City of New Orleans v. Barthe Motion to Dismiss or Affirm

    I n  THE

G Im trt o f  %  Mnxttb S t a t e s
O cto ber  T e r m , 1963 

No. 663

C i t y  o f  N e w  O r l e a n s , et al., 

—v.—
Appellants,

E v a n g e l in e  B a r t h e , et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

MOTION TO DISMISS OR AFFIRM

J a c k  G r e e n b e r g  
J a m e s  M . N a b r it , I I I  
G eorge  B . S m i t h

10 Columbus Circle 
New York 19, New York

E r n e s t  N. M o r ia l  
A. P. T u r e a u d

1821 Orleans Avenue 
New Orleans 16, Louisiana

Attorneys for Appellees



I N D E X

Motion to Dismiss or Affirm.............................................. 1

Opinion B elow .......................................................    1

Statute ................................................................................. 1

Questions Presented...........................................................  2

Statement .............................................................................  2

A r g u m e n t  :

PAGE

I. This Court Lacks Jurisdiction of This Appeal 
Because No Three-Judge Court Was Neces­
sary for Disposition Below. However, It 
Should Take Certiorari Jurisdiction and Ren­
der Judgment on the Merits ............................  5

II. The Questions Presented by Appellants Are 
Unsubstantial ...................................................... 7

C o n c l u s io n  .....................................................      12

T a b l e  op  C ases

Bailey v. Patterson, 369 U. S. 3 1 ....................................  6
Barthe v. City of New Orleans, 219 F. Supp. 788 ...........6,11
Board of Supervisors of Louisiana State University v.

Wilson, 340 U. S. 909 ...................................................... 10
Bohler v. Lane, 204 F. Supp. 168 (S. D. Fla. 1962) ....... 8, 9
Brown v. Board of Education, 347 U. S. 483 ................... 6
Brown v. Board of Education, 349 U. S. 294 ............... 10
Brown v. South Carolina State Forestry Commission 

(No. 774, E. D. S. C. July 10, 1963) .......................... 8



11

Buchanan v. Warley, 245 U. S. 6 0 ....................................  6
Burton v. Wilmington Parking Authority, 365 U. S.

715 ....................................................................................  6, 8

City of Greenboro v. Simkins, 149 F. Supp. 562 (M. D.
N. C. 1957), aff’d 246 F. 2d 425 (4th Cir. 1957) .........  8

City of St. Petersburg v. Alsup, 238 F. 2d 830 (5th Cir.
1956) ................................................................................. 8

Clemons v. Board of Education of Hillsborough, 228 
F. 2d 853 (6th Cir. 1956) ............................................. 10

Department of Conservation v. Tate, 231 F. 2d 615 
(4th Cir. 1955), aff’d 350 U. S. 877 ..............................  7-8

Evers v. Dwyer, 358 U. S. 202 ........................................  10

Fayson v. Beard, 134 F. Supp. 379 (E. D. Tex. 1955) .... 8

Gayle v. Browder, 352 U. S. 903 ......................................  6
Gilmore v. The City of Montgomery, 176 F. Supp. 776 

(M. D. Ala. 1959), aff’d 277 F. 2d 364 (5th Cir. 
1960) .................................................................................  8

Hecht Co. v. Bowles, 321 U. S. 321 ................................  10
Henry v. Greenville Airport Commission, 284 F. 2d 631

(4th Cir. 1960) ...............................................................  10
Holmes v. City of Atlanta, 124 F. Supp. 290 (N. D. Ga. 

