Appellees Brief — Allee v. Medrano

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SUPREME COURT, U. S

LIBRARY —T

NO. 72-1125 _

Spree Ceuta te United States

October Term, 1972

A. Y. ALLEE, ET AL, Appellants

Vv.

FRANCISCO MEDRANO, ET AL, Appellees

On Direct Appeal From The United States District

Court, Southern District of Texas,

Brownsville Division

BRIEF FOR THE APPELLEES

Curis DIXIE

609 Fannin St. Bldg.

Suite 401

Houston, Texas 77002

713/223-4444

Attorney for Appellees

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

Page

PRELIMINARY STATEMENT ..0.ccscscscccesccscses 2

QUESTIONS PRESENTED 2 f..sicseeeesesesccsiveceas 3

SUMMARY OF THE ARGUMENT ................... 4

STATEMENT OF ‘THE CARE esse cscistcn tenses cc cens 7

S.. Tem FORO DONUT 5 nisi o's veins SOs scan eens 7

2. Legal and Economic Background .................. 8

5. Tike Tea FOC sida she en cdas es daiacdces 10

REE. Kon Ge eN a re eeu oh canes cane ae eers 20

1. Younger v. Harris Tests Are Satisfied .............. 20

2. Factual and Legal Setting of the Use of the Challenged

Pe rer eee ee eee ee eee ee ere eT re 23

3. Mame: Pichoting Statete «6c iiscvccccscssieecesccess 29

4. Unlawful Assembly Statute ....................0.. 36

5. Abusive Language Statute ................ Saree nee 40

6. Secondary Strike and Boycott Statute ............. 42

CANS > 655 LAURA AA SUMED ARREARS SAN ERR 56

me wel we ye Ee a. Ly Serer reer 56

pot gE» GEIR eee nn ren err ee ee rere a gerae 57

INDEX OF AUTHORITIES

CASES Page

Brandenburg v. Ohio, 395 U.S. 444 (1969) .............. 37

Briscoe v. State, 341 S.W.2d 432 (10GL) 2... ccc cesses cds 37

Cain, Brogden & Cain v. Local Union No. 47, 285 S.W.2d

ee | en re et eer ee ee er ere 49

Cameron v. Johnson, 390 U.S. 611 (1968) .............. 34, 35

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)...... 41

Construction Union v. Stephenson, 221 S.W.2d 375 ....... 4,9, 50

Dallas General Drivers v. Wamix, 295 S.W.2d 873 (1956)..

ETE Tee eee eee ee ere 43, 46, 47, 48, 49, 50, 53

Duke v. State, 328 S.W.2d 189 (1959) ............. eens 42

Ex parte Henry, 215 S.W.2d 588 (1948) ................ 44, 49

Flenoy v. Yarbrough, 318 S.W.2d 15 .......... cee ceeeees 9

i ii te

CASES Page

General Drivers, etc. v. Dallas County Const. Employers’

Mam, BOG. GDR GET CEOGED oc cic wccnccssceccascees 49

General Labor Union v. Stephenson, 225 S.W.2d 958 (1950) 44,49

Gooding v. Wilson, 405 U.S. 518 (1972) ................ 6, 41, 42

Grayned v. City of Rockford, 408 U.S. 104 (1972)...... 6, 31, 33, 34

Healy v. James, 408 U.S. 169 (1972) ............ eee eees 33,37

Herndon v. Lowery, 301 U.S. 242 (1937) ............... 54,55

LUO. v. Cam, 219 BAPE FET (ISD) 2... crccceccecees 44, 49

International Brotherhood of Teamsters v. Vogt, 354 U.S. 284

CROE iho d 0b chd der GaN Cheha wees cndaescendcdeses 6, 7, 52, 53

Missouri-Pacific Freight Transport Co. v. International Bro-

therhood of Teamsters, 220 S.W.2d 219 ............... 49

New York Times v. Sullivan, 376 U.S. 254 (1964)........ 30

Organization for a Better Austin v. Keefe, 402 U.S. 415

I ee ong hak wk v4 kus sone VNR KD 38

Police Department of City of Chicago v. Mosley, 408 US.

Oe EU i ain 0k WHA NS an cee n heed ovine censewsces 6, 33, 34

Sulth v. Camp, SES TZ. SEB CIGSI) 20. nccccccescccccs 54

Teamsters v. Cain, Brogden & Cain, 272 S.W.2d 544 ...... 49

Texas State Optical Co. v. Optical Workers Union, 257 S.W.

ee er eer rer. Cre eet Tere eee eee Tee Te 49

Wright v. Georgia, 373 U.S. 284 (1963) ................. 54

Younger v. Harris, 401 U.S. 37 (1971) ............. 4, 8, 20, 21, 22

STATUTES

Se rrr her ee ere ee re eres 8

Be EE Bie Rock b oa enh sods ca seanccdiwrgetscs 8

Oe SN IE Naa haha car hip i chp denesneeceedcesucces 8

Bo eee el eT errr meen 8

We TE i IE Si Gai bh obi Ad oe es batie 5 be canntdaeece 8

Raticde SG, TOMS FR COED i iv sicwu ccc ccdeesccecens 36, 37, 40

Btn GOR, TM PE CORED: oo 6 ow cv cece icc ceactccss 40

I re ee Fe ME ov hse di nasdenensacesdanas 36, 37

SEE FPG, I OE IE ii kw cdc svencecccccccness 40

SEE Be He Ck een ei ceiccnccnannassince 40

RD Ge, ee IE GD hank eh ins ewieeee cacccass 40

PE FR, Se FE COO a on. twin cceccnnsiaccdis 4, 36

BD es I Henn Wak ons be ecddandnscaticcacs 8, 23

REE BR: Ball, Keke keen ccciscecddsnccantacenys. . Oe

PE BOs WI 46 0s an 5 960 bed owiehe chs caWeneens 29, 32

Article 5154f, V.A.TS. ....... 23, 34, 42, 43, 45, 47, 49, 50, 53, 54, 56

Ie Be ks, Wi ok eeiwenw dees ibesbks paacedsus 9

ARTICLE

oe ee BR re | RR Ce er rere 54

NO. 72-1125

Supreme Court of the United States

October Term, 1972

A. Y. ALLEE, ET AL, Appellants

FRANCISCO MEDRANO, ET AL, Appellees

On Direct Appeal From The United States District

Court, Southern District of Texas,

Brownsville Division

BRIEF FOR THE APPELLEES

This appeal has been perfected by only five of the

original defendants, Texas Rangers A. Y. Allee, Jack

Van Cleve, Jerome Preiss, T. H. Dawson, and S. H.

Denson. The judgment has become final as to the five

other defendants who are the Sheriff and two Deputy

Sheriffs of Starr County, Texas, Jim Rochester, a Special

Deputy of the Sheriff's Department, and B. S. Lopez, a

Justice of the Peace.

PRELIMINARY STATEMENT

Appellants’ brief, like the Jurisdictional Statement be-

fore it, makes no challenge under Rule 52 F.R.C.P.

or other reference to the fact findings of the district

court. These unchallenged fact findings are found in the

Appendix to the Jurisdictional Statement. We refer to

these findings by the designation JS App. ___._ (Refer-

ences to the Single Appendix printed for this case are

designated App. —__.)

Appellants’ brief presents a version of the evidence

which is inconsistent with the express fact findings or

the reasonable inferences which flow from such findings.

Much of it is completely alien to the record.

In a few words, the district court found that the ten

defendant law officers engaged in a year-long conspiracy

to take sides in a labor-management controversy, to

prevent the success of the union’s organizing effort, to

restrain the supporters of the organizing drive from exer- ©

cising their rights under the Constitution of the United

States, and to exhibit their personal bias and opinions

against the strikers and their cause (JS App. 49-51).

The methods used were arrests and detentions without

the filing of charges, dispersals of pickets and demon-

strators, threats of future prosecutions if union activities

did not cease, abuse of the bonding process, and induce-

ments by defendant peace officers to strikers to return to

work, all of which, the district court found, constituted a

“pattern of action” designed to halt the strike and to dis-

courage attempts to engage in constitutionally protected

conduct in support of the strike (JS App. 51). Further,

as a part of this pattern the defendants instituted prose-

cutions in bad faith and for the purpose of harassment

(JS App. 55). Under this pressure the union’s efforts

collapsed in June of 1967, and this suit was filed in an

effort to seek relief (JS App. 51-52).

An integral part of this official lawlessness was the in-

fliction of serious physical violence by the defendant law

officers upon the persons of union supporters (JS App.

45-46; 47-49).

A further element of this conspiracy, the district court

found, was the employment of the challenged statutes

for the bad faith arrests and prosecutions of plaintiffs.

The district court concluded that the requirements of

Younger v. Harris, 401 U.S. 37 (1971), and its com-

panion cases were well satisfied and that irreparable in-

jury was demonstrated also by the fact that defendants

prevented plaintiffs from defending their conduct effec-

tively by such additional means as the dispersal of union

supporters under threats of arrest, by arrests without

charges, by the filing of numerous charges, by the sup-

porting of a private anti-union newspaper, and by

threats to union supporters who were in custody or who

were seeking to file their own charges, or who were en-

gaged in picketing, or who, sometimes, were engaged in

no activity whatsoever (J.S. App. 55). The district court’s

careful analysis and application of the Younger v. Harris

tests is at J.S. App. 51-55.

QUESTIONS PRESENTED

1. Whether the district court’s findings, which are not

challenged as “clearly erroneous” by appellants, that de-

fendants had engaged in bad-faith prosecution and harass-

ment of plaintiffs to discourage the exercise of their con-

stitutional rights were sufficient under Younger v. Harris,

401 U.S. 37, to justify the limited injunction entered

against the defendants?

2. Whether the Texas statutes which the district court

found to be the basis of the bad-faith prosecutions brought

by defendants are unconstitutional?

The challenged statutes are four: (1) Mass Picketing,

(2) Unlawful Assembly, (3) Abusive Language, and

(4) Secondary Picketing, Striking, and Boycott.

The district court declared the Texas Disturbing the

Peace statute unconstitutional, but no appeal has been

taken from this decision.

The district court upheld the constitutionality of

Article 784 of the Texas Penal Code which prohibits ob-

structing public streets.

SUMMARY OF THE ARGUMENT

The Statement of the Case under the topic “The

Harassment Facts,” pp. 10-20, infra, collates the detailed

fact findings of the district court and presents also some

cumulative undisputed evidence. It serves to demon-

strate the bad-faith use of the challenged statutes to dis-

perse, arrest, and prosecute plaintiffs as an integral part

of the official lawlessness directed toward plaintiffs.

The Argument under Topic 1, “Younger v. Harris Tests

are Satisfied,” pp. 20-23, infra, callates the many facts and

~ circumstances which constitute irreparable harm to

plaintiffs not redressible by the defense of pending cases.

We show that the district court carefully and correctly

applied-the Younger v. Harris tests before proceeding to

limited injunctive relief and declaratory judgment.

The Argument under Topic 2, “Factual and Legal Set-

ting of the Application of the Challenged Statutes,”

pp. 23-29, infra, develops these points:

1. The challenged statutes aim directly at pure speech

(Abusive Language), pure assembly (Unlawful Assem-

bly), or regulate the place and manner of expression and

‘cumulative conduct (Mass Picketing), or prohibit picket-

ing and related inducements in labor disputes (Secondary

Picketing, Striking and Boycott).

