NAACP Detroit Branch v. Detroit Police Officers Association (DPOA) Petition for Writ of Certiorari and Appendix to Petition

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

MUFFIN MILES, JACK CRAWFORD, CATO LEE, 
OVETTA McGHEE, JUNIOR DAVIS, MARY 
ELIZABETH DAVIS, VIOLA LUCSAND, MANDY 
GLOVER, CALDONIA DAVIS, HARDY LEE, 
WILLIE RUSH, THREDDIE LEE STEWART, 
ELIJAH GORDON, JR., MAGGIE LEE TURNER, 
JERRY SCOTT, GRILLE COLEMAN, BRIGHT 
LEE, SIDNEY LOGAN, ELLEN SMITH, and 
OTIS TAYLOR,

ROBERT DICKSON, JR., E. R. MEADOWS, 
TODD MEADOWS, ALLEN MEADOWS, BESS 
GARDINER BECK, also known as Bessie 
Beck, La RUE HAIGLER, also known as 
Buster Haigler, E. L. JAMES, MARY 
JAMES, MACK CHAMPION, FRED HOLLADAY, 
and ERNEST SELLAR; JOHN DOE and 
RICHARD ROE,

A ppellants.

v . No. 24223

A ppellees.

BRIEF FOR APPELLANTS

Attorneys for Appellants

Vernon Z. Crawford 
578 Davis Avenue 
Mobile, Alabama

Morton Stavis 
7^4 Broad Street 
Newark, New Jersey 07102

OF COUNSEL:

William Kunstler 
Arthur Kinoy 
511 Fifth Avenue 
New York, New York 10017

Morton Stavis 
Dennis J. Roberts.

Benjamin E. Smith 
305 Baronne Street 
New Orleans, Louisiana



Citations j_v

Statement of the Case 1

Specification of Errors 6

Argument 7

I. THE MOTION FOR SUMMARY JUDGMENT WAS ERRONEOUSLY 
GRANTED AS THE DEFENDANTS FAILED TO DEMONSTRATE 
THE ABSENCE OF GENUINE ISSUES OF FACT. 7

A. The Legal Reguirements for Summary Judgment 7

B. Analysis of the Depositions. 12

1. The Plaintiff Threddie Lee Stewart 
and the Defendant E. L. James and
LaRue "Buster" Haigler. 14

2. The Plaintiff Cato Lee and the
Defendant LaRue "Buster" Haigler. 19

3. The Plaintiff Muffin Miles and the
Defendant Bess Gardiner Beck. 23

3. The Plaintiffs Elijah Gordon and 
Grille Coleman and the Defendant 
Mack Champion. 26

5. The Flaintiff Ellen Smith and the
Defendant Todd Meadows. 27

6 . The Plaintiff Jack Crawford and
the Defendant Robert Dickson. 23

7. The Plaintiff Sidney Logan and
the Defendant Fred Holladay. 28

C. The Interconnection of the Defendants. 29

D. The Atmosphere at the Deposition Taking
did not Afford the Trier of Facts the 
Opportunity for Evaluation of Either the 
Conflicts of Testimony or the Unreliability
of the Defense Testimony. 33

TABLE OF CONTENTS
Page

i i



*

E. The Standard for the Evaluation of 
the Deposition Testimony.

Page

37
II. THE TRIAL COURT ERRED IN IMPOSING COSTS 

AGAINST ATTORNEYS FOR PLAINTIFFS. 39
A . The Court Below had no Basis in Fact 

for Assessing the Costs herein Against 
the Attorneys. 4o

B. The Court Below had no Basis in Law 
for Assessing the Costs herein. 48

C. To Assess Costs Against the Attorneys 
Without a Hearing and Without Opportunity 
to Clarify the Situation was a Violation 
of Due Process of the Law. 52

D. The Assessment of Cost Against the Attorneys 
was contrary to the First and Sixth Amend­
ments to the Constitution of the United 
States. 56

CONCLUSION 59

i i i



CITATIONS
Cases Page

Adkins v. DuPont Co.,
335 U.S. 331 (1948) ..................................  59

Bardin v. Mondon,
2W " F . 2d 235 (2d Cir., 19 6 1) ......................... 51

Braun v. Hassenskin Steel Co.,
23 F.R.D.' i'63 (D.S.D., 1959) ......................... 48,52

