition of mass picketing by

such organizations is the regulation of their conduct fully

within the police power of the State to regulate labor

organizations. That this statute regulating labor organiza-

tions does not address mass picketing by others is clearly

not a denial of equal protection.

ARTICLE 5154d, SECTION 1, OF THE REVISED

CIVIL STATUTES OF TEXAS, IS NOT UNCON.

STITUTIONAL BECAUSE OF IMPERMISSIBLE

BROADNESS.

Article 5154d, Section 1, prohibits mass picketing as a

practice available to labor organizations, and defines mass

picketing as follows:

‘**Mass picketing’, as that term is used herein, shall

mean any form of picketing in which:

1. There are more than two (2) pickets at any time

within either fifty (50) feet of any entrance to the

premises being picketed, or within fifty (50) feet of

any other picket or pickets.

2. Pickets constitute or form any character of

obstacle to the free ingress to and egress from any

entrance to any premises being picketed or to any

other premises, either by obstructing said free ingress

or egress by their persons or by the placing of vehicles

or other physical obstructions.”

Article 5154d prohibits “mass” picketing. It was de-

signed to prevent the massing of pickets and the regulation

_20—

ERLE TC A ie BE POS A

of picketing activities without prohibiting them. Pickets

were prevented from physically obstructing ingress and

egress to any premises, but were allowed to have sufficient

number, in the opinion of the Legislature, to convey the

message that the premises in question were being picketed

and the reasons for the dispute.

The State has long been recognized to have the right to

regulate picketing but not to prohibit it. See Thornhill v.

Alabama, 310 U.S. 88. 60 S.Ct. 736; Building Service

Employees International Union Local 262 v. Gazzam,.339

U.S. 532, 70 S.Ct. 784; Gibony v. Empire Storage and Ice

Co., 336 U.S. 490, 69 S.Ct. 684; Bakery and Pastry Drivers

and Helpers Local 802 v. Wohl, 315 U.S. 769, 62 S.Ct.

816; Carpenters and Joiners Union, Etc. v. Ritters Cafe,

315 U.S. 722, 62 S.Ct. 807; Milkwagon Drivers Union, etc.

v. Meadowmoore Dairies, 312 U.S. 61 S.Ct. 552; Inter-

national Union of Operating Engineers v. Cox, 219 S.W.2d

787 and Geissler v. Coussoulis, 424 S.W.2d 709. Constitu-

tional guarantees of freedom of speech do not grant an

unabridged license to engage in any type activity because a

part of such activity is a dissemination of ideas. Mr. Justice

Black stated in Gibony, et al v. Empire Storage and Ice

Company, supra, page 502:

“But it has never been deemed an abridgment of

freedom of speech or press to make a course of

conduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means of

language, either spoken, written, or printed.”

The court below held each of these two definitions of

mass picketing unconstitutionally overbroad. Appellants

assert that that court erred and that neither definition is

unconstitutional. The court below began its analysis of this

_2]—

statute on the wrong foot when it declared that this

statute regulated “public issue picketing”, when in truth it

regulates labor organization conduct, as demonstrated

above.

The district court then proceeded to dispense with the

first definition of mass picketing by comparison with the

Louisiana Municipal Ordinance held unconstitutional in

Davis v. Francois, 395 F.2d 731 (5th Cir. 1968). That case

and ordinance are clearly distinguishable from the instant

case and statute. As the Fifth Circuit noted in its opinion,

the Louisiana ordinance restricted ‘“‘public issue picket-

ing”. In contrast, the Texas statute regulates the conduct

of labor organizations only, as ¢learly demonstrated in the

discussion of equal protection claims above. Contrary to

the conclusion of the district court, the Texas statute

strikes a permissible balance “‘between the constitutional

protection of the element of communication in picketing

and ‘...the limits of permissible contest open to indus-

trial combatants.’ Thornhill v. Alabama, 310 U.S. 88,

104.” Teamsters, Local 309 v. Hanke, 339 U.S. 470, 475

(1950).

The so-called numbers and distance formula of Article

5154d is not unconstitutional and does not suffer the

defects which made the Louisiana ordinance unconstitu-

tional, as held in Davis v. Francois, supra. That Louisiana

ordinance violated constitutional requirements most seri-

ously in that “it absolutely limits the number of picketers

to two regardless of the time, place or circumstances.”