2. Since it was stipulated and clearly demonstrated that

plaintiffs’ program and objectives were strictly in accord

with Texas public policy, plaintiffs’ activities were pro-

tected by the First Amendment if peacefully conducted.

Plaintiffs were in fact repeatedly arrested and charged

while engaged in constitutionally protected conduct. Each

challenged statute was in fact applied to disrupt First

Amendment speech and assembly.

3. The physical scene of the labor dispute was the

rural area of South Texas. The usual traffic problems

_were absent. The employers are large growers who em-

ploy hundreds of employees.

4. Each of the many repeated arrests or dispersals was

under authority of only a single one of the challenged

statutes, but all of them could have been applied on

each occasion to plaintiffs’ constitutionally protected ac-

tivities as the Attorney General demonstrated to the court

below. |

The Argument under Topic 3, “Mass Picketing Stat-

ute,” pp. 29-36, infra, shows that the term is a mere label.

The statute requires the spacing of pickets at 2 every

50 feet in all circumstances. The statute also applies only

to pickets stationed by an organization but not to others

who stand closer than two every 50 feet. It also applies

regardless of actual obstruction, reasonable or unreason-

able. The formula is entirely unreasonable under the

principles stated in Grayned v. City of Rockford, 408

U.S. 104 (1972). It is also discriminatory. Police De-

partment of City of Chicago v. Mosley, 408 U.S. 92

(1972).

Under Topic 4, “Unlawful Assembly Statute,” pp. 36-40,

infra, the unconstitutionality of the state is demon-

strated under authority of Brandenburg v. Ohio, 395 U.S.

444 (1969). The Texas statute prohibits a meeting of

three or more persons with intent to aid each other “by

violence or in any, other manner” to commit an offense,

illegally deprive anyone of any right, or to “disturb” any-

one in the enjoyment of any of his rights.

Under Topic 5, “Abusive Language Statute,” pp.40-42,

infra, the unconstitutionality of the statute is demon-

strated under Gooding v. Wilson, 405 U.S. 518 (1972).

The Texas statute is ideritical to the one in Gooding.

Under Topic 6, “Secondary Strike and Boycott Statute,”

pp. 42-56, infra, it is demonstrated how decisions of the

Texas courts have invalidated the statute and how de-

fendant officers nevertheless utilized it to. arrest plaintiffs

for conduct plainly identified by the Téxas Supreme Court to

be constitutionally privileged. The Texas Supreme Court

after rejecting the statutory tests has pronounced other

and different common law tests of secondary boycott

which are now effective in Texas, and these are enforce-

able in the equity court according to a balancing formula

. designed by the Texas Court. These Texas cases demon-

strate that the state courts have elected not to limit the

literal terms of the statute by judicial gloss or by plastic

surgery but have accepted its overbroad language to be

fatal. As so construed the statute is unconstitutional under .

the principles of /nternational Brotherhood of Teamsters

v. Vogt, 354 U.S. 284 (1957). The judgment of the

district court does not change or affect existing Texas

laws. Rather, it terminates improper arrests under an in-

valid and obsolete statute.

STATEMENT OF THE CASE

1. The Judgment Below

The judgment below does not enjoin pending state

prosecutions. Nor does it enjoin future application of

these statutes at the hands of state authorities other than

the specific 10 peace officers who deliberately misused

the challenged statutes to effectuate their conspiracy with

private parties. -

Narrowly drawn in on paragraph (App. 100-101),

the injunction order is specifically “directed to” the five

named Texas Rangers (one Captain and four Privates),

the Sheriff of Starr County, Texas, and his two named

deputies, and their agents, employees, successors in office,

and persons in active concert with them (App. 95-96)

and the two other named persons. This group is ordered

not to enforce the challenged statutes against Plaintiffs

and their supporters by “. . . arresting, imprisoning, filing

criminal charges, threatening to arrest, or ordering or ad-

vising or suggesting that they disperse under authority of

. . Such statutes. (App. 100-101)

Thus, carefully matched to the specific evils en-

countered, the injunction leaves the Attorney General

of Texas, prosecutorial officials and private parties free

to litigate under the statutes either in the pending prose-

cutions or in new cases. Authoritative state court con-

structions to save the statutes’ constitutionality by de-

fining their proper application can be obtained anytime

state officials desire. Of course, other peace officers all

over Texas are not covered by the injunction and may

utilize the statutes as they see fit.

The main thrust of the final judgment is to render

declaratory judgment as prayed for under the Declaratory

Judgment Act, 28 U.S.C.A. 2201 and 2202, and to

render injunctive relief as prayed for under the Civil

Rights Acts, 42 U.S.C.A., §1983 and §1985 on account

of the adjudicated conspiracy of the defendants to de-

prive plaintiffs of their civil rights, privileges and im-

munities protected by the Constitution of the United States

by acts under color of state law.

There is no challenge on this appeal to the injunctive

relief against the official lawlessness found to exist and

adjudicated to be in violation of the Civil Rights Acts.

(App. 72; 101-102). The conspiracy facts under these

acts and the harassment facts under Younger v. Harris

requirements turn out to be the same in this case.

The Supreme Court is respectfully advised that the

preservation of this unchallenged part of the judgment

below is of highest importance to these Appellees who

have been terrorized enough by the law officers.

2. Legal and Economic Background

The federal statute does not cover farm workers be-

cause the definition of “employee” in 29 U.S.C.A., §152,

contains the proviso that the term “shall not include any

individual employed as an agricultural laborer. . . .”

Article 5153 of Vernon’s Annotated Texas Statutes pro-

vides that it shall be lawful for any member of a union

or other organization to induce or attempt to induce by

peaceful and lawful means any person to accept any

particular employment, or enter or refuse to enter any

pursuit, or to quit or relinquish any particular employ-

ment (Appendix, infra, p. 57). Article 5207a, §1,

guarantees the right of every person to bargain individu-

ally or collectively with his employer (Appendix, infra,

p. 57). Article 5154b prohibits picketing or striking in

breach of a labor contract. (Appendix, infra, p. 57)

Under these Texas statutes the right to organize an asso-

ciation of farm workers, the right to appeal to employees

to quit any particular employment or to refuse to enter

upon it, and the right to seek collective or individual bar-

gaining are entirely consistent with state policy. This was

stipulated. (App. 24).

However, an employer is under no statutory duty to

recognize a union selected by his employees and has no

duty to bargain for a labor contract. Flenoy v. Yarbrough,

318 S.W.2d 15, writ ref., n.r.e. An employer may recog-

nize a union as a representative of one, several, or all

of his employees if he desires to do so, or he may fight

economically and may defeat union organization by re-

placing strikers, or by other lawful means. In short, Texas

law looks to the survival of the fittest economically.

In this case it was stipulated that the ultimate objective

of the farm workers was in keeping with the public policy

of the State. Indeed, their efforts to solicit support were

exactly the last resort that Texas statutes contemplate in

view of employer resistance to union organization.

(App. 24).

Starr County, Texas, one of the poorest in the nation

economically (App. 22-24), is located deep in the Rio

Grande Valley. This labor dispute involved several large

growers which are shown by the record to cultivate thou-

sands of acres with hundreds of farm workers employed

during harvest seasons of the year. Largely these farm

workers are of Latin-American extraction of both US.

and Mexican residence and citizenship. A substantial part

of thé labor force is transported to the farms in bus loads.

(App. 369).

3. The Harassment Facts

Regardless of the broad experience of the Justices of

this Court, we think Your Honors have not seen a case

like this.

The district court found that the farm workers in Starr

County attempted for one full year, June 1, 1966 to

June 1, 1967, to exercise their rights of citizenship, but

during the entire year they were systematically set upon,

threatened, dispersed, arrested, jailed, detained, man-

handled and even beaten. Throughout, the law officers

intertwined their enforcement of these unconstitutional

statutes. The district court’s findings of fact are set -out

at J.S. App. pp. 34-55.

Substantially as found by the district court, the farm

workers’ travail was this:

Union organization started June 1, 1966. Within one

week, on June 8, 1966, Eugene Nelson, a union leader,

was stopped from soliciting the support of agricultural

workers at the Roma International Bridge, arrested with-

out warrant or charge, jailed for several hours in the

county jail of Starr County, counseled in a menacing

way by the county attorney, then released without

charge. (J.S. App. 38-39).

As union organization developed in the summer of

1966, the Sheriff’s office commenced the distribution of a

“violently” anti-union weekly newspaper, La Verdad.

Weekly, Deputy Sheriffs went to the bus station in official

cars to pick up these newspapers, took them to the

Sheriff's office and prepared them for distribution to the

public, including house-to-house distribution by deputy

sheriffs. The district court attached copies of La Verdad

to its opinion. The headlines said: “ONLY MEXICAN

SUBVERSIVE GROUP COULD SYMPATHIZE WITH

VALLEY FARM WORKERS,” UNION LEADERS IN

VALLEY ARE VAGRANTS,” and “GOVERNOR

CONNALLY SHOULD DO SOMETHING ABOUT

VALLEY STRIKE.” The Supreme Court will please

bear in mind that the deputy sheriff distributors of these

weekly newspapers were the law officers who administered

the statutes here challenged. (J.S. App. 49).

On October 12, 1966, about 25 farm workers appeared

on U. S. Highway 83 adjacent to the Rancho Grande

Farms to solicit support of the workers in the fields. Deputy

Sheriff Raul Pena dispersed these persons by threatening

to arrest them for disturbing the peace in violation of

Article 474. The farm workers did disperse under this

threat, but William Chandler was arrested and charged

with disturbing the peace when he told Pena that he had

no right to order these people to disperse. Although Pena

testified that Chandler and the others were using abusive

and vulgar language, Pena’s signed complaint against

Chandler shows that the words “obscene language, vulgar

language, indecent language, swearing and cursing, yell-

ing and shrieking, exposing the person, and rudely display-

ing a weapon” had been scratched out of the printed

form leaving only the charge of using “loud and vociferous

language.” The district court concluded from the evidence

that the union supporters were engaged in peaceful picket-

——— s

ing along the highway right of way when ordered to dis-

perse. (JS App. 39) After being arrested by Pena,

Chandler was jailed and placed under $500 bond, al-

though the maximum fine for the offense was $200. When

two union supporters went to the courthouse to make

bond for Chandler, a deputy sheriff cursed them and told

them that if they did not leave the courthouse they, too,

would be jailed. (JS App. 39-40)

On October 24, 1966, Domingo Arrendo, then under

arrest, uttered the words “Viva La Huelga” (long live

the strike) in the courthouse, whereupon a deputy sheriff

slapped him and put a cocked pistol to his head. The

deputy ordered him not to utter those words in the court-

house again. (J.S. App. 40).

On November 9, 1966, defendant Deputy Sheriff

Roberto Pena filed criminal charges of aiding and abetting

a “Secondary Strike” under Article 5154f against 10

union supporters on account of their picketing at the

packing shed of La Casita Farms on November 3. The

La Casita shed is located about 30 feet from the public

highway where the picketing occurred. (App. 341; PI.

Ex. 7.24A; Pl. Ex. 7.5a; Pl. Ex. 7.5B; Pl. Ex. 7.5C; Pl.

Ex. 7.5D)

Texas Rangers were called from afar to serve the war- —

rants of arrest on the ten persons. Two Texas Rangers,

Frank Harger and Jerome Preiss, arrested two union

members and put them in the police car. In the car the

Rangers told the two farm workers that they could go to

work for La Casita Farms for $1.25 an hour (the union

objective), that later they could get a more peaceful

union, and that the Rangers were there to break the

strike and would not leave until they had done so. This

was aptly described by the district court as selective law

enforcement. (JS App. 40-41)

We invite the Court’s attention to the manipulation of

the Texas statute in these November 9 charges. Article

5154f renders either picketing or striking “secondary”

(and thus illegal) if not part of a “labor dispute.” In

turn, a “labor dispute” is limited to a controversy between

an employer and a majority of his employees.