1954), aff’d 223 F. 2d 93 (5th Cir. 1955), rev’d 350 
U. S. 879 ........................................................................... 6, 8

Johnson v. Virginia, 373 U. S. 6 1 ....................................  6, 8

Mayor and City Council of Baltimore City v. Dawson,
350 U. S. 877 ...................................................................  6, 9

PAGE



Moorhead v. City of Fort Lauderdale, 152 F. Supp. 131 
(S. D. Fla. 1957), aff’d 248 F. 2d 544 (5th Cir.
1957) ................................................................................. 8

Muir v. Louisville Park Theatrical Association, 347 
U. S. 971, vacating and remanding 202 F. 2d 275 (6th 
Cir. 1953) .........................................................................  8

New Orleans City Park Improvement Association v. 
Detiege, 252 F. 2d 122 (5th Cir. 1958), aff’d 358 
U. S. 5 4 ............................................................................. 6, 7

Orleans Parish School Board v. Bush, 242 F. 2d 156 
(5th Cir. 1957) .............................................................. 10

Porter v. Warner Holding Co., 328 U. S. 395 ................. 10

Shuttlesworth v. Gaylord, 202 F. Supp. 59 (N. D. Ala.
1961), aff’d 310 F. 2d 303 (5th Cir. 1962) ................... 8, 9

Smith v. Swormstedt, 16 How. (57 U. S.) 288 ............... 10
Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368 ........... 7
State Athletic Commission v. Dorsey, 359 U. S. 533 .... 6

Turner v. City of Memphis, 369 U. S. 350 ....................... 6, 7

United States v. Corrick, 298 U. S. 435 ......................... 10

Ward v. City of Miami, Florida, 151 F. Supp. 593 (S. D.
Fla. 1957) .........................................................................  8

Watson v. City of Memphis, 373 U. S. 526 ...................6, 7, 9
Willie v. Harris County, Texas, 202 F. Supp. 549 

(S. D. Tex. 1962) ................    8,9

O t h e r  A u t h o r it ie s

Federal Rule 23(a)(3) Pomeroy’s Equity Jurispru­
dence (5th Ed. 1941 Symons), Vol. 1, §§260, 261 a-m .. 10

in

PAGE



In t h e

Isatprm? dmtrt rtf tlje United States
O c to ber  T e r m , 1963 

No. 663

C it y  of  N e w  O r l e a n s , et al., 

—v.—
Appellants,

E v a n g e l in e  B a r t h e , et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION

MOTION TO DISMISS OR AFFIRM

Appellees, pursuant to Buie 16 of the Revised Rules of 
the Supreme Court of the United States, move that this 
appeal be dismissed on the ground that this Court lacks 
jurisdiction, or that the final judgment and decree of the 
District Court be affirmed on the ground that the questions 
are so unsubstantial as not to warrant further argument.

Opinion Below

The opinion below is reported at 219 F. Supp. 788.

Statute

The statute declared unconstitutional by the District 
Court is Section 33:4558.1 of the Revised Statutes of Louisi­
ana of 1950.



2

Questions Presented

For the purposes of this motion, appellees adopt the 
questions as presented by appellants at page 6 of their 
Statement as to Jurisdiction and add the following:

Whether this Court has jurisdiction of this appeal?

Statement

This appeal is from the judgment of the United States 
District Court for the Eastern District of Louisiana, en­
tered on September 27, 1963, declaring unconstitutional 
LSA-R.S. 33:4558.1, which requires racial segregation in 
public parks and recreational facilities in the State of 
Louisiana, and enjoining appellants from acting pursuant 
thereto.

There is no dispute whatsoever that the park and recre­
ational facilities and the entire recreational program of the 
City of New Orleans are segregated on the basis of race. 
This was admitted by the Director of the New Orleans 
Recreation Department (NORD) as well as by the Super­
intendent of the New Orleans Park and Parkway Commis­
sion (R. 14, 49, 50). When the Director of NORD was 
asked if this was the result of a law, custom, or policy 
of the department, he replied:

Well, we consider it by law and by custom and by 
policy of the depai'tment (R. 14).