Davis, supra, at 735. Unlike that ordinance, the Texas

statute has a built-in adjustment formula which allows

more pickets in proportion to the size of the premises

being picketed and the number of entrances. The Texas

formula allows pickets to march in pairs at fifty foot

_22—

intervals, and allows picketing in pairs at sufficiently

spaced entrances. It is thus clear that the numbers and

distance formula of Article 5154d is not an absolute

straightjacket, but instead it is a true formula which

permits greater or fewer pickets according to the circum-

stances of the particular case. This formula is based on the

State’s reasonable judgment balancing “the constitutional

protection of the element of communication in picketing”

during labor disputes, and the need to “set the limits of

permissible contest open to industrial combatants,” (see

Hanke, supra).

In Cox v. Louisiana, 379 U.S. 559, at 564, Mr. Goldberg

stated that the statute in question is:

““..a valid law dealing with conduct subject to

regulation so as to vindicate important interests of

society and...the fact that free speech as inter-

mingled with such conduct does not bring with it

constitutional protection.”

The Legislature of the State of Texas has the duty of

protecting the public of this State against unlawful

conduct and in safeguarding the tranquility of its inhab-

itants. In exercising its discretion in this regard, the

Legislature concluded that the idea sought to be dissemi-

nated could clearly be projected by not more than two

pickets located within fifty feet of any entrance of the

premises being picketed or within fifty feet of each other.

Unless it is the intent of pickets to intimidate, the public

can be made legally aware of grievances sought to be

corrected within the limits of the picketing permitted by

the Statute. Courts of other states have not been reluctant

to limit the number of pickets allowable. See Rice &

Holman v. United Electrical Workers, 65 A.2d 638 (New

=

Jersey Superior Ct. 1949); Standard Appliances v.

Korman, 111 N.Y.S. 2d 783, 786 (New York S.Ct. 1952);

Tarrytown Road Restaurant, Inc. v. Hotel and Restaurant

Employees, 115 N.Y.S. 2d 626, 631 (New York S.Ct.

1952); Sternfair Corporation v. Moving Pictures Operators,

139 N.Y.S.2d 145, 150 (New York S.Ct. 1955); Ballas Egg

Products Company, Inc. v. Meat Cutters, 160 N.E.2d 164

(Ohio Ct.Com.Pls. 1959).

The first mass picketing definition of Section I of

Article 5154d is a valid exercise of legislative discretion

under its inherent police power to regulate labor disputes.

We therefore contend that it is constitutional in every

respect.

Turning now to the second mass picketing definition in

the statute under discussion, Appellants contend that the

district court erred in holding it unconstitutional, and

assert that it is in all respects constitutional.

In Cameron v. Johnson, 390 U.S. 611 (1968), this Court

upheld a Mississippi statute which prohibited picketing “‘in

such a manner as to obstruct or unreasonably interfere

with free ingress or egress...” (390 U.S. at 616). In

contrast, the Texas statute only prohibits pickets which

constitute an actual obstacle “either by obstructing said

free ingress or egress by their persons or by the placing of

vehicles or other physical obstructions”. The Texas statute

is therefore clearly narrower in scope than the Mississippi

statute, and this Court’s decision in Cameron dictates that

the Texas definition be held valid.

The district court misread the Texas statute as well as

Cameron’s construction of the Mississippi statutes when it

attempted to distinguish the instant case from Cameron.

my er

POAT PSL GO LIMBO RITE MOP SGPT EO TIN PIR PE

Contrary to the district court’s interpretation, the Texas

statute only prohibits actual physical obstruction, whereas

the Mississippi statute upheld in Cameron prohibited not

only actual obstructions, but also any unreasonable inter-

ference with free ingress or egresss. Indeed, in Geissler v.

Coussoulis, 424 S.W.2d 709 (Tex.Civ.App. San Antonio,

1967, writ ref’d n.r.e.) the court interpreted this definition

of mass picketing as prohibiting only actual physical

obstructions. With this state court interpretation and the

clear language of the statute, this Court’s opinion in

Cameron dictates the conclusion that the second definition

of mass picketing in Article 5154d, Section 1, is a valid

exercise of the police power to regulate conduct in labor

disputes of the State of Texas. We therefore contend that

it is constitutional in every respect.