Texas courts have long since declared the “secondary

picketing” phrase of Article 5154f to be unconstitutional

since simple primary picketing by a minority of em-

ployees which violates no public policy of the State is con-

stitutionally privileged. Ex Parte Henry, 215 S.W.2d 588;

LU.O.LE. v. Cox, 219 S.W.2d 787; General Labor Union

y. Stephenson, 225 S.W.2d 958. Notwithstanding the

constitutionally privileged character of this ‘ primary

picketing at the packing sheds, the November 9th charges

presented an ingenious new angle. The pickets, the charges

alleged, did “aid and abet” a “secondary strike” when

the engineer and fireman of the Missouri Pacific Rail-

road declined to cross the picket line to go to the pack-

ing shed. After all, the engineer and the fireman were

certainly less than a majority of the railroad’s employees,

and, therefore, the picketers, by picketing, aided and

abetted them in a “secondary strike.” This was a cute way

around the cited Henry, Cox and Stephenson decisions

and furnished a pretext for the arrest of union adherents

for peaceful and privileged primary picketing. Article

5154f provides a penalty up to six months in jail for its

violation. Of course, these charges have never been set

for trial in the intervening seven years.

This performance was repeated by the defendant law

officers on June 1, 1967, when three farm workers were

arrested for picketing at the same place. (Pl. Ex. 7.24C;

App. 336-342).

These object lessons could hardly be misunderstood

by the union sympathizers. If they could be prosecuted

for “aiding and abetting a secondary strike” while law-

fully picketing at the public road 30 feet away from

La Casita Farms’ shed, then picketing, however lawful

as to the growers, would subject them to arrest wherever

done.

On January 26, 1967, five union sympathizers were

arrested on the banks of the Rio Grande River while

soliciting the employees of Trophy Farms to join the

union. The charge this time was Abusive Language in

violation of Article 482 in that they did curse or abuse

or used violently abusive language toward the workers

under circumstances reasonably calculated to provoke a

breach of the peace. That evening approximately 20 union

supporters gathered at the courthouse to conduct a prayer

vigil. Two members of the group, Reverend James Drake

and Gilbert Padilla, mounted the courthouse steps and

engaged in prayer. Deputy Sheriff Raul Pena ordered

group to leave the courthouse grounds and they did |

but Drake and Padilla remained on the steps. The deputy

thereupon arrested them for Unlawful Assembly in vio-

lation of Article 439. (JS App. 41-42)

No Texas statute prohibits the presence of this group

on courthouse grounds. By stipulation it was established

that the courthouse grounds had been used in the past

for night rallies and dances by custom and practice in

the particular county. The court below found this to be

one of the several episodes of selective enforcement by the

defendants. (JS App. 42)

Although stipulation and evidence established that or-

chestras and record players had played loudly at night

on the very courthouse steps where Drake and Padilla

prayed quietly (App. 164; 166; 628), and that court-

house grounds liad been used by political parties to erect

tents, the Unlawful Assembly criminal complaint alleged

that Drake and Padilla disturbed the night custodian of

the courthouse. (App. 79)

On February 1, 1967, two Catholic priests, Father

Smith and Father Killian, and three other priests, as-

sembled in a wooded area on private property owned by

one Thomas Bazan adjacent to the property of La Casita

Farms. The five priests solicited the workers in the fields

to join the Union. They were promptly arrested for Dis-

turbing the Peace and taken to a magistrate. (JS App.

42-43)

There the magistrate, B. S. Lopez, Justice of the Peace,

informed the priests that if they were ever brought into

the same court under the same charge they would be put

under a peace bond, and if they couldn’t meet the bond,

they would be put in jail. Relative to these arrests the

Attorney General of Texas made the following statement

before the three judge court. He said in Defendants’ Post

’ Hearing Brief:

“Based on the testimony of the two Catholic

priests, Father Smith and Father Killian, everyone

present could have been charged with the violation

of Article 5154d, mass picketing, with Articles 439

and 449, unlawful assembly, and possibly under

Article 482, abusive language, as Father Smith stated

that they were calling the workers ‘scab’ in Spanish

in attempting to use the word that has ‘punch to it

and an edge on it.’” (Appendix, infra, p. 58.)

As of May 11, 1967, the farm workers had developed

important support on the Mexican side. As a result, on

that day no Mexican farm workers came across the Rio

Grande river to do work for the growers. (App. 203)

This development triggered intense activity on the part of

Texas Rangers.

On the morning of May 11, 1967, a group of farm

workers supporters left Roma Bridge headed south for the

Camargo Bridge. On the way their car was stopped by a

Texas Ranger. The driver of the car was arrested for not

having a driver’s license. On the same day, Ranger Cap-

tain Allee solicited union adherents to go to work for

$1.25 per hour. (JS App. 43)

On May 12, 1967, Texas Rangers received a com-

plaint from La Casita Farms that the union people were

on private property owned by one Solis adjacent to the

property of La Casita. The Texas Rangers promptly went

to the scene of the solicitation. First they made investi-

gation whether the union supporters had permission from

Mr. Solis to be on his private property. Then the Texas

Rangers caused the pickets to spread out 50 feet apart.

Reverend Edward Krueger, a union sympathizer, stepped

off the distance to comply with the Rangers’ instructions.

All this took place in the woods. (JS App. 43-44; App.

796)

Later that day, May 12, Eugene Nelson went to the

Sheriff's office to complain that the Texas Rangers were

acting as a private police force for La Casita Farms.

As a result, Nelson was arrested and charged with threat-

ening the life of certain Texas Rangers. Defendant, Cap-

tain Allee, testified that he did not take the “threat”

seriously, he directed that charges be filed against Nelson

in order to protect the Texas Rangers from criticism if

something happened to Nelson. After Nelson was jailed

on this charge, the Sheriff’s deputies unlawfully refused

to accept a tendered appearance bond although they knew

that the bond was signed by a prominent landowner in

Starr County, one Joseph Guerra. (JS App. 44) The

Texas Rangers who arrested Nelson on this charge told

him that he had lived a charmed life in Starr County long

enough and warned him not to go too near the river

or he might end up floating down. (App. 122-123)

On May 18, 1967, a group of about 22 Pickets as-

sembled at the side of U. S. Highway 83 to solicit sup-

port from workers in the fi¢ids of Trophy Farms. De-

fendant Ranger Captain A. Y. Allee testified that he was

called to the scene by a Trophy Farms official, and when

he arrived he found 10 or 12 pickets on the side of the

road “all in a bunch” (but not near the Trophy Farms

gate). He thereupon arrested them since they were

bunched up. (App. 797-799) The Ranger Captain testi-

fied that he administered the Mass Picketing statute in |

this way, that is, persons “bunched up” within 50 feet of

each other were arrested. (App. 847)

On May 26, 1967, 14 pickets were arrested in two

groups at Mission, Texas. They were charged with Unlaw-

ful Assembly (Pl. Ex. 720A) and later with Secondary

Picketing and Boycott (Pl. Ex. 720B; 720C). The first

group of 10 persons were arrested when they allegédly

attempted to picket a train which carried produce. After

the first 10 had been taken to jail, 4 others not present

at the first arrest were likewise arrested and charged with

Unlawful Assembly and then Secondary Picketing and

Boycotting. The latter 4 were Reverend Edgar Krueger,

his wife Magdaleno Dimas, and Douglas Adair. The dis-

trict court found that although the evidence was dis-

puted as to whether the first 10 arrests were justified

under the circumstances, it is clear that the second ar-

rests were not. The district court also found that the

persons arrested were roughly handled by the Rangers,

and Reverend Krueger was advised that he should stop

his picketing and strike activities since these were not

consistent with his ministerial functions. (JS App. 44-46)

As to the first arrests, the defendant Rangers testified

that the pickets were standing at the intersection of the

main street of Mission, Texas, with the railroad tracks

and thus were in position to physically block the train.

As to the second group of four, the district court found

that Reverend Krueger was arrested “at best” because

he had asked to be arrested. Also, Reverend Krueger

had been urging bystanders to resume picketing (after the

train had passed) according to the Rangers. The district

court also found that Mrs. Krueger was arrested either for

taking a picture of her husband’s arrest or attempting to

strike defendant Ranger Captain Allee with her camera in

defense of her husband. The district court found that

none of the four had picket signs, or were picketing, or

were physically blocking the railroad tracks. They were

trying unsuccessfully to encourage bystanders to picket

according to the Rangers. (JS App. 45-46) All four of

them were booked at the jail for Unlawful heey.

(App. 925-926).

The district court also found that the defendant Rangers

arrested Reverend Krueger and Magdaleno Dimas and

then took them to a passing train where they held the

prisoners’ bodies and faces only inches from the passing

train. (JS App. 45)

On May 31, 1967, the Rangers arrested 13 persons for

mass picketing in the woods at the west periphery of La

Casita Farms. Ranger Captain Allee testified that he ar-

_ rested these persons because they were gathered together

in a group and thus were picketing in a forbidden manner

in his sight and presence. Three of the pickets had moved —

southward along a country road to follow the work force

as it moved through the field, but the other eight who were

bothered by the heat waited with their cars under the

' shade of some trees with their signs put away. Captain

Allee arrested the first three pickets and then directed that

the eight others under the tree likewise be arrested for

mass picketing. After all, they were bunched up under the

tree. (J.S. 46-47)

On the night of June 1, 1967, Ranger Captain Allee

with gun in hand conducted in Rio Grande City, Texas a

conspicuous’ and terrifying man hunt for Magdaleno Di-

mas, a union supporter. The man hunt led to a private

residence which Texas Rangers surrounded, then broke

into after calling out the Justice of the Peace to issue a

curbside search warrant. After breaking in, they admin-

istered a severe and merciless beating to Dimas and an-

other. (J.S. App. 47-49)

The man hunt was conducted without known reason,

- without charges, and without warrant, but after Dimas

was jailed, an official of La Casita Farms, defendant Jim

Rochester, was called out in the night to file justifying

charges. Dimas was-charged with disturbing the peace at

La Casita Farm Shed No. 1 by yelling, “Viva La Huelga.”

(Long live the strike). (Pl. Exhibit 7. 22D) and by rudely

displaying a deadly weapon. (PI. Exhibit 7. 22C). Other

evidence established that during the daylight hours of the

same day, Dimas had walked’ along the highway past La

20 :

Casita’s packing shed with a hunting rifle in hand, return-

ing from a bird hunt. (J.S. App. 47-49)

Also on June Ist three more union supporters picketing

at the La Casita shed were arrested for mass picketing and

secondary boycott. The charge of mass picketing was filed

because they were three in number. The secondary boy-

cott resulted from the fact the pickets were near the prem-

ises of the Missouri Pacific Railroad (the tracks which

enter La Casita’s shed), an employer which had no labor

dispute with its employees. (Pl. Ex. 7.24B, 7.24C; App.

