Christian v. Jemison Brief for Appellees
Public Court Documents
January 1, 1961

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Brief Collection, LDF Court Filings. Christian v. Jemison Brief for Appellees, 1961. 6edd427a-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0a6bf6e6-53a7-4b89-b4d4-227809eb279b/christian-v-jemison-brief-for-appellees. Accessed April 29, 2025.
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Ik t h e Mxntzb States (tort of Appeals F oe th e F if t h C ircuit No. 19120 J ack C hristian , et al., Appellants, T heodore J . J em ison , et al., Appellees. APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BRIEF FOR APPELLEES A. P. T ureaud 1821 Orleans Avenue New Orleans 16, La. J ack Greenberg Constance B aker M otley J ames M. N abrit, III D errick A. B ell 10 Columbus Circle New York 19, N. Y, Attorneys for Appellees JAM ES M. NAiBHilT, ill SUBJECT INDEX Statement of tlie Case......... .............................................. 1 A rgument : I. The Plea Of Ees Judicata And The Alternative Motions That The Case Be Remitted To State Courts And For A Jury Trial Were Properly Overruled And Denied By The Court Below .... 7 II. The Baton Rouge Bus Segregation Ordinance Is Plainly Invalid Under Settled Precedent And There Were No Genuine Issues Of Material PAGE Facts ......................................................................... 11 Co n c l u s io n ........................................................................... 14 T able op Cases C ited Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) .....12,13 Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ....... 12 Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th Cir. 1960) .................... ............... .......... ....... ................- 12 Bratley v. Nelson, 67 F. Supp. 272 (S. D. Fla. 1946) .... 10 Browder v. City of Montgomery, 146 F. Supp. 127 (M. D. Ala. 1956) ........................................................... 12 Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956), aff’d. 352 U. S. 903 (1956) ............. ........... 7, 8, 9,10,11,12 Brown v. Board of Education, 347 U. S. 483 (1954) ..... 7, 8 Brown v. Board of Education, 349 U. S. 294 (1955) ..... 7, 8 Douglas v. City of Jeannette, 319 U. S. 157, 163 ........... 10 XI Fletcher v. Norfolk Newspapers, Inc., 239 F. 2d 169 (4th Cir. 1956) ................................................................. 13 Harrison v. NAACP, 360 IT. S. 185 ......... ......................... 9 Iselin v. C. W. Hunter Co., 173 F. 2d 388 (5th Cir. 1949) 7 Jemison v. City of Baton Rouge, No. 46,023, 19th Jud. Dist. Ct. of La. (Jan. 20, 1954) ................................ . 6 Lawlor v. National Screen Services Corp., 349 IT. S. 322, 99 L. ed. 1122, 75 S. Ct. 865 (1955) ....................... 8 Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958), cert, den. 357 IT. S. 944 (1958) ....................................... 9,12,13 (Means Parish School Boaxvl v. Bush, 268 F. 2d 78, 80 (5th Cir. 1959) ........ 9 Richard v. Credit Suisse, 242 N. Y. 346, 152 N. E. 110 (1926) .............................................................................. 14 Toomer v. Witsell, 334 U. S. 385, 392 n. 15 (1948) ....... 9 Williams v. Kolb, 79 IT. S. App. D. C. 253, 145 F. 2d 344 (D. C. Cir. 1944) ............................................ ................ 13 Other A uthorities Cited 1 Moore’s Federal Practice, Par. 0.401, p. 4018 ........... 8 5 Moore’s Federal Practice, Par. 38.24[1] ................. 12 6 Moore’s Federal Practice, Par. 56.04, pp. 2028 et seq. 14 28 United States Code, §1331....... ............... ..................... 2 28 United States Code, §1343 ........................................... 2 PAGE Ill PAGE 42 United States Code, §1981............................................ 2 42 United States Code, §1983 ............................................ 2 Emergency Ordinance, No. 251 of the City of Baton Rouge ..................................................... 2, 3,4, 5, 6, 7,12,13 L.S.A.-R.S. 45:194, 45:195, 45:196, which were repealed by Act No. 261, Louisiana Acts of 1958 .......... ............ 2 Restatement, Judgments, §46, Comment b, §53, Com ment c ................... .......................................................... 8 Rule 56, Federal Rules of Civil Procedure................. . 13 In t h e Wuxteb States (Emtrt of Appals F ob th e F ifth Cikcuit No. 19120 J ack Christian , et ol., -v.