ARTICLE 5154f OF THE REVISED CIVIL STAT-

UTES OF TEXAS IS NOT UNCONSTITUTIONAL

BECAUSE OF IMPERMISSIBLE BROADNESS.

Article 5154f of the Revised Civil Statutes of Texas

prohibits secondary picketing, secondary strikes, and

secondary boycotts. It carefully defines the terms used in

the act and specifically delineates those actions prohibited.

The right of the State to adopt such policy is well settled.

This Honorable Court in Carpenters & Joiners Union of

America, et al, v. Ritter’s Cafe, et al, 315 U.S. 722, 728

(1942) stated as follows:

“In forbidding such conscription of neutrals, in the

circumstances of the case before us, Texas represents

the prevailing, and probably the unanimous, policy of

the states. We hold that the Constitution does not

forbid Texas to draw the line which has been drawn

here. To hold otherwise would be to transmute vital

—~25~—

” | MICRA rpm a NR HET iy EROONIET RY BENG OE en atc OH Or ee een

LT AR OARP o> te IY BOR

constitutional liberties into doctrinaire dogma. We

must be mindful that ‘the rights of employers and

employees to conduct their economic affairs and to

compete with others for a share in the products of

industry are subject to modification or qualification

in the interests of the society in which they exist.

This is but an instance of the power of the State to

set the limits of permissible contest open to industrial

combatants.’ Thornhill v. Alabama, 310 U.S. 88,

103-04.

“It is not for us to assess the wisdom of the policy

underlying the law of Texas. Our duty is at an end

when we find that the Fourteenth Amendment does

not deny her the power to enact that policy into

law.”

In that case it was held that the Texas Anti-Trust Laws

could be applied to secondary picketing. Rather than rely

on the generalities of the Anti-Trust Laws the Texas

Legislature spoke specifically to this problem in 1947,

adopting the statute here challenged.

Although the Texas Supreme Court has held that the

definition of “labor dispute” contained in the statute

creates an unconstitutional restraint upon free speech and

communication, it by no means has stricken the remaining

portions of the statute. Indeed, that court has recognized

the continued validity of Article 5154f, wherein only that

portion of the definition of “labor dispute” which offends

the Constitution has been stricken:

“Picketing of Wamix was not in violation of Article

5154f, V.A.T.S. Wamix states in its brief that it is

undisputed that the strike was called ‘for the purpose

of forcing plaintiff to make wage concessions.’ That

_26—

was a lawful objective and created a valid labor

dispute, both as defined in Section 2, subd. h of

Article 5154f and at common law. It was immaterial

to the right to picket Wamix that only a minority of

its employers engaged in the picketing or that those

picketing had been discharged from their employ-

ment. International Union, etc. v. Cox, 148 Tex. 42,

219 S.W.2d 787.”

Dallas General Drivers v. Wamix, 295 S.W.2d 873, 881

(1956). The above language makes it abundantly clear that

the Supreme Court of Texas regards Article 5154f as a

viable statute still in force, except to that extent to which

the definition of “labor dispute” had been stricken.

In the earlier Texas Supreme Court decision cited in

Wamix, that court was explicit in stating the extent to

which it was striking down a portion of the statutory

definition of “labor dispute”. In 1949 that court held:

“As reluctant as we are to declare acts of our

Legislature unconstitutional, it becomes our duty to

declare invalid that portion of the statute involved

which seeks to restrict a “labor dispute” to a

controversy between an employer and a majority of

his employees.”

International Union of Operating Engineers v. Cox, 219

S.W.2d 787, 794. It is obvious that the Texas Supreme

Court was invalidating only a portion of the definition of

“labor dispute”; it was not striking down the entirety of

Article 5154f, nor even the entirety of the statutory

definition of “labor dispute”. In so doing, that court was

following well established rules of statutory interpretation

and the mandate of Section 8 of Article 5154f, which

provides:

~27—

-

ee MORN YLARR RE HRN " —

“If any section, sentence, phrase or part of this Act

shall be held unconstitutional, such unconstitu-

tionality shall not affect the validity of the remaining

portions thereof; . . .”

It is the position of Appellants that Article 5154f, as

interpreted by the highest State court, is a valid and

constitutional exercise of “the power of the State to set

the limits of permissible contest open to industrial

combatants,” Thornhill v. Alabama, 310 U.S. 88, 104.