Brookins v. State,
221 Ga. 181, 144 S.E.2d 83 (1965) ...................  38

Brown v. Allen,
34T U.S7 44'6 (1953) ..................................  38

Colby v. Klune,
178' F .2d 872 (2d Cir., 1949) ......................... 11

Coyne & Delany Co. v. G. W. Onthank Co.,
(s .d . iowa, 1950) 10 f .r .d . 435 rrrr................. .5 1

Elgin J. & E. Ry. Co. v. Burley,
325 U.S. 711 on reb. 327 U.S. 66l (1945) ............ 7

Farmer v. Arabian American Oil Co.,
379 U.S.''22.7(1964) ...................................  57

Gamble v. Pope & Talbot, Inc.,
307 F.2d “729 (3d Cir., 1962) ......................... 53,55,56

Gold Dust Corp. v. Hoffenberg,
87 F.2d 451" (2d Cir., 19 3 7) ..........................  49

Hamm v. Rock Hill,
379 U.S. 306' (1964) ..................................  38

Holt v. Virginia,
381 u.s.' 131 (1965) ..................................  58

In re Jess Brown,
346 F . 2d 903 (5th Cir., 1965) ........................ 58

In re Childs Co.,
'52 F. Supp. 89 (S.D. N.Y., 1943) ....................  48

In re McConnell,
370 U.S. 230 (1962) ..................................  59

iv



Page

Lefton v. Hattiesburg,
333 F .2d" 280 (5th Cir., 1964) ......................... 58

Lombard v. Louisiana,
373 U.S. 267 (1963) .................................... 38

Loudermilk v. Fidelity & Casualty Company of New York,
199 F • 2d 561 (5th Cir., 1952) ................ ....8,9,10,12

Masterson v. Pergament,
203 F .2d 315 (6th Cir., 1953) ......................... 42

Morrissette v. United States,
342 U.S. 246 (1951) .... ...............................  39

Motion _Pi_cture Patents Co. v. Steiner,
201 F. 63 (2d Cir., 1912) .............................  50,51

NAACP v. Button,
371 U.S. 415 (1963) .................................... 58

Nix v. Dukes,
58 Tex'. 98 (1882) ...................................... 43

Peterson V. Greenville,
373 U.S. 244 (1963) .................................... 37,38

Poller v. Columbia Broadcasting System,
;  368 u . s .  464 (1962) 77.7........ 7 ...........................................  8 , 9 , 1 0 , 3 3

Robinson v. Florida,
378 U.S. 153 (1964) .................................... 38

Sartor v. Arkansas Natural Gas Corp.,
321 u . s . '620 (1944) 7777777777777...................... 7

Shields v. Midtown Bowling Lanes,
11 Race Rel7 L. Rep. 1492 (M.D. Ga., 1966) ........... 38

Sioux County v. National Surety Co.,
275 u . s .  238 (1928) 777777777.......................... 48

Sonnentbeil v. Christian Moerlein Brewing Co.,
172 U.S. 401 (1899) 7..................................  11,3 0

State ex rel. Milwaukee v. Ludwig,
106 Wise. 226, 82 N.W. 158 (1900) ....................  43

C ase s  ( C o n t ' d )

v



Stevenson v. United States,
162 U.S. 313 "(1896) 777............................. 39

Toledo Metal Wheel Co. v . Foyer Bros. & Co.,
”“223 f . 350 (bth cir., 19 15) 77777777777.......... 50,5 1,53,54

United States v. Diebold, Inc.,
329 u . s .  654 (19627 7777777........................  7

United States ex rel. Goldsby v. Harpole,
"263 F .2d 7l (5th Cir., 1959) cert, denied 372 U.S.
915 (1963) ................. 7777..................  57

United States v. Harvey,
“ 250 F. Supp. 219 (E.D. La., 1966) ................  38

United States ex rel. Payne v. Call,
287 Fed7 520 (5th Cir., 1923) ....................  48

United States ex rel. Seals v. V/iman,
304 F.2d 53 (5th Cir., 1962) ...................... 57

Weiss v. United States,
227 F .2d 72 (2d Cir., 1955) cert, denied 350 U.S.
936 (1956) ................ 77777.777.77...........  52

White Motor Co. v. United States,
372 u . s .  253 (1963! 7777777777....................  8,9,10

Whitten v. Dabney,
171"_Co 1 o."621, 154 P. 321 ......................... 43

Constitution, Statutes and Rules 

Constitution:

First Amendment .................................  6,56

Fifth Amendment .................................  53

Sixth Amendment .................................  6,56

Statutes:

28 U.S.C. § 1927 ................................  49,50,51,
53,54

Cases  ( C o n t ' d )  Page

v i



Rules:

Rule 23(c), Federal Rules of Civil Procedure .... 42,47

Rule 54(d), Federal Rules of Civil Procedure .... 49

Rule 56(c), Federal Rules of Civil Procedure .... '7 40

Miscellaneous

2 Barron & Holtzoff, Federal Practice and Procedure
§ 570, (Rules ed. 19 6 1) ......................... 43

Book Review: Southern Justice,
54 Calif. L. Rev. 303 (1966) ....................  46

Canons of Professional Ethics, Canon 9
American Bar Association, p .8 (1957 ed. ) .......  47

Commission on Civil Rights Report, Voting,
(19 6 1) p. 26   35

6 Moore's Federal Pracitce (Spec. Supp. p. 11
preceeding p. 2001) ..............................  7

Morgan, "Segregated Justice", Southern Justice,
155 (Friedman ed . 1965)............................  46

New York Times (March 14, 19 6 7) p. 35 ............ 2

Note: 17 Corn. L. Q. 140 (1931) .................... 43

Note: 50 111. Bar J. 800 (1962) .................... 56

Stephen, 2 History of the Criminal Law III ...........  39

/ *

Page

v i i



i

STATEMENT OF THE CASE

On January 10, 1966, a class action complaint was filed 
in the United States District Court for the Middle District of 

Alabama by the plaintiffs seeking an injunction against the de­

fendants, individually and collectively, and all person acting 

in concert with them and all other landowners in Lowndes County, 

Alabama, enjoining said defendants, and others as indicated, from 

threatening, intimidating or coercing in any manner, economic or 
otherwise, for the purpose of interfering with the right of 

plaintiffs, or of any other person, to become registered to vote, 

and penalizing or punishing any person by economic sanctions, or 

otherwise, for having registered to vote or attempting to do so. 

More specifically, plaintiffs asked the Cburt below to enjoin the 

named defendants, extensive landowners, from evicting or termi­

nating the tenancy or sharecropping arrangements of the plaintiffs, 

or any other Negroes in Lowndes County, Alabama, by reason of 

their registering to vote, and, further, to enjoin the defendants 

from preventing the plaintiffs, or other Negroes, from returning 

to their former homes and resuming their tenancies or former 
sharecropping arrangements.

The background is familiar to anyone acquainted with the 

rural counties of the deep South. Lowndes County, as of 1964, 

had not a single Negro registered to vote. It is situated between 

Selma and Montgomery and figured prominently in the famous march

- 1 -



between those two cities in 1964— Mrs. Liuzzo was_ murdered 
* /

there.Encouraged by the passage of the Voting Rights Act of 

1965, the Negro community began a large voter registration drive.

This case deals with the response of the white community 
to that registration program.

The complaint alleged, in part:

"In an effort to prevent continued registra­
tion of Negroes and the consequent vesting of 
majority power in the Negro people, the defendant 
landowners entered into a conspiracy with numerous 
persons presently to the plaintiffs unknown, to 
intimidate, threaten, and coerce the Negro citi­
zens of Lowndes County by evicting them or 
threatening to evict them from their homes and 
lands, denying them credit, denying them an oppor­
tunity to continue sharecropping or tenant farming 
arrangements, and otherwise denying them their 
livelihoods and imposing economic sanctions on 
them by reason of their registration to vote and 
the impending exercise of their right of franchise."

To avoid unnecessary repetition we would respectfully 

refer this Court to pp. 14-29 of this Brief where we set out the 

basic facts by presenting the circumstances regarding several of 

the plaintiffs. We have set out this material because it is 

typical and amply illustrative of the facts. These case histories 

reduce themselves to the following: A state of affairs of remark­

able stability,persons living on their premises under various

l/ That peace has not yet come to Lowndes County is evidenced
by a New York Times article of March 14, 1967, p. 35, describ­
ing the burning of both a Negro church and the office of the 
Lowndes County Movement for Human Rights, Inc., the local 
anti-poverty organization, within 24 hours.