- Appellants, T heodore J . J em ison , et al., Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BRIEF FOR APPELLEES Statement of the Case This action was filed February 4, 1957 in the United States District Court for the Eastern District of Louisiana by plaintiffs, Theodore J. Jemison, Edward \Y. Brown, Felton B. Hitchens, Dupuy H. Anderson, Curtis J. Gil liam and Louis J. Jones. The defendants in this action are numerous named individuals who hold offices as the Mayor-President of the City of Baton Rouge and Parish of East Baton Rouge, Louisiana, the members of the City- Parish councils of said city and parish, the city chief of police, the parish sheriff, and the manager of the Baton Rouge Bus Company, Inc. The last-mentioned corporation was also named as a defendant. Jurisdiction of the trial court was invoked on alterna tive grounds, namely (1) “ federal question” jurisdiction 2 under 28 U. S. C. §1331, the matter involving questions under the Fourteenth Amendment to the Constitution of the United States and under 42 U. S. C. §1981; and (2) “ civil rights” jurisdiction under 28 U. S. C. §1343 as au thorized by 42 U. S. C. §1983 to enforce rights under the Fourteenth Amendment and 42 U. S. C. §1981. The Com plaint sought injunctive and declaratory relief, against several state statutes (which have now been repealed)1 and a city ordinance, i.e., Emergency Ordinance No. 251 of the City of Baton Rouge, which provides as follows: Amending Title 10, Chapter 2, of the Baton Rouge City Code of 1951, by amending Section 118, “ Seating of Passengers,” so as to provide for the separation of races in the buses in the City of Baton Rouge; pro viding for the reservation of certain seats; making certain exceptions; and providing penalties for failure to comply therewith. W hereas, on March 11, 1953, the City Council of the City of Baton Rouge adopted Ordinance No. 222, providing a method for seating passengers riding any buses for hire within the City of Baton Rouge; and, W hebeas, by an opinion dated June 18, 1953, .the Office of the Attorney General held that such ordinance was invalid as being in conflict with the Louisiana,: Revised Statutes Title 45, Section 194 and 195; and, W hereas, it is necessary that the Council now adopt a suitable ordinance regulating the seating of pas sengers on buses for hire within the City of Baton Rouge and an emergency, within the meaning of Sec tion 2.12 of the Plan of Government exists, requiring that such ordinance be adopted without the necessity 1 These statutes were L.S.A.-R.S. 45 :194, 45 :195, 45 :196, which were repealed by Act. No. 261, Louisiana Acts of 1958. Cf. Mor rison v. Davis, 252 F.2d 102 (5th Cir. 1958), cert. den. 357 U.S. 944 (1958). 3 of a public hearing or introduction and a second read ing, as otherwise required by Section 2.12 of the Plan of Government: Now, therefore, be it ordained by the City Council of the City of Baton Rouge that Title 10, Chapter 2, of the Baton Rouge City Code of 1951, be and the same is hereby amended by repealing the present Section 118 thereof and re-enacting same so as to add thereto a section 118, which shall read as follows: Section 118. Seating of Passengers. (1) Separation of Races in Buses: Every transpor tation company, lessee, manager, receiver or owner thereof, operating passenger buses in the City of Bat on Rouge as a carrier of passengers for hire, shall require that all white passengers boarding their buses for transportation shall take seats from the forward or front end of the bus and that all Negro passengers boarding their buses for transportation shall take seats from the. back or rear end of the bus. (2) Reservation of Seats: No white passenger shall occupy the long rear seat of the bus, which shall be re served for the sole and exclusive use of negro pas sengers. No negro passenger shall occupy the two front seats facing the aisle of the bus, but such seats shall be reserved for the sole and exclusive use of white passengers. (3) No passengers of different races shall occupy the same seat. (4) When there maybe or become vacant and avail able for occupancy any seat in the rear of a seat oc cupied by a Negro passenger or passengers, such negro passenger or passengers shall, when requested by the operator of the bus, remove to such rear seat; 4 and, likewise, when there may be or become vacant and available for occupancy any seat in front of any seat occupied by a white passenger or passengers, such white passenger or passengers shall, when requested by the operator of the bus, remove