There are ninety-five playgrounds for whites and nine­
teen playgrounds for Negroes administered by NORD (R. 
13). In addition, appellant New Orleans Parkway and Park 
Commission administers two parks—one, Portchartrain, 
for Negroes and another, West End, for whites (R. 48). 
The Director of NORD testified that there was a need for



3

additional white and Negro playgrounds but that there was 
a “bigger need” for Negro playgrounds (R. 43).

All of the recreational programs undertaken by NORD 
are divided into white and Negro divisions (R. 23) and ad­
ministered on a completely segregated basis (R. 14). Al­
though the NORD director testified that all of the programs 
available to whites are available to Negroes on a segre­
gated basis except for the soap box derby, further testimony 
from him and from the Negro recreational supervisor in­
dicated that there was no NORD All-American baseball 
league for Negroes, fine arts festival, charm school, bowl­
ing activities, travel theatre, or civic orchestra (R. 32, 33, 
99). NORD’s director contended that such things would be 
provided for Negroes if they asked (R. 32, 33), but very 
few NORD programs are initiated by this method (R. 99). 
Advertising of programs is made on a racial basis (R. 21, 
22). Of the two hundred fifty employees in the NORD pro­
gram, fifty to sixty of them are Negro but none is in an 
administrative position (R. 23).

The evidence contained a long procession of accounts of 
denials, insults and discriminations against Negroes seek­
ing to use white parks. A Negro who sought to enter the 
soap box derby, the national winner of which receives a 
college scholarship, was refused entrance on the basis of 
race (R. 31, 76, 80, 81). One of the plaintiffs testified that 
his son, a minor Negro plaintiff, Gary Burns, had com­
peted in a NORD-sponsored track race, emerged the victor, 
and then been ejected from the field, without his trophy, 
because he was Negro (R. 66-71). A group of Negroes 
playing baseball in the white Taylor Park was arrested even 
though there was enough room for white and Negro young­
sters to play (R. 83, 84, 86-89). Other Negroes playing 
basketball were also arrested at Taylor Park (R. 90). The 
charges against the latter group were dismissed when the



4

police did not show up for the trial (R. 91). Still other 
Negroes were arrested or chased from public recreational 
areas (R. 105, 106, 107, 109, 110). Moreover, several white 
persons were refused permission to play golf on the all 
Negro Portehartrain Park (R. 49, 50).

On or about June 8, 1962, approximately one thousand 
Negroes, including the adult plaintiffs in this suit, submitted 
a petition to the appellants, Mayor, Councilmen of the City 
of New Orleans, and the Director of NORD, asking for 
desegregation of the park and recreational facilities. The 
same petition was submitted to the appellant New Orleans 
Park and Parkway Commission on or about October 31, 
1962. The facilities were not desegregated.

On September 27,1963, the lower court issued a judgment 
declaring LSA-R.S. 33:4558.1 unconstitutional and enjoin­
ing appellants from acting pursuant thereto. Appellants 
subsequently filed this appeal. They also filed a notice of 
appeal to the United States Court of Appeals for the 
Fifth Circuit.



5

A R G U M E N T

I.
This Court Lacks Jurisdiction of This Appeal Because 

No Three Judge Court Was Necessary for Disposition 
Below. However, It Should Take Certiorari Jurisdiction 
and Render Judgment on the Merits.

This case involves the validity of a state statute requiring 
segregation in parks and recreational facilities in the State 
of Louisiana. The statute, LSA-R.S. 33:4558.1, reads as fol­
lows :

Separation of white and colored races

A. All public parks, recreation centers, playgrounds, 
community centers and other such facilities at which 
swimming, dancing, golfing, skating or other recrea­
tional activities are conducted shall be operated sepa­
rately for members of the white and colored races. This 
shall not preclude mixed audiences at such facilities, 
provided separated sections and rest room facilities are 
reserved for members of white and colored races. This 
provision is made in the exercise of the state’s police 
power and for the purpose of protecting the public 
health, morals and the peace and good order in the state 
and not because of race.