336-342)

Under this pressure, the Union’s effort collapsed. So,

on June 1, 1967, the Union announced that it would dis-

continue its organizing efforts and seek relief from the

courts. This suit followed promptly. (J.S. App. 51-52)

All the above facts and many others were proved to the

district court which was unanimous in making uncom-

monly strong fact findings. The evidence showed 8 cases

of overt official partiality, 5 cases of manhandling by offi-

cers, 7 cases of unwarranted prosecution, 3 cases of bond-

ing abuses, and 56 arrests for First Amendment activity,

plus numerous dispersals of persons or interference with

them where no charges were filed. Physical brutality was

administered to at least 5 union leaders.

None of the pending prosecutions has ever been set for

trial.

ARGUMENT

1. Younger v. Harris Tests are Satisfied.

The court below was clearly right that Younger v.

Harris tests are satisfied and that injunctive and other

relief is appropriate. The argument of the Attorney Gen-

eral to the contrary is based upon his own recitation of

claims that are apart from the fact findings and at war

with the credited evidence. The district court’s review

of the harassment facts is at J.S. App. 34-35.

The district court's analysis of the record in light of

Younger (J.S. App. 51-55) starts out with recognition

that if the only danger to plaintiffs, real or imagined, is

“chilling” of free expression incidental to the good faith

prosecution of violations of state penal provisions (even

unconstitutional statutes), Younger is not satisfied (J.S.

App. 51).

The district court then proceeded to find irreparable

injury in addition to bad-faith prosecution:

“The arrests, detentions without the filing of

charges, seizures of signs, dispersals of pickets and

demonstrators, the threats of further prosecutions if

pro-union activities did not cease, the abuse of the

bonding process, and the inducements offered by

peace officers to strikers to return to work, disclose

a pattern of action by local authorities designed to

halt the strike and to discourage attempts to engage

in constitutionally protected conduct in support of

the strike. The union’s efforts collapsed under this

pressure in June of 1967 and this suit was filed in

an effort to seek relief. Since that time the union

has not engaged in organizational activities. To the

extent that the farm workers were forced to abandon

activity to better their lot which is protected by the

First Amendment they have endured irreparable

harm.” (J.S. App. 51-52).

* * *

“Here, we find that these plaintiffs have met both of

these tests in that they have established the exist-

ence of bad faith prosecutions as well as irreparable

SERS AS RS, RNAP ECHL OR TEAR EN Ya ENE TRE PES NM OT RN Mit

injury to their own federally protected rights and

those of their class. The bad faith on the part of the

local authorities can be seen in facts set out above

in Part I and in the discussion of ‘irreparable in-

jury’ in this part. The authorities have prevented the

filing charges, by abusing the bond system, by filing

numerous charges against the plaintiffs, by refusing

to file complaints made by the plaintiffs, by support-

ing a private anti-union newspaper, by the com-

ments and threats made to union supporters in cus-

tody, union supporters seeking to file charges, union

supporters on picket lines, and union supporters en-

gaging in no activity whatsoever, and all for the

purpose of breaking up the strike and preventing per-

sons from advocating support for the strike and its

principles. The policy authorities were openly hostile

to the strike and individual strikers, and used their

law enforcement powers to suppress the farm work-

ers’ strike.” (J.S. App. 55.)

If this case does not satisfy Younger, no case can.

The Attorney General’s indifference to the fact findings

and to the official lawlessness behind them is fresh evi-

dence that some of our state officials still do not wish to

shoulder responsibility for the control of ugly law enforce-

ment. The alleged misconduct attributed to farm workers

is made practically from the whole cloth. Indeed, the dis-

trict court found at J.S. App. p. 50 that the strongest evi-

dence of an assault on anyone by the farm workers during

the entire year was an attempt by one of them to reach

through an open window of a passing truck to grab a

nonstriker by the coat on December 28, 1966. Although

it was claimed that property destruction and the burning

RN gree 0 TE TT REY CE EI

of a railroad bridge resulted from the strike, no evidence

was presented specifically in this respect, and the district

court so found. (J.S. App. 37-38)

Without purporting to whitewash the activities of the

farm workers and their sympathizers, the district court

found that the law officers stepped over the line of neutral

law enforcement and entered the controversy on the em-

ployers’ side. The law officers were found to have delib-

erately intended to break the strike and to prevent persons

from supporting it by using their law enforcement powers

to this end by instituting these prosecutions in bad faith

and for the purpose of harassment (J.S. App. 51; 55)

2. Factual and Legal Setting of the Use of the

Challenged Statutes.

Two of the challenged statutes are directed squarely at

pure speech and pure assembly. These are Article 482,

Abusive Language, and Article 439, Unlawful Assembly.

The mass picketing statute purports to regulate the

place and manner of expression and of communicative

conduct. Although its title refers to “picketing,” its terms

also apply to any form of “inducing or attempting to in-

duce” and to efforts to “persuade.”

Article 5154f, the secondary picketing, strike, and boy-

cott statute, regulates communicative conduct as well as

other conduct, as will be discussed hereafter.

We start out with the clearly demonstrated and stip-

ulated legality under Texas law of plaintiffs’ efforts to in-

duce farm worker employees of the various growers to

quit their employment and to make common cause with

the union. Article 5153 of Vernon’s Annotated Texas

Statutes, Appendix, infa, p. 57, specifies that’ “It shall

TEVA PREC TN BRN Et

Nea

be lawful” for union members “to induce or attempt to

induce” by peaceful and lawful means any person “to

refuse to enter any pursuit or to quit or relinquish any

employment or pursuit in which such person may then be

engaged.”

The employer growers in this case exercised fully their

right to induce employees to reject the union and continue

to work. Clearly, then, in this ideological and economic

contest the union and its supporters were entitled to use

the full measure of their persuasive powers and organiza-

tional techniques so long as they did so peacefully and

without threats or physical obstruction. Since they vio-

lated no state policy by their efforts, it is also clear that

they were protected by the First Amendment in both

speech and assembly.

The physical scene of this contest was the rural area of

South Texas. The great farming operations conducted by

the growers were substantial in size employing hundreds

of farm workers especially during planting and harvesting

periods. These farm workers were to a large extent hauled

in from distant places by bus loads according to the stip-

ulation. We do not have in this case the usual traffic prob-

lems of urban settings, nor sidewalks, nor narrow streets,

nor other constricted locations which underpin a state in-

terest in maintaining the free flow of pedestrian or auto-

mobile traffic in limited space.

Also, this case does not present excessively large

gatherings of farm workers. The largest grouping dis-

closed by the evidence was composed of the 22 persons

arrested on May 18, 1967, as they stood at the side of

U.S. Highway 83. In this instance the testimony of the

very arresting officer, defendant Ranger Captain Allee,

established that these persons were located at the side

of the road, not near the Trophy Farms gate, and that

these people were arrested solely because they stood

~ around “all in a bunch.” (App. 797-799; 847) It is a fair

statement that the farm workers’ assemblages were mod-

erate in size and small, indeed, in comparison to the work

force to which they directed their lawful inducements.

The district court found open hostility toward the

union and partiality toward the growers on the part of

the defendant peace officers who utilized threats, physical

violence, and open anti-union solicitation along with their

administration of the statutes challenged in this case. It

was entirely natural and easy for the peace officers to

use one or the other of the challenged statutes to supple-

ment their partisan program by finding more than two

persons standing within 50 feet of each other or by con-

cluding that the union members’ solicitations were either

“loud and vociferous” or “foul” or they “disturbed” some

other person in the exercise of his rights.

In every case, the selection of a particular statute as

authority to arrest was entirely optional with the law

officers. In fact, the Attorney General’s Post Hearing

Brief, parts of which are reproduced in the Single Appen-

dix lodged in this Court, outlines the officers’ options on

each occasion as they arrested the farm workers.

The Attorney General advised the court:

1. As to October 12, 1966, when 25 farm workers

were dispersed on U.S. Highway 83 adjacent to the

Rancho Grande Farms, and William Chandler was ar-

rested for disturbing the peace in violation of Article 474

“All persons present could have been charged with

violation of Article 482, Abusive Language, viola-

™

I IESE AE OE RM RIE RET,

Se ne eee ee eae

tion of Articles 434 and 449, Unlawful Assembly.

If charges had been under Articles 455, 464, 466

and under Article 468, all persons present would

have been guilty of rioting as all would be guilty if

anyone present performed an illegal act.”

(Appendix, infra, pp. 57-58.)

2. As to January 26, 1967, when five union sympa-

thizers were arrested for using abusive language on the

banks of the Rio Grande River while soliciting employees

of Trophy Farms to join the union

“ _ _ Plaintiffs could clearly have been charged under

Article 482, Abusive Language; 439, 449, Unlawful

Assembly; 455, 464, 466, 469, rioting statutes; and

5154(d), V.C.S. [mass picketing].”

(Appendix, infra, p. 58.)

3. As to January 26, 1967, when Reverend James

Drake and Gilbert Padilla were arrested for Unlawful

Assembly on account of praying on the courthouse steps,

the Attorney General advised the court that:

“ — the entire crowd could have been arrested and

charged with unlawful assembly under the P.C.,

Articles 439, 449; for Rioting, P.C., Articles 455,

466, for Disturbing the Peace, P.C., Article 482,

Abusive Language.”

(Appendix, infra, p. 58.)

4. As to February 1, 1966, when five Catholic

priests were arrested for disturbing the peace because of

standing on the Bazan property and soliciting La Casita

workers to join the union, the Attorney General advised

the court that:

St eR EERE A

. oy RELATE PEP PTA

> . ¥ POEL ORI. BN LID aT i ‘

saat PARLE ROLL, EG

“ . everyone present could have been charged with

violation of Article 5154(d), Mass Picketing, with

Articles 439 and 449, Unlawful Assembly; and

possibly under Article 482, Abusive Language, as

Father Smith stated that they were calling the

workers ‘scab’ in Spanish in attempting to use the

word that has ‘punch to it and an edge to it.’”

(Appendix, infra, p. 58.)

5. As to May 11, 1967, when Ismael Diaz was

arrested for not having a driver’s license, the Attorney

General, noting a Ranger’s testimony that Diaz was

speeding up and passing a bus containing farm workers

and then slowing it down so that the bus could not

proceed freely, advised the court that:

«A valid charge of Unlawful Assembly, Articles

439 and 449 or Rioting, Article 455 and 464 could

have been filed against all persons in the car.”

(Appendix, infra, p. 59.)

6. As to May 18, 1967, when about 22 pickets were

arrested at the side of U.S. Highway 83 for mass picket-

ing because they stood around “all in a bunch,” the

Attorney General advised the court that:

“Charges could have likewise been filed for rioting

and unlawful assembly.”

(Appendix, infra, p. 59.)

7. As to the arrests on May 26, 1967, of 14 pickets

in 2 groups, the Attorney General advised the court that:

“At the time and place in question both those

initially arrested and those arrested in the secondary

- PIA LE BAD

group were clearly guilty of Unlawful Assembly

under Articles 439 and 449 of the Penal Code and

of Rioting under Articles 455, 464, and 466... .

It is interesting to note that in spite of protestations

of innocence, each of the persons arrested had parti-

cipated in the union activity, were away from their

homes with the intention of aiding and lending sup-

port to the unlawful assembly and riot at Mission,

Texas. It is immaterial under State law whether or

not they were actually standing on the railroad

tracks themselves or merely near to the tracks or

even if they were somewhere else if they were or

had been a part of this unlawful assembly.”

(Appendix, infra, p. 59.)

8. As to May 31, 1967, when 13 persons on the

Solis property were arrested for mass picketing, 10 of

them because they were bunched up under the shade of

a tree, the Attorney General advised the court that:

“.. . In addition on this occasion, participants could

have been charged with violation of Articles 439,

449, Unlawful Assembly; Articles 474, Disturbing

the Peace; and Article 482, Abusive Language,

Articles 455, 464, or 466 of the rioting statute.”