to such front seat. (5) Authority of Bus Operator: The operator on all passenger buses in the City of Baton Rouge shall have authority to refuse any passenger further oc cupancy or use of any bus in the City of Baton Rouge unless such passenger shall comply with the provisions of this ordinance. (6) Chartered and Special Buses: The provisions of this ordinance shall not apply to any chartered bus or special bus run strictly designated for the exclusive use of members of any race, but in all such cases, such bus or buses shall he plainly marked “ Charter” or “ Special.” (7) Penalties: Any person, firm, corporation or as sociation of persons or a member thereof convicted of violating any provisions of this ordinance shall be fined not less than ten dollars ($10.00). nor more than one hundred dollars ($100.00), or imprisonment for not less than ten (10) days, nor more than sixty (60) days, or both, at the discretion of the Court for each offense. (8) This ordinance, being an emergency ordinance, shall be effective upon adoption. The verified complaint (R. 3-15), alleged, in summary, that plaintiffs were Negro citizens of the City of Baton Rouge, and Parish of East Baton Rouge, Louisiana, and that they used the public transportation system operated by the defendant bus company. The complaint alleged the identity of the various defendants as public officials, the 5 identity of the manager of the bus company, and that the company was engaged in carrying passengers for hire under a franchise issued by the City of Baton Rouge. It was further alleged that on December 28, 1956, plaintiffs met with the bus company manager and requested that they and other Negroes be permitted to use the company buses on a nonsegregated basis; that the manager informed them that the bus company would abide by the existing state laws and municipal ordinances; that on January 3, 1957 plaintiffs met with the defendant Mayor-President of the City and Parish and members of the City-Parish councils again requesting the right to use the buses on a non segregated basis; and that these defendants “ told plain tiffs that the aforementioned statutes of the State of Louisi ana and ordinances of the City of Baton Rouge, Louisiana are valid and would be enforced by defendants until de clared unconstitutional, null and void by a court of com petent jurisdiction” (R. 11-12). On March 27, 1957, in response to the complaint defen dants filed a motion to dismiss, a plea of res judicata, an alternative request that the case be remitted to the state courts, and a further alternative request for a jury trial (R. 16-21; 29-32). Following a hearing on October 14, 1957, the court entered an order denying the various de fense motions on March 24, 1957 (R. 79). Thereafter no further proceedings were had until plaintiffs filed a motion for summary judgment on February 29, 1960 (R. 80). The defendants filed their Answer on October 12, 1960 (R. 84- 92). The answer defended Ordinance No. 251 as a valid exercise of the police powers, generally admitted the iden tity of the various defendants, admitted that the two meet ings referred to in the complaint had occurred, but denied the allegations that plaintiffs were Negro residents of Baton Rouge who used the city buses, denied jurisdiction, and denied that the buses were being operated on a “ segre 6 gated basis.” The answer acknowledged that the ordinance in suit was “ in effect.” In addition, a copy of a prior or dinance requiring separation of the races in buses was appended to the answer, which asserted that the “ only dif ference” between the two ordinances was that the current ordinance contains a provision which “ reserves the long rear seat on the bus for the exclusive use of those Negro passengers who wish to use it, and a reservation of the two short front seats for the exclusive use of those white patrons who wish to use them” (R. 90). Defendants appended to their pleadings copies of the petition (R. 64-78), opinion (R. 32-50), and judgment (R. 50-51) in a case decided on January 20, 1954 in the Louisi ana 19th Judicial District Court, captioned Jemison v. City of Baton Rouge, No. 46,023, which was relied upon to sup port the claim of res judicata in bar of the present action. This prior case was concluded in 1954, prior to the events of 1956 and 1957 which formed the basis for the present suit. The prior litigation was primarily concerned with a claim that Emergency Ordinance No. 251 was not authorized by various provisions of