B. “ Public” parks and other recreational facilities as 
used herein shall mean any and all recreational facili­
ties operated by the State of Louisiana or any of its 
parishes, municipalities or other subdivisions of the 
state.

C. Any person, firm or corporation violating any of 
the provisions of this Section shall be deemed guilty of



6

a misdemeanor and upon conviction therefor by a court 
of competent jurisdiction for each such violation shall 
be fined not less than five hundred dollars nor more 
than one thousand dollars, or sentenced to imprison­
ment in the parish jail not less than ninety days nor 
more than six months, or both, fined and imprisoned 
as above, at the discretion of the court. Acts 1956, 
No. 14, §§1-3.

Similar statutes and regulations have been repeatedly de­
clared unconstitutional by this Court. Watson v. City of 
Memphis, 373 U. S. 526; Johnson v. Virginia, 373 U. S. 61; 
Burton v. Wilmington Parking Authority, 365 U. S. 715; 
State Athletic Commission v. Dorsey, 359 U. S. 533; New 
Orleans City Park Improvement Association v. Detiege, 358 
U. S. 54; Gayle v. Browder, 352 U. S. 903; Holmes v. City of 
Atlanta, 350 U. S. 879; Mayor and City Council of Baltimore 
City v. Dawson, 350 U. S. 877; Brown v. Board of Education, 
347 U. S. 483; Buchanan v. Warley, 245 U. S. 60.

It follows that a three judge court was not required in 
this instance where “ prior decisions make frivolous any 
claim that a state statute on its face is not unconstitutional.” 
Bailey v. Patterson, 369 U. S. 31, 33; Turner v. City of 
Memphis, 369 U. S. 350.1 Jurisdiction of this appeal is in 
the Court of Appeals and not in this Court. Turner v. City 
of Memphis, 369 U. S. 350, 353.

Nevertheless, appellees submit that there are compelling 
reasons for this Court to treat the jurisdictional statement 
as a petition for certiorari and to decide the issues on the 
merits prior to judgment in the Court of Appeals. It is

1 In the instant ease the court below expressed doubt that a 
three judge court was necessary but nevertheless decided the case. 
The single district court judge who would otherwise have heard 
the case also adopted the findings and conclusions as his own. 
Barthe v. City of New Orleans, 219 F . Supp. 788, 789.



7

clear that this Court has such authority. 28 U. S. C. §§1254 
(1), 2101(e); Turner v. City of Memphis, supra; Stainback 
v. Mo Hock Ke Lok Po, 336 U. S. 368. The statute is plainly 
unconstitutional and there is no dispute as to the facts. A 
decision by this Court on the merits will serve the interest 
of proper judicial administration by disposing of this liti­
gation as expeditiously as possible and rendering extended 
proceedings in the Court of Appeals unnecessary.

n.
The Questions Presented by Appellants Are Unsub­

stantial.

This case presents once again the simple issue of whether 
a state may exclude Negroes from public recreational facili­
ties. There is no dispute that the facilities involved are 
segregated. Such exclusion, based solely on race and color, 
has been repeatedly condemned as a violation of the Four­
teenth Amendment:

Discrimination in the use and enjoyment of public rec­
reational facilities of any kind or nature owned and op­
erated or owned and leased by the City, whether under 
color of law, statute, ordinance, policy, custom, or 
usage, is violative of the Equal Protection of the Laws 
clause of the Fourteenth Amendment to the Constitu­
tion of the United States. Shuttlesworth v. Gaylord, 
202 F. Supp. 59, 62 (N. D. Ala. 1961), aff’d 310 F. 2d 
303 (5th Cir. 1962).