(Appendix, infra, p. 59.)

Coming as they did from the Attorney General of

Texas after full trial on the merits, the foregoing com-

ments illustrate the hapless position of the plaintiff farm

workers union and its supporters. Knowing the hostility

of the defendant officers and the extent of the official

lawlessness to which they were willing to resort, plain-

tiffs had no alternative except to challenge the statutes

which the defendant law officers had used because they

were susceptible to misuse.

DELS CAB OLLI SING A AS ON SOR NS he eB ee eat

va? ' SASL. SA ESULE LG ERY § Rint eI est Sate Dee PEL AOER LEME ORE EAA ET LILY PLR REAL BE

PPI a EP TE NER

There is no element of precipitate. challenge by these

plaintiffs nor precipitate adjudication of facial unconsti-

tutionality by the district court. Plaintiffs were set upon

and harassed for one long year, the entire duration of

their organizing effort, and were dispersed or arrested

and charged (but never tried) under the statutes here

challenged. Whatever hesitation the Supreme Court may

feel in the average case where a declaration of facial

unconstitutionality is requested, this is a case where this

Court is not called upon to make judicial prediction or

judicial assumption that these statutes’ very existence

may cause persons not before the Court to refrain from

constitutionally protected speech or expression. This is

a case in which it is a proven fact that these statutes in

the hands of hostile law officers were actually used to

frustrate constitutionally protected speech and assembly

to a degree that the union’s organizing efforts were

crushed.

In this respect, this particular case vindicates the

Supreme Court’s special concern for the protection of

First Amendment rights. By their manipulation of the

challenged statutes and their other conduct the defend-

ant officers deprived the plaintiffs of their power of co-

hesion. The right of every individual to speak and meet

requires not only opportunity for him but also freedom

of others to hear or join with him without fear. (J.S.

App. 53)

3. Mass Picketing Statute.

Section 1 of Article 5154(d) uses the term “mass

picketing,” but this is another of those mere labels of

state law” which tends to disguise interference with inno-

cent First Amendment communication and association.

DR TREE ES LCE RY RE REARS SPL AI ND

New York Times v. Sullivan, 376 U.S. 254, 269 (1964).

Far from addressing itself to “mass” assembly of persons,

it specifies that in every case persons who communicate

by picketing or who assemble to induce must not “at any

time” permit themselves to be closer to each other than

two every fifty feet. This applies to every time and every

place and without consideration of the surrounding physi-

cal conditions or the size and nature of the target opera-

tions. The statutory terms “picket” and “picketing” in-

clude every person who acts for an organization who is

present for the purpose of inducement, observation, or

persuasion.

This numbers and distance formula is thus not limited

to those who carry picket signs but includes everyone

who has a sufficient interest in the matter to be present

to see what is going on.

The statute also applies its formula everywhere in the

state including both public and private property, and it

was so enforced in this case.

The bare fact of the physical presence of more than

two persons within fifty feet violates the statute without

reference to actual obstruction, whether reasonable or

unreasonable, and the statute was so applied to these

farm workers. Defendant Ranger Captain Allee testified

that this was the policy of enforcement applicable to all

cases.

Violation of the statute by any individual is punish-

able by a fine of $25 to $500 or imprisonment up to 90

days, or both. “Each separate act of violation shall con-

stitute a separate offense.”

True, reasonable regulations as to time, place, and .

manner for expressive activity are constitutionally appro-

CORE sy RR REN tt mi iQ

f PEERS geet: if DOE Gy IBLF eS yt a

oe a rae SPONSE TNT YE OS EI RE AG BBE NS: ES er

priate even under the First Amendment, but “The nature

of a place, ‘the pattern of its normal activities, dictates

the kinds of regulations of time, place, and manner that are

reasonable.’ ” Grayned v. City of Rockford, 408 U.S. 104

(1972). In Grayned this Gourt said:

“The crucial question is whether the manner of

expression is basically incompatible with the normal

activity of a particular place at a particular time.

Our cases make clear that in assessing the reason-

ableness of regulation, we must weigh heavily the

fact that communication is involved; the regulation

must be narrowly tailored to further the State’s

legitimate interest.”

We will not burden this Court with the engaging specu-

lation as to which of three persons is the guilty one if

the three are found within a space of fifty feet. This and

other absurd questions realistically arise under the statute.

And because of the limitless reach of the statute and its

application to all interested persons in the vicinity, we

have come in this case to the absurdity of the arrest of

10 farm workers as they lolled in the shade of a tree in

the woods and another 22 because they were bunched

up. on the side of the road on U.S. Highway 83, all

without reference to any actual obstruction of anyone.

Human beings are gregarious by nature. Gathering

together in moderate numbers and working together co-

operatively, they can and do inspire and strengthen each

other and induce confidence in those whom they solicit

to join. Every political candidate knows that a good

crowd at a rally or in a parade will help him look like

a winner. There is no rational reason of legitimate state

interest why union supporters pursuing a lawful objective

| SOEs 72 eemraarazia a er eNpER a OER hE

of solicitation must be mandatorially spaced out in every

case to satisfy this statutory formula.

In terms of the “crucial question” posed in Grayned,

the peaceful expression of their views by these farm

workers assembled in numbers of more than two every

fifty feet is not basically incompatible with any legitimate

protection which the growers may demand or the state

may bestow. To the contrary, the imposition of the num-

bers and distance formula of the statute in this case de-

bases and impairs the credibility of the union’s efforts

and unfairly tips the scales of persuasion against one

side of the controversy.

Many other cases can be visualized where the same

unfair result would follow. To be sure, cases can also

be visualized where a limitation of pickets to two every:

fifty feet might be appropriate. The vice in this statute

is its over-breadth in providing a restrictive mechanical

formula to fit all situations. ©

The second respect in which the statute is unconstitu-

tional is its violation of the Equal Protection Clause of

the Fourteenth Amendment. The offense of mass picket-

ing can only be committed by pickets or persons who

are “stationed by or act for or in behalf of any organiza-

tion.” The statutory definitions of “picket” and “picket-

ing” make it clear that persons who are not stationed by

or acting for or in behalf of an “organization” may gather

and picket without reference to the numbers and distance

or the obstruction formula of Article 5154(d). Both the

50-foot phase and the obstruction phase of the statute

incorporate these statutory definitions:

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

clude any persons stationed by or acting for and in

ie Fi OTIS! 2, Here

behalf of any organization for the purpose of induc-

ing, or attempting to induce, anyone not to enter

the premises in question or to observe the premises

so as to ascertain who enters or patronizes the

same .. .” etc. (Emphasis added)

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

include the stationing or posting of one’s persons or

of others for and in behalf of any organization to

induce anyone not to enter the premises in question,

or to observe so as to ascertain who enters . . .” etc.

(Emphasis added)

A similar distinction in the regulation of the place and

manner picketing was recently declared invalid. Police

Department of City of Chicago v. Mosley, 408 U.S. 92

(1972); Grayned v. City of Rockford, 408 U.S. 104

(1972). In Mosley the court held it to be unconstitu-

tional under the Equal Protection Clause to outlaw all

picketing within 150 feet of the school, except labor

picketing. The reasoning of Mosely is fully applicable

here. Discrimination among pickets which is based on

whether they represent an organization is no more

“tailored to a substantial government interest,” 408 U.S.

at p. 102, than discrimination based ‘upon “the contents

of their expression.” Id. Indeed, the distinction which

the statute draws penalizes “the right of individuals to

associate to further their personal beliefs.” Healy v.

James, 408 U.S. 169, 181 (1972). Also rejected in

Mosley was. a state argument to the effect that non-

labor picketing, as a class, is more prone to produce vio-

lence than labor picketing. The court responded that the

Equal Protection Clause requires that statutes affecting

First Amendment interests be narrowly tailored to legiti-

mate objectives and that abuse of picketing must be dealt

waste Maa) col ta

with even-handedly regardless of the subject matter of

the picketing.

The constitutionality of the Article 5154(f) was chal-

lenged on this ground by plaintiffs by pleading and by

pretrial memorandum. The district court did not specifi-

cally mention this phase of the case, no deubt because

the decision below was handed down on the same day that

the Supreme Court decided Mosley and Grayned on June

26, 1972. Nevertheless, the unconstitutionality of the

statute on this ground is clear.

If the Supreme Court sustains the Equal Protection

argument and the applicability of the Grayned and

Mosley decisions, supra, the point is also applicable to

the prohibition of “any character of obstruction” phase

of the statute. Mass picketing is defined to include any

form of picketing which constitutes or forms “any charac-

ter of obstacle” by obstructing free ingress or egress by

the persons of the pickets. The District Court construed

the statute to mean “once a picket comes within the

statutory definition, it does not matter whether the picket-

ing is a reasonable or unreasonable obstacle to access, it

is forbidden. Thegstatute does not permit the courts to

relax its strictures and decline to issue injunctions

where picketing does not present an unreasonable barrier

to access.” (J.S. App. 63). On the other hand, the Attor-

ney General, at pages 24 and 25 of Appellants’ Brief,

construes the statute to apply only to “actual physical

obstruction.” In this respect, the Attorney General says,

the Texas statute is more narrow than the statute upheld

by this Court in Cameron v. Johnson, 390 U.S. 611

(1968), which invdlved a Mississippi statute which pro-

hibited picketing “in such a manner as to obstruct

it te ee

or unreasonably interfere with free ingress or egress . . .”

to the courthouse or other public buildings.

Appellees readily concede under the authority of Cam-

eron v. Johnson that the Texas statute would not be over-

broad if it were construed to prohibit obstacles which are

unreasonable. Such a construction of this particular statute

would probably be an excessive indulgence, however, since

the statute also prohibits pickets in excess of two every 50

feet without reference to the existence of any kind of ob-

stacle, reasonable or unreasonable, and without reference

to the reasonableness of the interference which results from

the presence of the pickets. It was actually so applied in

this case by the arrests in the woods and on the side of a

public highway.

Every street intersection is the scene of continual inter-

ference and obstruction between pedestrians and auto-

mobile drivers who momentarily obstruct each other on

sidewalk and street long enough to move on. No one

would term this temporary blocking to be unreasonable.

Just so, peaceful pickets and persons moving in and out

of picketed premises will inevitably need to accommodate

for each other and momentary obstruction or trivial inter-

ference as one or the other moves out of the way is not

unreasonable.

This was the exact situation before the Supreme Court

in Cameron v. Johnson, supra. In Footnotes 1 and 4 of

the dissenting opinion of Mr. Justice Fortas there is a

description of this trivial interference which might occur

from the presence of pickets at a point of access to

premises. We understand that the Mississippi statute was

upheld because it prevented “unreasonable” interference

and not because Mississippi could lawfully prohibit peace-

ful picketing which has only trivial effect in terms of

OLA LE EN NAR NO NARI SP NAMEN AIRE HOOT AEE 4:

interference. “. . . this statute does not prohibit picket-

ing . . . unless engaged in in a manner which obstructs

or unreasonably interferes with ingress or egress to or

from the courthouse.” 390 U.S. p. 617.

In this connection, the District Court upheld the con-

stitutionality of Article 784 of the “Texas Penal Code

which prohibits obstructing public streets (J.S. App.

64-65). The court considered the word, “obstruct” in

that statute to mean an actual prevention or substantial

interference with traffic.