local law (see Petition R. 65-77). The validity of the ordinance under the Fourteenth Amend ment to the Constitution of the United States was not put in issue, and no Federal Constitutional issues were decided by the state court, on the ground that no specific consti tutional provisions had been invoked (R. 49). Only two of the plaintiffs in the instant case (Jemison and Hitchens) were parties to the prior proceeding and none of the de fendants in the present suit were parties to the prior case, the only defendant named in that case being the City of Baton Rouge (R. 64). The plaintiffs’ motion for summary judgment was sub mitted to the Court on October 12, 1960 and considered again on March 31, 1961. A final Judgment in favor of 7 the plaintiffs was entered on April 5, 1961 (R. 97). The Court found that there were no genuine issues as to any material facts, and that the ordinance was plainly invalid under the Fourteenth Amendment and the federal civil rights acts. A judgment granting declaratory and injunc tive relief restraining enforcement of the ordinance was entered. Notice of Appeal was filed May 2, 1961. ARGUMENT I. The plea of res judicata and the alternative motions that the case he remitted to state courts and for a jury trial were properly overruled and denied by the court below. A. The prior litigation which is urged in bar of the present suit has been described above in the Statement of the Case. As indicated therein, the prior litigation in volved different parties, different issues and was con cluded in 1954, several years prior to the events complained of in the present action, namely, (1) the December 1956 and January 1957 demands by plaintiffs for desegregation of the city buses, (2) the refusal of these demands by the defendants, (3) and the continuing operation of Emer gency Ordinance 251 in the years following. Brown v. Board of Education, 347 U. S. 483 (1954), 349 U. S. 294 (1955), and Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956), aff’d 352 U. S. 903 (1956). It is familiar doctrine that res judicata precludes fur ther litigation of the same cause of action between the same parties, but does not bar litigation as to other causes of action. See Iselin v. C. IF. Hunter Co., 173 F. 2d 388 8 . (5th Cir. 1949); 1 Moore’s Federal Practice, fjO.401, p. 4018. Lawlor v. National Screen Services Corporation, 349 U. S. 322, is dispositive of the issue raised by appellants’ claim of res judicata. In that case the Court held at 349 U. S. 322, 327-28: That both suits involved “ essentially the same course of wrongful conduct” is not decisive. Such a course of conduct—for example, an abatable nuisance—may fre quently give rise to more than a single cause of action. And so it is here. The conduct presently complained of was all subsequent to the 1943 [prior] judgment. The Court went on to observe that while a judgment is res judicata as to claims arising prior to its entry “ . . . it cannot be given the effect of extinguishing claims which do not even then exist and which could not possibly have been sued upon in the previous case” (Id. at 349 U. S. 329). It was made clear that the rule of the Lawlor case was appli cable to proceedings in equity as well as to a damage claim; see note 16 at 349 U. S. 329, citing Restatement, Judgments, §46, Comment b ; §53, Comment c. The continuing enforcement of a segregation ordinance is plainly a continuing wrongful course of conduct within the rule of the Lawlor case. Furthermore, it would be manifestly unjust and unconscionable to rule as appellants urge, that a segregation ordinance upheld prior to the de mise of the “ separate but equal” doctrine in the Brown and Browder cases, supra, must therefore go unchallenged for ever. B. Appellants insist that if the plea of res judicata be overruled, the appellees should nevertheless be required to proceed in the State courts and obtain there a ruling on 9 the ordinance in question. Similar abstention-type argu ments have been raised in this Circuit at least twice in cases involving statutes and ordinances requiring racial segregation in public transportation facilities. In Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956), affirmed, 352 U. S. 903, Judge Rives, speaking for a three- judge district court, set forth the guiding principle by stating: . . . the doctrine [of comity] has no application where the plaintiffs complain that they are being deprived of constitutional civil rights, for the protection of which the Federal courts have a responsibility as heavy as that which rests on the State courts. 