See also Watson v. City of Memphis, 373 U. S. 526; New 
Orleans City Park Improvement Association v. Detiege, 
252 F. 2d 122 (5th Cir. 1958), aff’d 358 U. S. 54 (outlawing 
segregation in one park in New Orleans); Department of 
Conservation v. Tate, 231 F. 2d 615 (4th Cir. 1955), aff’d



8

350 U. S. 877; Muir v. Louisville Park Theatrical Associ­
ation, 347 U. S. 971, vacating and remanding 202 F. 2d 275 
(6th Cir. 1953); Holmes v. City of Atlanta, 124 F. Supp. 290 
(N. D. Ga. 1954), aff’d 223 F. 2d 93 (5th Cir. 1955), rev’d 
350 U. S. 879; Gilmore v. The City of Montgomery, 176 F. 
Supp. 776 (M. D. Ala. 1959), aff’d 277 F. 2d 364 (5th Cir. 
1960); City of St. Petersburg v. Alsup, 238 F. 2d 830 (5th 
Cir. 1956); Moorhead v. City of Fort Lauderdale, 152 F. 
Supp. 131 (S. D. Fla. 1957), aff’d 248 F. 2d 544 (5th Cir. 
1957); City of Greensboro v. Simkins, 149 F. Supp. 562 
(M. D. N. C. 1957), aff’d 246 F. 2d 425 (4th Cir. 1957);
Brown v. South Carolina State Forestry Comm., ------  F.
Supp.------  (No. 774, E. D. S. C. July 10, 1963); Bohler v.
Lane, 204 F. Supp. 168 (S. D. Fla. 1962); Willie v. Harris 
County, Texas, 202 F. Supp. 549 (S. D. Tex. 1962); Ward 
v. City of Miami, Florida, 151 F. Supp. 593 (S. D. Fla. 
1957); Fayson v. Beard, 134 F. Supp. 379 (E. D. Texas 
1955).

Moreover, these cases are no more than specific applica­
tions of the broader principles that public facilities may not 
be segregated, Johnson v. Virginia, 373 U. S. 61, and that 
discriminatory classification based exclusively on color does 
not meet constitutional commands. Burton v. Wilmington 
Parking Authority, 365 U. S. 715.

Despite this long line of cases, appellants seek a reversal 
of the decision of the lower court on the grounds that (1) 
LSA-E.S. 33:4558.1, which requires segregation of the races 
in parks and recreational facilities, is a valid exercise of 
the state’s police power, (2) appellees have not shown that 
this is a proper class action, and (3) no preliminary injunc­
tion should have issued. None of these arguments is novel. 
All have been rejected expressly and by implication in pre­
vious cases, cited herein.



9

Appellants seek to use the police power of the state to 
justify racial segregation. As long ago as Buchanan v. 
Warley, 245 U. S. 60, this Court decided that the police 
power could not be so used. That case, like tills, involved 
the constitutionality of a statute requiring segregation. In 
the action for the specific performance of a contract to buy 
a house, the Negro defendant contended that the contract 
terms had not been met because the ordinance prevented his 
occupancy of the house. Rejecting an argument that the 
statute was a proper exercise of the state’s police power, 
this Court stated (at page 74):

The authority of the state to pass laws in the exercise 
of the police power, having for their object the promo­
tion of the public health, safety and welfare, is very 
broad, as has been affirmed in numerous and recent de­
cisions of this court . . . But it is equally well estab­
lished that the police power, broad as it is, cannot jus­
tify the passage of a law or ordinance which runs 
counter to the limitations of the Federal Constitution.

Similarly, the argument was rejected last term in Watson 
v. Memphis, supra, in which it was argued that the state’s 
obligation to prevent violence and disorder justified a delay 
in the desegregation of the recreational facilities of Mem­
phis, Tennessee. See also Dawson v. Mayor and City Coun­
cil of Baltimore City, supra, 220 F. 2d at 387; Shuttlesworth 
v. Gaylord, supra, 202 F. Supp. at 62; Bohler v. Lane, supra, 
at 173.