The three-judge district court held Article 5154f uncon-

stitutional in its analysis of the three operative concepts

defined in §2, to wit: 2(d) “secondary pitketing” 2(b)

“secondary strike” and 2(e) “secondary boycott”. We will

discuss the definitions in this order, following that of the

analysis of the court below.

Section 2(d) defines “secondary picketing” as “the act

of establishing a picket or pickets at or near the premises

of any employer where no labor dispute . . . exists between

such employer and his employees”. The rationale of the

court below in finding this definition overbroad is “It

clearly relies on the absence of an employer-employee

relationship and this is impermissible” (347 F. Supp. at

627) under the case of American Federation of Labor v.

Swing, 312 U.S. 321 (1941). The definition of secondary

picketing, however, does not turn exclusively upon the

absence of an employer-employee relationship: essential to

the definition in 2(d) is the definition of “picket” set forth

in 2(c), and completely ignored by the district court in its

analysis. Certainly it is not the absence of an employer-

employee relationship wherever found that is impermis-

sible: if so no secondary picketing prohibition could be

valid. It is the reliance of a statute exclusively upon the

_28-

eager aa ee ug ETS RRM APNE OY,

absence of such relationship which is impermissible. The

Texas statute requires that the absence of this relationship

be accompanied by the two limiting factors set forth in

2(c): the conduct be in behalf of a labor organization, and

the picketing be for one of the express purposes enumer-

ated in 2(c). With regard to the first limiting factor, see

argument on the equal protection issue above.

With regard to the second limiting factor, this Court

stated in International Brotherhood of Teamsters v. Vogt,

354 U.S. 284, 293 (1957), after reviewing the develop-

ment of the law in this area:

“This series of cases, then, established a broad field in

which a State, in enforcing some public policy,

whether of its criminal or its civil law, and whether

announced by its legislature or its courts, could

constitutionally enjoin peaceful picketing aimed at

preventing effectuation of that policy.” (Emphasis

added.)

The enumerated purposes set out clearly and precisely in

the 2(c) definition of “picket” are statements of public

policy, the enforcement of which is sought by this

statutory prohibition of secondary picketing made in full

conformity with the Vogt doctrine announced by this

Court.

The rationale of the court below in invalidating the

§2(b) definition of “secondary strike” is wholly inade-

quate even if accepted as accurate, which it is not. On the

basis of the “aid or abet’’ clause of §1, the court ruled all

of §2(b) unconstitutionally overbroad because of possible

inclusion of protecting picketing. Even if this reasoning

were sound it would at most justify holding the “aid or

abet” clause invalid as applied to §2(b). However the

reasoning itself is fundamentally unsound. Any picketing

which would constitute aiding and abetting a secondary

strike can be constitutionally prohibited by the Texas

statute under the above quoted doctrine announced in

Vogt. Prohibition of secondary strikes is certainly within

the area of permissible state public policy, and Vogt

expressly permits prohibition of picketing “aimed at

preventing effectuation of that policy”.

Turning now to the §2(e) definition of “secondary

boycott”, it is clear that the court below ignored the plain

language of the statute, and the legislative scheme therein

established. The court relied upon the “aid or abet”

argument which Appellants have refuted in their discussion

of §2(b) above. As shown there, the rationale of the

district court is inadequate in light of International

Brotherhood of Teamsters v. Vogt, supra, wherein this

Court expressly recognized the power of the State con-

stitutionally to enjoin even peaceful picketing when such

picketing is aimed at preventing effectuation of a permis-

sible public policy.

The district court placed the cart before the horse when

it reasoned first that Texas had prohibited second boycott

picketing, second that such picketing is constitutionally

protected, and then concluded therefrom that the entire

secondary boycott prohibition is invalid. The doctrine of

Vogt requires that the prohibition of secondary boycott

picketing be condemned only if the prohibition of the

secondary boycott first be held an impermissible public

policy. The district court, however, did not even consider

the question of the validity of the State’s public policy

against secondary boycotts, beyond its wholly inaccurate

observation: “The evil here is ‘damage or injury’ of any

~30—

a —

character or degree no matter how slight or subtle.” 347

F.Supp. at 628. The court appears to have ignored the

greater portion of §2(e) which sets forth in detail the

specific manner by which the damage or injury must be

inflicted, each of which constitutes a statement of legiti-

mate public policy sought to be protected by this

legislative enactment. It is the contention of Appellants

that these limiting clauses of §2(e) spell out specifically

the state public policy prohibiting secondary boycotts, and

that as such, the State may also prohibit picketing aimed

at preventing effectuation of that policy, in accordance

with the Vogt doctrine.