- 2 -



sharecropping and tenancy arrangements for decades and even 
generations--is suddenly disturbed throughout the County. There 

is only one fact which has occurred which explains the dramatic 

turn of events, and that is that the Negroes are asserting their 

right to a franchise; and this is not left to pure inference, be­

cause in case after case comments and remarks were made by various 

defendants or their agents which left no doubt as to the reasons 

for the action and the motives and purposes of the defendants.

Moreover, the intimate relations which exist among the 

several defendants indicate that the program under way does not 

represent the individual actions of separate landlords. The con­

currence in point of time of all these actions taken by the 

several landlords, in the light of testimony establishing their 

close business and social relations, leaves more than an inference 

that the evictions were the result of a general understanding 

among the defendants.

The prayer for relief sought that an injunction issue 

against the defendants enjoining them from threatening, intimi­

dating, or coercing in any manner, economic or otherwise, for the 

purpose of interfering with the right of any person to become 

registered to vote, or penalizing or punishing any person, whether 

by economic sanctions or otherwise, for having registered to vote 

or attempted so to register, and specifically enjoining the said 

defendants from evicting or terminating the tenancy or share- 

cropping arrangements of the plaintiffs or any other Negroes by

-3-



reason of their registering to vote, and if they have prior to 

the date of any injunctive order of this Court already effected 

such eviction or termination, then enjoing them from preventing 

the said plaintiffs or other Negroes from returning to their 

homes and resuming their tenancy or sharecropping arrangements.

It further sought appointment of United States Commissioners to 

protect the lawful franchise activities of citizens of Lowndes 

County.

Both plaintiffs and defendants served notice for taking 

the pre-trial depositions of opposing parties and these deposi­

tions were taken over a period of several days in February, 1966. 

On March 10, 1966 the Court below entered an Order that all pre­

trial discovery be completed by March 25 and that all parties 

file summaries of any depositions taken at their instance. On 

March 21 and April 8 further Orders were filed extending the 

time for filing, and between April 15 and May 28 all of the 

summaries and supplements to summaries of depositions had been 

filed. During this time defendants had filed motions for sum­

mary judgment, accompanied by the depositions and affidavits, 

and on May 26 the Court below set the motions for submissions on 

written briefs.

On June 15 the Court below entered its order and judgment

on defendants' motions for summary judgment and stated:

"Upon consideration of these several 
motions, the pleadings, requests for 
admissions and responses thereto,

- 4-



affidavits, approximately forty deposi­tions and the summarizatlons thereof, 
and the briefs of the parties, this 
Court concludes that there is no genuine 
issue between these plaintiffs and the 
defendants as to any material fact and 
that each of the defendants as above 
named is entitled to a judgment as a 
matter of law."

Futhermore, the Court below found that "justice requires the 

taxation of the costs against the attorneys who filed the case," 

and taxed said cost, amounting to One Thousand Five Hundred 

Forty and 80/100 Dollars ($15^0.80), against the attorneys of 
record for the plaintiffs.

On July 1 plaintiffs filed a motion for reargument of 

the motion for summary judgment and to vacate the order of June 

15. Said motion was denied on July 5* and on July 11, 1966, 

plaintiffs filed their notice of appeal to this Court.

It is important to note that at no time was an oral 

hearing on the motion for summary judgment ever held. The judg­

ment of the Court below was based solely on the briefs, deposi­

tions and papers filed with it. The Court never had an oppor­

tunity to make an evaluation of the credibility of the deponents 

upon observation of their manner. That observation of the 

deponents to evaluate their credibility before granting the 

motion for summary judgment was vitally important in this case 

is made clear from the detailed summary of the conflicting testi­

mony set out below. It is sufficient to state here that there 

was a vast amount of testimony showing disparity and contradic­

tions not only as between plaintiffs and defendants, but between

- 5-



the various defendants.

Furthermore, the taxation of costs against the attorneys 
for plaintiffs was not done by way of any motion, nor were 

counsel ever afforded any notice that the Court was even con­

sidering such a unique step. Denied any opportunity to offer a 

showing of the true facts, attorneys for the plaintiffs first 

knowledge of any question of costs came in the final order and 

judgment of the Court below. This most unusual and clearly 

invalid assessment was done without any opportunity being afforded 

by the Court below for the attorneys to be heard in argument or 

present testimony on the issue.

SPECIFICATION OF ERRORS

1) The Court below erred in granting defendants’ 

motion for summary judgment as there was a failure

to demonstrate the absence of genuine issues of fact.