Equally untenable is the argument that no foundation 
was laid to show a proper class action. All of the recrea­
tion cases cited herein were class actions brought in the 
same manner as this case. As stated in Willie v. Harris 
County, Texas, supra, 202 F. Supp. 549, 555:



10

But this court is not familiar with any principle which 
would prevent relief from extending to all members 
of the class similarly situated with the plaintiffs. The 
operation of the park on a segregated basis is admitted 
—the wrong extends to the entire class of which the 
plaintiffs are representative, and it is plainly within 
the sound discretion of this court to grant relief coter­
minous with the wrong.

See also Evers v. Dwyer, 358 U. S. 202; Orleans Parish 
School Board v. Bush, 242 F. 2d 156, 165 (5th Cir. 1957). 
Cf. Brown v. Board of Education, 349 U. S. 294; Hecht 
Co. v. Bowles, 321 U. S. 321, 329; Porter v. Warner Hold­
ing Co., 328 U. S. 395, 398. Federal Rule 23 (a) (3) was 
intended to deal with just such situations in order to avoid 
a multiplicity of actions. Cf. Pomeroy’s Equity Jurispru­
dence (5th Ed. Symons 1941), Vol. 1, §§260, 261 a-m; 
Smith v. Swormstedt, 16 How. (57 U. S.) 288.

The lower court’s decision to grant a preliminary injunc­
tion cannot be disturbed without a showing of a clear abuse 
of discretion. United States v. Corrick, 298 U. S. 435, 437. 
Appellants, however, have made no such showing. Instead 
they contend that the appellants are “high class men” and 
that there is no showing that they would disobey the lower 
court’s ruling that LSA-R.S. 33:4558.1 is unconstitutional. 
But appellees were entitled to relief by preliminary injunc­
tion from the moment they established that their constitu­
tional rights were being violated. Henry Greenville Airport 
Commission, 284 F. 2d 631 (4th Cir. 1960); Clemons v. 
Board of Education of Hillsborough, 228 F. 2d 853, 857 
(6th Cir. 1956); Board of Supervisors of Louisiana State 
University v. Wilson, 340 U. S. 909.

Appellants could not make a showing of abuse of discre­
tion given the uncontradicted evidence of their discrimina­



11

tory practices. Facilities and programs were maintained 
on a racially segregated basis “ by law and by custom and 
by policy of the department” (R. 14). Only nineteen play­
grounds wrere available to Negroes as opposed to ninety-five 
for whites (R. 13). Negro facilities were “by no means 
equal to those available to white persons.” Barthe v. City 
of New Orleans, 219 F. Supp. 788, 789. Many programs 
available to whites were unavailable to Negroes, including 
the soap box derby, the NORD All-American Baseball 
League, fine arts festival, charm school, bowling activities, 
traveling theatre, and civic orchestra (R. 31, 32, 33, 99). 
Program advertising was on a racial basis (R. 21, 22). 
Employment was rigidly segregated and no Negro was in 
an administrative position (R. 23). Witness after witness 
testified to insulting denials of the use of white facilities: 
at least one park was closed (R. 25, 26); one boy was ejected 
from a field without his trophy after winning a race (R. 66, 
71); another could not compete for a college scholarship 
in the soap box derby (R. 76, 80, 81); and many Negroes 
were arrested while playing on white facilities (R. 83, 84, 
86, 88, 89-91,105-107,109-110).

Thus the lower court was entirely justified in issuing 
its order for preliminary injunction. In doing so it simply 
followed long-standing precedents in which similar relief 
had been given. See cases cited at pages 7, 8, supra.



12

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that this Motion to Dismiss or Affirm should be granted.

Respectfully submitted,

J a c k  G r e e n b e r g  
J a m e s  M . N a b r it , III 
G eorge  B. S m i t h

10 Columbus Circle 
New York 19, New York

E r n e s t  N. M o r ia l  
A. P . T u r e a u d

1821 Orleans Avenue 
New Orleans 16, Louisiana

Attorneys for Appellees



3 8