It is therefore clear that the rationale of the court below

is inadequate to support its ruling of unconstitutionality

with respect to Article 5154f, and furthermore that the

reasoning of the court below is in error even to that

limited extent to which it would hold minimal portions of

that statute unconstitutional. Article 5154f is clear and

concise and is a valid exercise of legislative discretion

under its inherent police power. We therefore contend that

it is constitutional in every respect.

ARTICLE 482 OF THE TEXAS PENAL CODE IS

NOT UNCONSTITUTIONAL FOR OVER

BREADTH.

Article 482 provides as follows:

“Any person who shall in the presence of hearing of

ae Bs curse or abuse such person, or use any

violently abusive language to such person concerning

him or any of his female relatives, under circum-

stances reasonably calculated to provoke a breach of

the peace, shall be fined not more than one hundred

dollars.”

_3)—

This Honorable Court in Chaplinsky v. State of New

Hampshire, 315 U.S. 568 (1942), had before it for

interpretation the New Hampshire abusive language stat-

ute. There this Court stated at page 571:

“Allowing the broadest scope to the language and

purpose of the Fourteenth Amendment, it is well

understood that the right of free speech is not

absolute at all times and under all circumstances.

There are certain well-defined and narrowly limited

classes of speech, the prevention and punishment of

which has never been thought to raise any Constitu-

tional problem. These include the lewd and obscene,

the profane, the libelous, and the insulting or

‘fighting’ words—those which by their very utterance

inflict injury or tend to incite an immediate breach of

the peace. It has been well observed that such

utterances are no essential part of any exposition of

ideas, and are of such slight social value as a step to

truth that any benefit that may be derived from them

is clearly outweighed by the social interest in order

and morality. ‘Resort to epithets or personal abuse is

not in any proper sense communication of informa-

tion or opinion safeguarded by the Constitution, and

its punishment as a criminal act would raise no

question under that instrument.’ Cantwell v. Con-

necticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906,

84 L.Ed. 1213, 128 A.L.R. 1352.”

That Article 482 of the Texas Penal Code which

prohibits the use of abusive language is constitutional is

settled by this unanimous decision in Chaplinsky, supra,

upholding a statute with a similar purpose but couched in

far more general terms. See also the Arkansas statute, very

similar in its language to this Texas statute, noted

approvingly by this Honorable Court in Youngdahl v.

Rainfair, Inc. , 355 U.S. 131, 138 n. 5 (1957).

_32—

Te .:

ARTICLE 439 OF THE TEXAS PENAL CODE IS

NOT UNCONSTITUTIONAL.

Article 439 reads as follows:

“An ‘unlawful assembly’ is the meeting of three or

more persons with intent to aid each other by

violence or in any manner either to commit an

offense or illegally to deprive any person of any right

or to disturb him in the enjoyment thereof.”

Article 449 reads as follows:

“If the purpose of the unlawful assembly be to

prevent any person from pursuing any labor, occupa-

tion or employment, or to intimidate any person

from following his daily avocation, or to interfere in

any manner with the labor or employment of

another, the punishment shall be by fine not exceed-

ing five hundred dollars.”

If Article 439 stood alone it might be subject to

challenge on grounds of unconstitutional indefiniteness,

though even that challenge probably would fail. Insofar as

it makes it criminal for three or more persons to aid each

other “to commit an offense” it is merely a conspiracy

statute. Cf. 18 U.S.C. Section 371. It also prohibits such

an assembly “‘illegally to. deprive any person of any right”

the reference to the rights that are protected is surely not

specific, though it is relevant to note that 18 U.S.C.

Section 242, making it criminal to deprive any person “of

any rights, privileges or immunities secured or protected

by the Constitution or Laws of the United States”, has

been upheld against challenge on the ground of vagueness.

Williams v. United States, 341 U.S. 97, 100-101 (1951).