142 F. Supp. at 713. More recently in Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958), cert, denied, 356 IT. S. 968, which involved a test of the Louisiana statute requiring segregation in local public transportation facilities, this Court per curiam held that the withholding of federal court action for reasons of comity was not required,'citing the Supreme Court action in Browder v. Gayle, supra. See also, Orleans Parish School Board v. Bush, 268 F. 2d 78, 80 (5th Cir. 1959). In Harrison v. NAACP, 360 U. S. 185, the Court applied the abstention principle because of its inability to find that the terms of the statutes there involved left no reasonable room for a construction by the state courts. But there is no room for interpretation by the State courts of the Baton Rouge ordinance which specifically requires the seating of passengers according to race, a requirement which appel lees contend renders it unconstitutional on its face. There fore, abstention could not result in avoiding decision of the federal constitutional issues presented, and would be im proper. Toomer v. Witsell, 334 U. S. 385, 392, n. 15 (1948). 10 None of the authorities relied on by appellants alters this conclusion. In Bratley v. Nelson, 67 F. Supp. 272 (S. D. Fla. 1946), plaintiffs sought to void a city ordinance, the validity of which was then being tested in the state courts by one of the plaintiffs arrested for violating its provisions. The court ruled that equitable relief which would interfere with state criminal prosecutions, should be refused since the facts did not show “ irreparable injury which is clear and imminent.” Douglas v. City of Jeannette, 319 XL S. 157,163. A contrary decision has been reached by this Court in cases similar to those in issue here, Browder v. Gayle, supra, Morrison v. Davis, supra, in the latter of which the Court indicated that “ to the extent that this [the Browder case] is inconsistent with Douglas v. City of Jeannette, Pa., we must consider the earlier case modified.” 252 F. 2d at 103. Appellees suggest that a similar modification of any inconsistencies in Judge Johnson’s ruling in Browder v. City of Montgomery. 146 F. Supp. 127 (M. D. Ala. 1956) must be made in light of the more recent Browder v. Gayle case in which Judge Johnson joined the majority. C. In the further alternative, appellants charge that they are entitled to jury trial as to issues of fact regarding whether Ordinance No. 251 was adopted in the valid exer cise of the police power, and whether conditions existing then still prevail. The short answer to this contention is that in a suit for injunction which is essentially equitable in nature, there is no right to a trial by jury, Moore’s Federal Practice, 1138.24 [1]. Here, appellees have sought and obtained an injunction. Moreover, it is appellees’ con-, tention that there were no substantial issues of fact in volved in this case. See Argument II, infra. 11 II. The Baton Rouge bus segregation ordinance is plainly invalid under settled precedent and there were no genuine issues of material facts. The appellants’ contentions that there were material issues of fact which required a trial for their resolution and that the ordinance in suit is valid under the Fourteenth Amendment may be treated together. It is submitted that neither claim has merit. A cursory review of the provisions of Ordinance 251 reveals that it compels racial segregation in violation of the Fourteenth Amendment. One paragraph entitled “ Sep aration of Races in Buses,” requires bus companies to re quire all white passengers to take seats from the front and all Negro passengers to take seats from the rear of the bus; the next paragraph reserves a rear seat for Negroes and two front seats for white passengers; the next prohibits passengers of different races to occupy the same seat; the next paragraph requires passengers to move to the rear (Negroes) or the front (whites) on direction of bus operatorsthe next provision authorizes buses to refuse transportation to anyone not obeying the ordinance; the next exempts from the law chartered buses run for the exclusive use of any race; the next provides criminal pen alties ; and the last provides that the ordinance be effective immediately upon its adoption as an emergency ordinance. The proposition that an ordinance requiring racial segre gation on local buses and other local public transportation facilities is unconstitutional under the Fourteenth Amend ment to the Constitution of the United States is so clearly settled as not to require argument. Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956), affirmed 352 U. S. 903 1 2 (1956) ; Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958) ; Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958); Bonian v. Birmingham Transit Co., 280 F. 2d 531 (5th Cir. 1960); Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961). The cases cited above recognize no distinction snch as that urged by appellants, between an ordinance which required Negroes and whites to occupy certain firmly designated portions of a bus, and one like Ordinance No. 251 adopting another more flexible formula to require separation of the races on buses. There is plainly no merit in appellants’ intimation that this ordinance merely provides for volun tary segregation; it compels segregation under penalty of fine and imprisonment. As the Court stated so recently in Baldwin v. Morgan, 287 F. 2d 750, 754 (1961) : “What is forbidden is the state action in which color (i.e. race) is the determinant. It is simply beyond the constitutional competence of the state to command that any facility either shall be labeled as or reserved for the exclusive or preferred use of one rather than the other of the races.” The appellants’ claim that there are material issues of fact rests in part upon its legal argument that its statute designating certain seats for the exclusive use of Negro and white patrons and prohibiting different races from occupying the same seat is materially different from the laws involved in the Browder case, supra, which required segregated sections on buses (see Appellants’ Brief, pp. 16-17). This is the basis for the defense that there is no “ segregation” on the buses, the argument being that this is so since there are no segregated sections set aside on each bus under the ordinance. It is clear that this does not present any factual question requiring a trial. There is no suggestion in the record that the defendants have aban 13 doned Ordinance No. 251 conceding its validity; rather defendants continue to maintain the contrary even in this Court. The formal issue raised by the denial that plaintiffs are Negroes, are residents of Baton Rouge, and use the buses is plainly insufficient to raise a genuine issue. The allega tion on these matters was made in a verified complaint, no specific averment of the answer alleged any conflicting facts—there was merely a general denial; and no opposing affidavit or statement indicating the unavailability of proof by affidavit was submitted (see Rule 56, Federal Rules of Civil Procedure). Where verified pleadings are submitted, even though not required by the rules, they may be treated as affidavits for the purposes of Rule 56. See Fletcher v. Norfolk Newspapers, Inc., 239 F. 2d 169 (4th Cir. 1956); Williams v. Kolb, 79 U. S. App. D. C. 253, 145 F. 2d 344 (D. C. Cir. 1944). Finally plaintiffs are not required as a prerequisite to an action to enjoin a bus segregation ordinance to show that they disobeyed the ordinance and risked arrest, or were arrested. See Baldwin v. Morgan, 251 F. 2d 780, 787 (5th Cir. 1958), and Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958). In the Morrison case the Court said: Since all transportation can be denied them [Ne groes] under the statute unless they obey the illegal requirement, it is not even apparent that they could put themselves in position to be arrested and prose cuted even if they sought to test their constitutional rights in that manner, which we hold they do not have to do (252 F. 2d at 103). It is settled that under Rule 56, Federal Rules of Civil Procedure, the courts can pierce formal allegations or de nials in pleadings and render judgment where there are 14 no genuine factual disputes. 6 Moore’s Federal Practice T156.04, pp. 2028 et seq. The basic principle applicable here was succinctly stated by Judge Cardozo (later Mr. Justice Cardozo) in Richard v. Credit Suisse, 242 N. Y. 346, 152 N. E. 110 (1926) : “The very object of a motion for sum mary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of trial.” CONCLUSION Appellees respectfully submit that the judgment of the Court below should be affirmed. Respectfully submitted, A. P. T ubeatjd 1821 Orleans Avenue New Orleans 16, La. J ack (xbebnbebg C onstance B akee M otley J ames M . N abbit, III D ebeick A. B ell 10 Columbus Circle New York 19, N. Y. Attorneys for Appellees