The Supreme Court is respectfully referred to the four

exhibits reproduced at pages 18 and 19 of Appellees’

Motion to Affirm. The exhibits there show the actual

rural scenes where the picketing took place in this case

and where arrests were made. Exhibits 7.17F and 7.18L

are pictures taken by the Texas Rangers themselves at

the scene where they administered the Mass Picketing

statute by arrests.

4. Unlawful Assembly Statute.

The district court’s demonstration of the unconstitu-

tionality of Texas Penal Code Article 439, the Unlawful

Assembly statute, is at J.S. App. 74-77.

At. pp. 33-37 of Appellant’s Brief is Appellants’ argu-

ment ifi support of this statute, which is somewhat inept

because it seems to say that Article 439 cannot stand

alone. It can, however, by the express provisions of Texas

/Penal Code Article 452 which is set out below. In any

case, the district court assumed for purposes of discussion

that the “right” to be protected from deprival or disturb-

ance is one which the State may legitimately protect

(J.S. App. 75).

Wes bate eee

Article 439 of the Texas Penal Code, Unlawful As-

sembly, provides 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

ar offense or illegally to deprive any person of any

right or to disturb him in the enjoyment thereof.

Article 452 provides:

If the purpose of the unlawful assembly be to

effect any illegal object other than those mentioned

in the preceding articles of this chapter, all persons

engaged therein shall be fined not more than two

hundred dollars.

This ancient statute, enacted in 1879, is not “directed

to inciting or producing imminent lawless action” by

advocacy but also encompasses (1) guilt by association,

(2) abstract advocacy, (3) intent to aid “in any manner”

the deprivation of any person of any right illegally, and

(4) finally, the intent to aid in any manner the disturb-

ance of any person in the enjoyment of any right.

The statute sdoes not square with First Amendment

protection of the right of assembly. Brandenburg v. Ohio,

395 U.S. 444 (1969); Healy v. James, 408 U.S. 169

(1972).

Texas courts have not limited the statute to hard core

or lawless action. For example, in Briscoe v. State, 341

S.W.2d 432 (1961), the court held that the indictment

should specify whether the offense involved an intent to

use violence to disturb the yictim or whether it involved

an intent to use means other than violence to disturb

the victim in his rights.

de SLI bie W402 Bs

° FE? OM Sg Dy. a pe on

SR IERIE AINE MS

Interestingly, Appellants’ Brief at page 34 makes the

following statement:

“Thus this portion of the statute makes criminal

a conspiracy to do something that the law of the

State, including the civil. statutes and the common

law, prohibits.”

Literally, the statute does, indeed, define Unlawful

Assembly to include an intent of three or more people to

aid each other to disturb some person in the enjoyment

of one of his common law rights.

Concerted peaceful activities are protected by the First

Amendment even if they do “disturb” others in the enjoy-

ment of their rights. In Organization for a Better Austin

v. Keefe, 402 U.S. 415 (1971), this Court reversed an

Illinois injunction in favor of a real estate broker against

. irate citizens who vigorously advertised and condemned

the broker’s business practices in the area of “block bust-

ing.” The opinion of Chief Justice Burger, 402 US. at

419, said:

“ . . In sustaining the injunction, however, the Ap-

pellate Court was apparently of the view that peti-

tioners’ purpose in distributing their literature was

not to inform the public, but to ‘force’ respondent

to sign a no-solicitation agreement. The claim that

the expressions were intended to exercise a coercive

impact on respondents does not remove them from

the reach of the First Amendment. Petitioners plain-

ly intended to influence respondent’s conduct by

their activities; this is not fundamentally different

from the function of a newspaper. See Schneider v

State, supra; Thornhill v. Alabama, 310 U.S. 88,

60 S.Ct. 736, 84 L.Ed. 1093 (1940). Petitoners

were engaged openly and vigorously in making the

public aware of respondent’s real estate practices.

Those practices were offensive to them, as the views

and practices of petitioners are no doubt offensive

to others. But so long as the means are peaceful, the

communication need not meet standards of accept-

ability.”

It goes wtihout saying under this and other authority

that peaceful assembly to protest or change the practices

of others may not be prohibited on the sole ground that

they do disturb the enjoymena of rights by these others.

In this case Reverend James Drake and Gilbert Padilla

were arrested for unlawful assembly for praying on the

courthouse steps on January 26, 1967. It was stipulated

that the courthouse property had been used in the past

for nighttime rallies of politicians and for dances. No

Texas statute prohibited the presence of these men at

the scene of their prayers. The disturbance of the “right”

of another is easy to supply—perhaps the right of a

janitor, a jailer, or an atheist enjoying his peace on the

grounds. .

Again on May 26, 1967, ten union sympathizers at

one time and four other union sympathizers at a later

time were arrested for unlawful assembly on the main

street of Mission, Texas. The first group of ten had the

intent to aid each other in picketing although the picket-

ing had not started. The second group of four arrived

later with the intent to aid the first ten, although the first

ten had already been taken to jail. The “offense” or the

“disturbance of a right” could be supplied by the Texas

secondary boycott statute. That statute makes it a crime

for any two persons to plan to cause injury to another

“by picketing.” Or, the offense could be supplied by an-

Kbit SSE Y ED BEND Wo ru

other provision of that statute which prohibits the plan

of any two persons to cause injury to another by inter-

fering with the free flow of commerce.

Again on February 1, 1967, five Catholic priests as-

sembled in a wooded area on private property adjacent

to La Casita Farms. There they solicited the workers in

the field to join the union and were promptly arrested

for disturbing the peace. As pointed out, the Attorney

General of Texas advised the court in its post-trial memo-

randum that “everyone present could have been charged

with the violation of Article 5154(d), mass picketing,

with Articles 439 and 449, unlawful assembly, and possi-

bly under Article 483, abusive language, as Father Smith

stated that they were calling the workers ‘scab’ in Spanish

in attempting to use the word that has punch to it and

an edge on it.” (See Appendix, infra, p. 38)

This unlawful assembly statute in addition © its over-

breadth lends itself to all manner of unpredictable and

selective enforcement as the Attorney General clearly

demonstrated to the district court. (See pp. 25 et seq.,

supra. )

5. Abusive Language Statute.

The district court’s demonstration of the unconstitu-

tionality of Texas Penal Code Article 482 is at J.S. App.

72-74. The statute provides:

“Any person who shall in the presence or hearing

of another curse or abuse such person, or use any

violently abusive language to such person concern-

ing 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 hun-

dred dollars.”

In all material respects this statute is identical to the

Georgia statute in Gooding v. Wilson, 405 U.S. 518

(1972).

At Footnote 22 (J.S. App. p. 83) the district court

reviewed Texas decisions to show that this statute has

not been limited to the kind of “fighting words” contem-

plated by Chaplinsky v. New Hampshire, 315 U.S. 568

(1942). Appellants’ Brief does not even address itself

to the cases discussed in Footnote 22 (J.S. App. 22).

The constitutional posture of these plaintiffs is far

superior, however, to that of the defendant in Gooding v.

Wilson, supra. In this case on January 26, 1967, five

farm workers standing on the banks of the Rio Grande

River were addressing themselves to a large number f

workers in the fields by means of a loudspeaker. Deputy

Sheriff Roberto Pena arrested all five for abusive language

and confiscated their loudspeaker until the next day.

We do not have here the individual, face-to-face de-

livery of severly insulting language which Chaplinsky

contemplates. To the contrary, there was distance and

also the impersonal aspect stemming from the group

attitude of the union supporters on the one hand in con-

trast to the group indifference or rejection of their cause

by the workers on the other.

The Texas court applies the abusive language statute

in cases other than direct personal abuse by one person

to another of a provocative kind which will likely provoke

a breach of the peace in the circumstances. In addition to

the cases cited in Footnote 22 of the district court’s opin-

ion, the Texas court has held that the abusive language

statute was violated when the defendant on his own prem-

ises shouted to someone in his house: “Call Mitchell,

these god damned bastards got guns.” These remarks

were not even addressed to the two law officers referred to

who were crouched behind vehicles parked in the defend-

ant’s driveway. Duke v. State, 328 S.W.2d 189 (1959).

Under this interpretation, the statute is violated even

though the person referred to would not commit a re-

sponsive breach of the peace because of official position

and responsibility. As in Gooding v. Wilson; supra, this

leaves the standard of guilt to the creation of the trier of

fact in each case.

The Texas Abusive Language Statute is a natural im-

plement for hostile law officers to utilize oppressively in

the group animosities which inhere in labor disputes. Un-

friendly law officers can be quick to conclude that the

persuasions, arguments and appellations of the union sup-

porters are “abusive” to a degree which might be reason-

ably calculated to provoke a responsive breach of the

peace by the nonstrikers. As previously pointed out, at

or about the same time one of five Catholic priests used

the Spanish word “esquirol” which literally means “squir-

rel” but is the general equivalent of the English word

“scab” in the context of a labor dispute. The Attorney

General expressly advised the Court that the abusive

language statute was violated by the use of this word

on the occasion in question. (Supra, p. 27.)

6. Secondary Strike and Boycott Statute.

Under Article 5154f, defendant officers performed the

following arrests:

1. 10 persons arrested and charged with aiding and

abetting a strike of two members of a train crew on

November 3, 1966, by picketing on a public highway ad-

jacent to a La Casita Farms shed.

2. 14 persons arrested in two groups at Mission, Texas,

on May 26, 1967, and charged with secondary picket-

ing and secondary boycott on account, of picketing at the

intersection of Conway Street, the main street of Mis-

sion, Texas, and a Missouri Pacific Railroad track.

3. 4 persons arrested on June 1, 1967, for secondary

picketing near the intersection of the Missouri Pacific

Railroad track and Conwey street in Mission, Texas.

4. 3 persons arrested on May 31, 1967, for secondary

picketing on a public road adjacent to a La Casita shed

(the same location as the first 10 arrests).

Article 5154f was substantially, invalidated on con-

stitutional grounds by a long series-of Texas cases which

culminated in the decision of the Texas Supreme Court

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

(1956). The manipulation by the defendant law officers

of this invalidated statute was and is the hallmark of bad

faith arrests and charges. Appellees submit that the 10

arrests for picketing on November 3, 1966, and the 3

arrests for picketing on June 1, 1967, were inexcusable

and substantially support the other proof of harassment

presented by plaintiffs.

Article 5154f prohibits (1) secondary picketing, (2)

secondary striking, and (3) secondary boycott. The con-

stitutional difficulty with the secondary picketing and

secondary striking provisions is their artificial, mechanical,

and over-broad proscription of peaceful picketing and

other legitimate activities. In both cases the statute re-

quires a “labor dispute” as a condition of legality. The

term “labor dispute” requires a controversy between an

employer and the majority of his employees.

Accordingly, the secondary picketing provision pro-

hibits peaceful picketing for perfectly lawful purposes if

a pain Ma.

NE RG pl ah TAT AR CR RAILS

PRD

the picketers are fewer in number than a majority of the

employer's employees. This provision was declared un-

constitutional in several decisions of the Texas Supreme

Court. Ex parte Henry, 215 S.W.2d 588 (1948);

1.U:0.E. v. Cox, 219 S.W.2d 787 (1949); and General

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

In these cases the Texas Supreme Court held squarely

that peaceful primary picketing for a lawful purpose is

constitutionally privileged even though only a minority of

the employer's employees may engage in the picketing.