The word “illegally” may well be the key, since it is not a

—-e..

conspiracy to deprive a person of a right that is prohibited,

but only a conspiracy illegally to deprive him of a right.

Thus this portion of the statute makes criminal a con-

spiracy to do something that the law of the State,

including the civil statutes and the common law, prohibits.

For the purposes to this case Article 439 must be read

together with Article 449. Taking these statutes together,

as the Texas courts have consistently done, they say:

‘An ‘unlawful assembly’ is the meeting of three or

more persons with intent to aid each other by

violence or in any other manner... to prevent any

person from pursuing any labor, occupation or

employment, or to intimidate any person from

following his daily avocation, or to interfere in any

manner with the labor or employment of another. . . ”

This expresses in words of common understanding the

kind of conduct by a group of persons that is prohibited

by the statute. The notion that a group of persons have a

constitutional right to prevent someone else from working

at his employment is hardly likely to be the law. The

Texas Court of Criminal Appeals has given these statutes

very narrow interpretations and required that the indict-

ments set out in detail the matter with which the persons

are actually charged. For example, Blackwell v. State, 18

S.W. 676, the court said that if the indictment or

information throughout did not show for what purpose

the rioters assembled, the information was insufficient. In

the case of Follis v. State, 40 S.W. 277, it was held that an

indictment for unlawful assembly to prevent a party by

violence from having a social gathering or dance at his

house should allege that such party has a house and was

giving or about to give a social gathering or dance. In Luter

_34—

SRD oie cna et <r ng Rees

2 = OAR =i Eg A, .

. . SPOS ERO ENT A RA OTE ENE BE Bry Oe II EE UIE A CA

: ate ATR UID BERR

PE EI ES MET ARINC et BINS REY Ee I, A Cg ae eae Ia

v. State, 22 S.W. 140, the court held information was

defective under Article 449 for failure to set forth the

nature of the “unlawful employment”.

In Briscoe v. State, (1961), 341 S.W.2d 432, the

indictment: was held defective because there was no notice

as to whether the State would rely on intent by violence to

disturb the victim and deprive him of his right to operate a

lunch counter or would rely on proof on an intent to

deprive him of such right by some means other than by the

use of violence. The attention of the Court is also directed

to Tucker v. State, (1961), 341 S.W.2d 433, and Johnson

v. State, (1961), 341 S.W.2d 434. Likewise in Jones v.

State, (1962), 355 S.W.2d 727, the mere attempt to

procure service at a railroad terminal without an act of

violence or other violation of the law would not justify

conviction.

We recognize that the right of lawful assembly is

constitutionally protected. The statute is not directed at a

lawful assembly, but at the unlawful one which is not

constitutionally protected. See Cox v. Louisiana, 379 U.S.

599. It is well settled that courts are inclined to adopt that

reasonable interpretation of a statute which moves it

furthest from possible constitutional infirmity. Kovacs v.

Copper, 336 U.S. 77 (1948); Cox v. Louisiana, supra. It

has likewise been held that even a lawful assembly is

subject to State regulation. Poulos v. State of New

Hampshire, 345 U.S. 395 (1953). In the latter case the

court stated at page 405: .

“The principles of the First Amendment are not to be

treated as a promise that everyone with opinions or

beliefs to express may gather around him at any

public place and at any time a group for discussion or

—35—

RENT RP DES

instruction . . . it has indicated approval of reasonable

non-discriminatory regulation by governmental

authority that preserves peace, order and tranquility

without deprivation of First Amendment guarantees

of free speech, press, and the exercise of religion.

When considering specifically the regulation of the

use of public parks, this court has taken the same

position.”

In the case of Hughes, et al v. Superior Court of

California, 330 U.S. 460 (1950), the court held that

industrial picketing was subject to the control of a state if

the manner in which the picketing was conducted or the

purpose which it seeks to effectuate gives ground for its

disallowance. The court, however held:

“It has been amply recognized that picketing, not

being the equivalent of free speech as a matter of

fact, is not its inevitable legal equivalent. Picketing is

not beyond control of a State if the manner in which

the picketing is conducted or the purpose which it

seeks to effectuate gives ground for its disallowance.”

See cases cited therein at page 466.

Texas has a “right to work law”. Article 5207a,

Vernon’s Annotated Statutes, and similar statues have

been held constitutional by the Texas and the United

States Supreme Courts. Construction and General Labor

Union v. Stephenson, (Tex.Sup. 1950) 225 S.W.2d 958,

Building Service Employees Union, etc. v. Gazzan, supra.

To hold that the right to work law is constitutional and to

hold that the State cannot declare illegal an assembly

whose purpose is to prevent a person from pursuing his

labor, occupation, or employment or intimidate him from

following his daily avocation or to interfere in any manner

_36—

with the labor or employment of another would make the

right to work statute meaningless.

We submit that the statute in question is not unconstitu-

tional for over breadth as the court below found.

THE COURT BELOW IMPROPERLY ORDERED

INJUNCTIVE RELIEF. AGAINST PEACE OFFI-

CERS OF THE TEXAS DEPARTMENT OF PUBLIC

SAFETY AND THE LAW ENFORCEMENT OFFI-

CERS OF STARR COUNTY IN THIS CASE WHERE

PROSECUTIONS WERE PENDING IN THE STATE

COURTS.

The effect of the holding in the court below was to

require federal intervention and to threaten state prosecu-

tions. The order of the court coupled with the injunction,

prevents enforcement of the statutes, either by criminal

complaint or civil petition, regardless of the peaceful or

non-peaceful nature of the picketing activities.

The witnesses presented by Appellees in defense of their

position and their contentions that the criminal charges

pending against them were maliciously filed are supported

only by the testimony of those who are charged with the

commission of the crime. The case was brought about as

an effort on the part of the Appellee to kill charges

pending against them in state court by federal intervention

rather than by allowing a jury of their peers to determine

the questions of guilt or innocence as is provided by the

Constitution of the United States and the State of Texas.

It is important to note in this case that Appellees have not

contended that the Appellants in the future will attempt

to again institute proceedings against them under void

statutes or because they wish to harass Appellees by filing

_37—

charges with no expectations of obtaining convictions. The

record reflects a very good basis for Appellees not

advancing this theory. The president of the Farm Workers

Union, Domingo Arredondo, one of the Appellees herein,

frankly states that picketing continued until it was stopped

by injunction. It was not the arrest that “chilled”

Appellees’ alleged constitutional right and destroyed the

strike. Unless and until the existing injunction is dissolved

or the case reversed on appeal, Appellees cannot engage in

further picketing as prior picketing was found to be

“coupled with violence”.

There have been no arrests or threatened arrests of any

of the Appellees by any of the Appellants since the

institution of this lawsuit which is approximately during a

period of four years.

The Three-Judge Court below relied on Dombrowski v.

Pfister, 380 U.S. 479, 482-485 (1965), supra, as authority

for entering the arena of state prosecution at the early

stages. This reliance apparently ignored the decision of this

Court in Cameron v. Johnson, 390 U.S. 617 (1968).

Any notion that Dombrowski, supra, had opened wide

the door to federal court intervention was dispelled in

Cameron, supra. In Dombrowski, supra, the court there

pointed out that the statutes challenged regulated “ex-

pression itself”, rather than, as in Cameron, supra, statutes

regulating “conduct which is intertwined with expres-

sion”. In this respect our case is like Cameron and unlike

Dombrowski.

The court below misapplied Younger v. Harris, 401 U.S.

37 (1971). Younger holds that federal courts may not

enjoin pending state court criminal prosecution unless the

~38—

=

applicant makes a showing of irreparable harm which is

both great and immediate. Disclaiming any intent to

catalogue exhaustively the situations where irreparable

harm can be said to exist, this court in Younger did,

however, discuss two fact circumstances which would

justify federal court intervention. First, an injunction

would be granted by the federal district court to prevent a

prosecution undertaken for a purpose of harassment and

in bad faith without any expectations of securing a valid

conviction. Secondly, the court suggested that, even in the

absence of the usual requisites of bad faith and harass-

ment, a “statute might be (so) flagrantly and patently

violative of express constitutional prohibitions in every

clause, sentence and paragraph, and in whatever manner

and against whom ever an effort might be made to apply

it,” that federal injunctive relief would be available to

prevent attempts to prosecute under it. In any case, the

harm required to be shown must be comparable to the

harm present in the situation described by the court.