The court also held squarely that it was a constitutional

privilege of such picketers to endeavor to enlist the

sympathy of others and to induce them not to cross

their picket line. Indeed, in Exparte Henry, the primary

picketing caused a railroad crew to decline to operate

their train into the picketed premises. In so many words

the court held at 215 S.W.2d, p. 595:

“In this connection, it seems to be the position of

respondents that since the employees of the railways

would not cross the picket line manned by relators,

the picketing and the consequent refusal of the rail-

way employees to serve the employer’s plant consti-

tuted such concerted action between relators and

those employees as to amount to secondary picketing

and boycotting and conspiracy in restraint of trade,

as denounced by our statutes. Under the decisions of

the Supreme Court already cited and discussed,

picketing does not offend against the statutes merely

because third parties who come to the area of the

dispute may prove sympathetic to one disputant

rather than to the other. We overrule the point.”

(Emphasis added)

This was the clear and undoubted state of the law as

to secondary picketing and secondary boycott phases of

Article 5154f from 1948 until the defendant officers filed

their criminal charges on November 9, 1966, in an effort

to harass these’ farm workers in their peaceful primary

picketing which was strictly consonant with Texas public

policy. As stated, the secondary picketing provision of

Article 5154f had already been declared unconstitutional

in the cited cases. In an effort to circumvent these de-

cisions, defendants arrested and charged the farm work-

ers with aiding and abetting a “secondary strike.”

The statute says that a lawful secondary strike re-

quires a dispute which involves a majority of an em-

ployer’s employees. When two employees of the Missouri

Pacific Railroad respected the picket line as they ap-

proached the La Casita shed they committed the offense

of “secondary strike” in that “no labor dispute” existed

between Missouri Pacific and its employees. In short,

these two employees were not a majority of the rail-

road’s employees and neither was the labor dispute their

own.

So, the farm workers were arrested and charged with

aiding and abetting a secondary strike by the two mem-

bers of the railroad crew (although, of course, the latter’

were not charged with anything).

As interpreted and applied by the defendant peace offi-

cers, the secondary striking provision of Article 5154f

is clearly unconstitutional as the cited Texas cases demon-

strate. Although the literal language of the statute justi-

fies the arrest, only the most perversely partisan officials

would try to evade the constitutional principle declared

by the Texas Supreme Court that lawful primary picketing

does not become unlawful merely, because third parties

who come to the area of the dispute may prove sympa-

thetic to one disputant rather than the other.

This brings us to the secondary boycott phase of the

statute which was invoked against 14 persons at Mission,

Texas, on May 26, 1967.

The secondary boycott section prohibits any person

from “aiding or abetting” a secondary boycott. In turn,

a secondary boycott includes any combination, plan,

agreement, or compact entered into or any concerted ac-

tion by two or more persons “to cause injury or damage”

“to another for whom they are not employees by:

1. Withholding patronage, labor or other bene-

ficial business intercourse.

2. Picketing.

* * *

4. Instigating or fomenting a strike.

5. Interfering with or attempting to prevent the

free flow of commerce.

6. By any other means 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.

The Texas bible of secondary picketing and boycott

law is another decision of the Texas Supreme Court,

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

(1956). In that case the Texas Supreme Court upheld

the legality of ambulatory picketing in certain circum-

stances. It also laid down the public policy of Texas relative

to picketing which affects neutrals or causes employees

of neutral employers to cease work. In that case Wamix

employes followed their employer’s concrete hauler and

mixer trucks to the premises of various construction com-

panies and by their picketing caused employees of neutral

employers to engage in work stoppages.

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A I OK MEG rca ap DERN EIT HAE GPITS RU RE SIO NE ER te. ERAS, HR eat ee

Two lower courts had relied upon Article 5154f to

enjoin the ambulatory picketing. The Texas Supreme

Court, however, declined to accept these holdings. To the

contrary, it said concerning Article 5154f the following:

“Insofar as that article seeks to interdict picketing

of all employers except those with whom a labor

dispute exists on the part of their own employees,

it offends against the Fourteenth Amendment and

is unconstitutional. Construction and General Labor

Union v. Stephenson, 148 Tex. 434, 225 S.W.2d

958; American Federation of Labor v. Swing, 312

U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855. If picketing

cannot be limited to an employer who has a labor

dispute with his employees it necessarily cannot be

limited to the premises of an employer.”

Turning its back on the statute, therefore, the court

then went to the common law to determine if the picket-

ing of Wamix trucks was an incident of a secondary boy-

cott at common law, whether it could be enjoined as such,

and, finally, under what circumstances. The conclusion of

the Texas court was stated at 295 S.W.2d at 884 as fol-

lows:

“From the foregoing discussion we conclude that

while secondary picketing as defined in Cain, Brog-

den & Cain v. Local Union No. 47, etc., supra, is

contrary to the public policy of this state and subject

to judicial restraint, not all picketing which has a

secondary effect will be regarded as proscribed by

the public policy; that two important factors in de-

termining whether picketing in a particular case be-

cause of its secondary effect on neutral employers is

proscribed by the public policy are: (a) the good

faith intent of the union or striking employees in

picketing a secondary situs to exert pressure only on

the primary employer, to which effort the effect on

neutral employers is purely incidental, and (b) the

a A ANT. HC, RON IRIN SP ” =

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balancing of relative rights of all affected parties

against the harm which would result to the other

parties and to the public from permitting or restrain-

ing the picketing. In a hearing on a temporary in-

junction these matters will ordinarily address them-

selves to the sound discretion of the trial judge and

only rarely may the issue be decided as a law ques-

tion. If the Court concludes, upon evidence of pro-

bative force, that the real purpose of picketing at a

secondary situs is to exert economic pressure on a

neutral and it has that effect there will be no need

to consider the second factor.”

One of the fact findings in Wamix was that the ambu-

latory picketing was conducted for the purpose of com-

pelling the customers of Wamix to cease doing business

with it. Another finding was that the union’s purpose was

to induce employees of neutral employers to cease work

and thereby to exert coercive pressure on neutral employ-

ers. 295 S.W.2d at 884. On this phase of the case the

Texas court expressly refused to hold that all picketing

which results in incidental pressure on and harm to a

neutral may be enjoined. It also refused to hold that neutrals

must be protected from the harmful effects of picketing in

all instances and under all circumstances. 295 S.W.2d-at

882. Accordingly, the public policy of Texas does not

prohibit all ambulatory picketing, and it does not inval-

idate_all picketing which causes harm or damage to a

neutral. The critical test is, first, whether the union’s pur-

pose to exert pressure is directed to the primary employer

and, secondly, it turns on a balancing of the relative rights

of each affected party against harm or damage to the other

party and to the public from permitting or restraining the

picketing.

Wamix was not an isolated case. It was the studied cul-

mination. of a substantial line of Texas Supreme Court

SOREL ER AE TLE RRL RT EARLE: 8 ATL Slr ARS

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PETER RAS 2

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cases which found Article 5154f a square peg for a round

hole.

Cain, Brogden & Cain v. Local Union No. 47, 285 S.W.

2d 942 (1956);

General Labor Union v. Stephenson, 225 S.W.2d 958

(1950), supra;

1.U.0.E. v. Cox, 219 S.W.2d 787 (1949), supra;

Ex parte Henry, 215 S.W.2d 588 (1948), supra.

As to both secondary picketing and secondary boycott,

Courts of Civil Appeals had reached the same result in a

variety of secondary situations: Missouri-Pacific Freight

Transport Co. v. International Brotherhood of Teamsters,

220 S.W.2d 219, ref. n.r.e.; Texas State Optical Co. v.

Optical Workers Union, 257 S.W.2d 493, 500, ref. n.r.e.;

Teamsters v. Cain, Brogden & Cain, 272 S.W.2d 544, re-

versed on common law grounds only, 285 S.W.2d 942,

supra.

On the other hand, where the secondary boycott phase

of 5154f (Section 2,e) was upheld and applied by a Court

of Civil Appeals, Construction Union v. Stephenson, 221

S.W.2d 375, the Texas Supreme Court pointedly and ex-

pressly declined to affirm on the basis of this section. It

modified and affirmed an injunction on other and quite

different grounds. General Labor Union v. Stephenson,

225 S.W.2d 958, supra.

Also, Wamix resorted to the common law and avoided

reliance upon the statute even though a recent white horse

case by the Dallas Court of Civil Appeals had applied

Article 5154f to ambulatory picketing of concrete trucks.

General Drivers, etc. v. Dallas County Const. Employers’

Assn., 246 §.W.2d 677 (1951), ref. n.r.e. The latter case

SFP IEE MP TAT SIS SE EME IN EINECS BRR he ON

as wre we eee os Re

MARY RRO Se ae

was a 2-1 decision upholding the constitutionality and ap-

plication of the secondary boycott and secondary picket-

ing sections of Article 5154f to a fact situation identical

to Wamix. While the Texas Supreme Court simply ignored

the earlier case in its opinion, there is no doubt that

Wamix is.a studied refusal to accept the holding of the

earlier case which, incidentally, also involved, in part,

picketing at the same Wamix Company in Dallas. In both

cases the same union counsel participated.

We have belabored the Texas cases for the purpose of

demonstrating to this Court that Texas courts have clearly

declined to perform plastic surgery on Article 5154f or to

limit or construe its literal language in ways which will

conform to First Amendment principles. Rather, the Tex-

as courts have accepted the fact that the artificial and

mechanical tests of the statute are fatal as written. They

have reverted, therefore, to common law principles of

secondary boycott so as to regulate undesirable activity

by a nice balancing process in the equity court.

It is not the function of this Supreme Court of the

United States to make or anticipate adjustments in the

construction of state statutes when it is clearly demon-

strated that state courts have adopted a different course

of adjudication. State courts are as free to discard their

over-broad statutes as they are to preserve them through

plastic surgery.

The dragnet provisions of the secondary boycott phase

of Article 5154f cannot exist contemporaneously with the

Wamix decision. The refusal of the Wamix court to follow

the earlier application of the secondary boycott phase of

Article 5154f by the Dallas Court of Civil Appeals in an

identical fact situation was striking. The same sharp re-

fusal had occurred earlier in the Stephenson case, supra,

_where the intermediate appellate court had rested its de-

cision squarely upon the same provision.

The statute prohibits any person from “aiding or abet-

ting” a secondary boycott. It then defines a secondary boy-

cott to include every plan or concert of action by two or

more persons to Cause injury or damage to any other per-

son for whom they are not employees by various methods.

Subparagraph (2) (the most conspicuously absurd pro-

vision) literally specifies the method of “picketing.” This

provision literally outlaws all picketing which may cause

harm to another regardless of the circumstances or the

purpose of picketing. This is Thornhill.

Subparagraph (1) literally specifies any plan to with-

hold patronage, labor or other beneficial business inter-

course is unlawful (regardless of circumstance or motive).

This literally means that if two persons act together to

respect a picket line they commit a secondary boycott,

and the picketer would be guilty of aiding and abetting

them.

Subparagraph (3) was not ruled upon or involved in

this case.

Subparagraph (4) literally specifies any plan by two or

more persons to cause injury to another by instigating or

fomenting a strike is illegal (regardless of circumstances

or motive). This means that two pickets acting together

commit secondary boycott if they induce another not to

cross their primary picket line or if they induce other

primary employees to join them and thereby harm or

damage the other employer.

Subparagraph (5) specifies any plan of two persons to

cause injury to another by interfering with the free flow

SR iterates: PE EEN GLEE PLANE EEE OIL LE IE, EN BS RO ERS A: #84 9y REPOS MS SORA

of commerce is illegal (without reference to the circum-

stances or motive). This means that any two pickets com-

mit secondary boycott if their primary picketing induces

others not to deliver or trade through the picket line.