Younger also holds that the cost, anxiety, and incon-

venience of having to defend against a single criminal

prosecution cannot, by itself, be considered irreparable

damage, as that term was used by the court.

The evidence does not reflect that either the Starr

County officials or the Texas Rangers, in attempting to

enforce the statutes in question knew or had cause to

believe that any particular statute was unconstitutional.

Certainly, in the absence of any state court holding any of

these statutes to be unconstitutional prior to the time of

the arrest of the Appellees during the strike, the law

enforcement officers, the group from Starr County as well

as the Texas Rangers, who are not versed in constitutional

law cannot be expected to know that such statute might

be later struck down in federal court.

~39—

In the court below Appellees claimed that the officials

of Starr County and the Texas Rangers were biased and

merely arrested the Appellees to destroy the union. This

contention is utterly ridiculous. Even if the officers had

hoped to stop union activity, which is untrue, the

president of the union testified that picketing continued

until the union was enjoined in state court from further

picketing because the picketing had been coupled with

actual violence.

Members of the union are not above the law merely

because of the union membership. The testimony by the

various defendants clearly proves that violations of law had

occurred prior to each arrest. Appellees’ position below

was that the law enforcement officers were attempting to

destroy the union by arrests on one hand and by criticizing

the law enforcement officers for not filing complaints on

various other offenses and contending that this action of

the law enforcement officials indicated that Appellees

were not violating other statutes. Certainly if the law

enforcement officials were attempting to destroy the

union by arrests, arrests would have been made almost

daily as the picketing occurred daily. In addition, com-

plaints could have been filed against those arrested under

every possible statute where charges could be brought. The

true inference to be drawn from the facts that other

charges were not filed was that the officers, at the time the

arrests were made, were merely trying to uphold the laws

of the State of Texas and preserve the peace.

It is submitted that injunctive relief was not proper

under the facts and circumstances as revealed above. It

could not be presumed that the state courts will not

accord defendants their full federal and state constitu-

tional rights in state court trials. Walker v. Birmingham,

_40—

388 U.S. 307, 319 (1967); Harris v. N.A.A.C.P., 360 U.S.

167 (1959). The mere possibility of an erroneous applica-

tion of constitutional standards will not justify federal

courts disrupting state proceedings. Cameron v. Johnson,

supra; Dombrowski v. Pfister, supra. The state courts,

presumably, would have construed the various statutes

involved and applied them in keeping with constitutional

principles, and the court below should have assumed that

the state courts would do so.

“Principle of comity, of cooperation and of rapport

between the two sovereigns,” Texas v. Payton, 390 F.2d

261, 270 (Sth Cir. 1968), strongly suggests that criminal

law enforcement should be left to the states, and that

except in the most extraordinary circumstances a federal

court should not interfere by injunction with pending state

proceedings. Deference by the federal courts to the states

in this area recognizes that the “state court at least

co-equal with federal courts in its duties and responsi-

bilities in the administration of federal constitutional law.”

Id. at 272.

CONCLUSION

The Three-Judge Federal Court below incorrectly held

Section I of Article 5154d, Section 1 and 2 of Article

5154f of Vernon’s Civil Statutes and Articles 482 and 439

of the Texas Penal Code to be unconstitutional for the

reasons given above. Furthermore, whether these statutes

be constitutional or unconstitutional, the court below

erroneously, under the principles of federalism, enjoined

state officials from enforcing the statutes.

_4)]—

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant

JOE B. DIBRELL

Assistant Attorney General

LANG A. BAKER

Assistant Attorney General

GILBERT J. PENA

Assistant Attorney General

Attorneys for Appellants

P.O. Box 12548, Capitol Station

Austin, Texas 78711

_42—

ee AWA TELLUS ON IR Se: CRO Be a iia?

Sa ee A i ee eS

iii ¥ . . ~~ Ree. ENED = LE

CERTIFICATE OF SERVICE

I, Gilbert J. Pena, a member of the Bar of the Supreme

Court of the United States, do hereby certify that a copy

of the foregoing Appellants’ Brief has been served on

counsel for the Appellees by depositing same in the United

States Mail, certified, postage prepaid, addressed to Mr.

Chris Dixie, Attorney at Law, 609 Fannin Street Building,

Suite 401, Houston, Texas 77002, on this the day

of June. 1973.

GILBERT J. PENA

Assistant Attorney General

43