Subparagraph (6) specifies “any other means” of caus-

ing or attempting to cause one employer to inflict damage

to another (without reference to circumstances or motive).

Literally this prohibits two pickets from peacefully solicit-

ing an employer not to cross a picket line to make deliv-

eries to another employer.

In all cases, any degree of injury or harm, however

slight, suffices to make the provision applicable. These

dragnet terms do not square with the reasonable precision

of regulation which is the touchstone in the First Amend-

ment area. In Subparagraph 2 the statute aims expressly

at picketing and in other provisions it aims directly at the

traditional inducements and persuasions which flow from

picketing.

With these statutory provisions and the Texas decisions

before it, the District Court correctly concluded that the

statute makes irrelevant the purpose of the picketing and

in sweeping terms simply prohibits anyone from aiding in

harming another. Also correctly, the District Court found

the statute unconstitutional under the principles enunciat-

ed in International Brotherhood of Teamsters v. Vogt, 354

U.S. 284 (1957). Although there is a broad field in which

a state may prohibit picketing with a purpose of violating

some public policy, it may not prohibit picketing for no

reason at all other than the fact that public responses to

that picketing may harm someone.

In the very last paragraph of the Vogt opinion the Su-

preme Court reminded again (354 U.S. pp. 294-295):

“Of course, the mere fact that there is ‘picketing’

does not automatically justify its restraint without an

investigation into its conduct and purposes. State

courts, no more than state legislatures, can enact

blanket prohibitions against picketing. Thornhill v.

Alabama and A.F.L. v. Swing, supra. In this case,

the circumstances set forth in the opinion of the Wis-

consin Supreme Court afford a rational basis for the

inference it drew concerning the purpose of the pick-

eting. No question was raised here concerning the

breadth of the injunction, but of course its terms

must be read in the light of the opinion of the Wis-

consin Supreme Court, which justified it on the

ground that the picketing was for the purpose of

coercing the employer to coerce his employees.”

Fitting in with the principles of Vogt is Organization

for a Better Austin v. Keefe, supra. “The claim that the

expressions were intended to exercise a coercive impact

on respondent does not remove them from the reach of

the First Amendment.” 402 U.S. at 419. Under these

authorities, the dragnet provisions of the Secondary Boy-

cott phase of Article 5154(f) cannot stand since they

prohibit solely because there is damage or harm without

reference to the purposes or circumstances which may

be involved in the case.

Of course, the Supreme Court will understand that the

judgment in this case does not alter the law of Texas as

to secondary picketing, secondary striking, or secondary

boycott. It merely stops the defendant officers from ar-

resting under this obsolete and invalidated statute.

Plaintiffs did not ask for much in this instance. Wamix

is a demanding decision, the virtue of which is not that it

freely allows secondary pressures but that it provides for

hearings and for balancing to be done by equity courts

to protect all parties and the public. The real relief which

oe a

plaintiffs obtained was rescue from erratic arrests and

prosecution at the hands of unfriendly law officers.

Any public official who desires to seek an elucidating

and limiting construction to revive and save portions of

Article 5154f can institute suit for injunction under Sec-

tion 5 of Article 5154f. So can any private party under

Section 4.

Also, we may surmise that the Texas Supreme Court

might have reshaped the statute by limiting construction

or by plastic surgery. As the matter now stands, however,

we have here a case of a generalized over-broad statute

applied to a constitutionally protected situation. “[A] gen-

erally worded statute which is construed to punish conduct

which cannot constitutionally be punished is unconstitu-

tionally vague to the extent that it fails to give adequate

warning of the boundary between constitutionally per-

missible and constitutionally impermissible applications

of the statute.” Wright v. Georgia, 373 U.S. 284, 292

(1963).

In the much respected, often cited article by Professor

Amsterdam in 109 Pa. L.R. 67 (1960) the point is

made that withdrawal by a state court under an over-

broad statute to the line of absolute constitutional pro-

hibition does not satisfy either the requirement of fair

warning or the need for tolerance in the Bill of Rights

area. 109 Penn. L.R. p. 80. Amsterdam referred to two

illustrative cases, Smith v. Cahoon, 283 U.S. 553 (1931)

and Herndon v. Lowery, 301 U.S. 242 (1937). In the

former case, Florida enacted a regulatory scheme to cover

all truckers, private and common, but not all of its many

aspects could constitutionally cover private carriers.

When the constitutionalty of the licensing portion of

MNES EI Hs

the statute was challenged as applied to private carriers,

the Florida court upheld this particular licensing applica-

tion then went on to hold that “. . . the provisions of the

statute that are legally applicable only to common car-

riers are not intended to be applied to and are not ap-

plicable to . . .” private carriers. The Florida court then

left the other applications of the sections of the statute

to be worked out from time to time as the then prevail-

ing pressures of substantive due process might dictate.

This was held bad. Curing the potential substantive due

process infirmities did not answer the indefiniteness risks

for the private carrier. “The legislature could not thus

impose upon laymen, at the peril of criminal prosecution,

the duty of severing the statutory provisions and thus

resolving important constitutional questions . . .” 283 U.S.

p. 564.

In Herndon v. Lowery, supra, defendant was rescued

from a Georgia insurrection statute making unlawful

“any attempt, by persuasion or otherwise, to induce others

to join in any combined resistance to the lawful au-

thority of the state.” The Georgia court defined the causal

connection between the persuasion and the reaction to

be limited to “a reasonable time”. The Supreme Court

found this unacceptable because no one could ascertain

when his utterance might beget the prohibited resistance

to the state. At the same time the jury was licensed to

create its own standard in each case.

In the absence of clarifying constructions of the Texas

Supreme Court to define the correct and constitutional

scope of the statute, its terms in the light of its use by

the defendant law officers render it unconstitutionally

vague. No one can reasonably know what the statute

prohibits or does not prohibit.

esis Bist ae

For all of the above reasons, Appellees submit that the

judgment of the district court was correct as to Article

5154f.

CONCLUSION

The district court correctly applied the tests of Younger

v. Harris (although no interference with pending criminal

prosecutions was requested or granted).

The challenged statutes are unconstitutional, and the

judgment of the district court was correct.

Respectfully submitted,

CuRIS DIXIE

609 Fannin St. Bldg.

Suite 401

Houston, Texas 77002

713/223-4444

Attorney for Appellees

CERTIFICATE OF SERVICE

I, Chris Dixie, a member of the Bar of the Supreme

Court of the United States, do hereby certify that appro-

priate copies of the foregoing Appellees’ Brief have been

served on counsel for appellants by depositing same in the

United States mail, certified, postage prepaid, addressed

to Hon. John L. Hill, Attorney General of Texas, and

Hon. Gilbert J. Pena, Assistant Attorney General, P. O.

Box 12548, Capitol Station, Austin, Texas 78711, on this

the day of August, 1973.

CHRIS DIXIE

APPENDIX TO APPELLEES’ BRIEF

Art. 5153. Other Rights and. Privileges

It shall be lawful for any member or members of such

trades union or other organization or association, or any

other person, to induce or attempt to induce by peace-

able and lawful means, any person to accept any particular

employment or to enter or refuse to enter any pursuit or

quit or relinquish any particular employment or pursuit

in which such person may then be engaged. Such mem-

ber or members shall not have the right to invade or

trespass upon the premises of another without the con-

sent of the owner thereof.

Article 5154b. Liability of labor organizations for damages

Section 1. A labor organization whose members picket

or strike against any person, firm or corporation shall

be liable in damage for any loss resulting to such per-

son, firm or corporation by reason of such picketing or

strike in the event that such picketing or strike is held

to be breach of a contract by a Court of competent juris-

diction.

Art. 5207a § 1

The inherent right of a person to work and bargain

freely with his employer, individually or collectively, for

terms and conditions of his employment shall not be

denied or infringed by law, or by any organization of

whatever nature.

Excerpts from Attorney General's Post Hearing Brief

to the District Court.

“On this occasion [October 12, 1966] in addition to

being charged with disturbing of the peace, all persons

present could have been charged with violation of Ar-

ticle 482, Abusive Language, violation of Articles

i CNIS ONO DR FETE Sate ~ 7”

aoe es callie

439 and 449, Unlawful Assembly. If charges had been

made under Articles 455, 464; 466, and under Article

468, all persons present would have been guilty of riot-

ing as all would have been guilty of rioting as all would

be guilty if anyone present performed an illegal act.”

(pp. 15-16)

“In the next scene, Paragraph 7.11, [January 26, 1967]

Plaintiffs offered no evidence to rebut the fact that they

were using a loud speaker and calling to Augustine Lopez

and Fredrico Pena and other workers by using ‘the foulest

words known to that language in this area. * * * Assum-

ing the correctness of this uncontroverted testimony,

Plaintiff could clearly have been charged under Articles

482, Abusive Language; 439, 449 Unlawful Assembly;

455, 464, 466, 469, Rioting Statutes; and 5154d,

V.C.S.” (p. 20)

“* * * [On January 26, 1967 at the Courthouse] the

entire crowd could have been arrested and charged with

unlawful assembly under the P. C., Articles 439, 449; for

Rioting, P.C., Articles 455, 466; for Disturbing the

Peace, P.C., Article 482, Abusive Language.” (pp.

21-22)

“On February 1, 1966, the instance complained about

in Paragraph 7.13 occurred. In reviewing the record,

there is some doubt as to whether or not Penal Code,

Article 474 applies. Based on the testimony of the two

Catholic priests, Father Smith and Father Killian, every-

one present could have been charged with violation of

Article 5154d, Mass Picketing, with Articles 439 and 449,

Unlawful Assembly; and possibly under Article 482,

Abusive Language, as Father Smith stated that they were

calling the workers ‘scab’ in Spanish in attempting to use

the word that has ‘punch to it and an edge to it.’” (p. 22)

PS ee ee ee

“Paragraph 7.18 complains of the arrest [On May 18,

1967] of twenty-one pickets at the entrance of Trophy

Farm. * * * Charges could have likewise been filed for

rioting and unlawful assembly.” (pp. 25-26)

“At the time and place in question [On May 26, 1967]

both those initially arrested and those arrested in the

secondary group were clearly guilty of Unlawful As-

sembly Under Articles 439 and 449 of the Penal Code

and of Rioting under Articles 455, 464, and 466. * * *

It is interesting to note that in spite of protestations of

innocence, each of the person arrested had participated

in union activity, were away from their homes with the

intention of aiding and lending support to the unlawful

assembly and riot at Mission, Texas. It is immaterial

under State law whether or not they were actually stand-

ing on the railroad tracks themselves or merely near to

the tracks or even if they were somewhere else if they

were or had been a part of this unlawful assembly.”

(pp. 30-32)

“In Paragraph 7.21, complaint is made of the arrest

[On May 31, 1967] union members who were talking

to workers in the field through a loud speaker. * * * In

addition on this occasion, participants could have been

charged with violation of Articles 439, 449, Unlawful

Assembly; Articles 474, Disturbing the Peace; and Article

482, Abusive Language, Articles 455, 464, or 466 of the

rioting statute.” (pp. 33-34)

“In Paragraph 7.16, * * * Diaz was speeding up and

passing the bus, and then slowing it down so that it could

not proceed. * * * A valid charge of Unlawful Assembly,

Articles 439 and 449 or Rioting, Articles 455 and 464

could have been filed against all persons in the car.”

(pp. 23-24)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.