2) The Court below erred in assessing costg against 

attorneys for the plaintiffs for the following 

reasons:

a. ) There was no basis in fact or in

law for this action.

b. ) Said action was a violation of the

Due Process Clause.

c. ) Said action was contrary to the First

- 6 -



and Sixth Amendments of the United

States Constitution.

ARGUMENT

I

THE MOTION FOR SUMMARY JUDGMENT WAS 
ERRONEOUSLY GRANTED AS THE DEFENDANTS 
FAILED TO DEMONSTRATE THE ABSENCE OF 
GENUINE ISSUES OF FACT.

A . The Legal Requirements for 
Summary 'Judgment

It was defendants burden., on their motions for summary 

judgment, to "show that there is no genuine issue as to any 

material fact and that the moving party is entitled to judgment 

as a matter of law." Federal Rules of Civil Procedure, Rule 

56(c); Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 

S.Ct. 724, 88 L.ed. 967 (1944); Elgin J & E Ry, Co. v. Burley,

325 U.S. 711, 65 S. Ct. 1282, 89 L.ed. 1886; on reh. 327 U.S.

661, 66 S. Ct. 721, 90 L.ed. 928 (1945); United States v.

Diebold, Inc.. 329 U.S. 654, 82 S. Ct. 993, 8 L.ed. 2d 176 (1962).

The recent amendments to Rule 56 have not altered the 

above standard governing motions for summary judgment. Advisory 

Committee Note to Rule 56(c), 6 Moore’s Federal Practice Special 

Supp. p. 11 preceding p. 2001:

."Nor is the amendment designed to affect

- 7-



the ordinary standard applicable to the 
summary judgment motion. So, for example:
Where one issue as to a material fact can­
not be resolved without observation of the 
demeanor of witnesses in order to evaluate 
their credibility, summary judgment is not 
appropriate. Where the evidentiary matter 
in support of the motion does not establish 
the absence of a genuine issue, summary 
judgment must be denied even if no opposing 
evidentiary matter is presented. .

In support of their motion, defendants submitted affi­

davits solemnly denying any malicious motive of interfering with 

plaintiffs' civil rights in connection with their undisputed 

actions whereby plaintiffs were excluded from defendants' lands. 

The Court below acknowledged that in cases where motive and in­

tent are crucial elements, a court should procede with caution 

in granting motions for summary judgment. However, it sought 

to avoid the rule laid down in Poller v. Columbia Broadcasting 

System, 368 U.S. 464 (1962), that "summary procedures should be 

used sparingly ... where motive and intent play leading roles, 

the proof is largely in the hands of the alleged conspirators, 

and hostile witnesses thicken the plot," at 473, by stating that 

"since the plaintiffs have not been deprived of their opportunity 

to cross-examine any of the defendants, the reasons for not 

granting the motions for summary judgment that existed in Poller 

v. Columbia Broadcasting System, 368 U.S. 464 (1962); White 

Motor Company v. United States. 372 U.S. 253 (1963); and Louder- 

milk v. Fidelity & Casualty Company of New York, 199 F. 2d 561 

(5th Cir. 1952), are not controlling in this case." Opinion, p.4.

- 8 -



However* this result can only be arrived at by a mis­

reading of Poller and the other cases cited. The Court seems to 

be distinguishing the cases based on the assumption that in the 

case at hand plaintiffs had the opportunity to depose the op­

posing parties* while in Poller only affidavits were before the 

court which granted the summary judgment. A close reading of 

the Court's opinion in Poller reveals that the affidavits "were 

supplemented by material taken from petitioner's depositions of 

Salant and CBS President Stanton"* at 468* and this fact is 

highlighted in the dissent of Mr. Justice Harlan where he stated:

"In passing on the motion for summary 
judgment* the District Court had before 
it more than the four affidavits of interested 
parties to which the Court's opinion seems 
especially to refer. In the record was the 
testimony of four key witnesses taken by pre­
trial depositions. Petitioner's counsel had 
examined Frank Stanton* President of CBS;
Richard Salant* a Vice President of CBS; and 
Thad Holt* who acted for CBS in procuring the 
option on the Bartell station. Petitioner's 
testimony was also in the record in the form 
of a deposition taken by respondents' counsel* 
and two affidavits submitted in Apposition to 
the motion for summary judgment." at 477.

Likewise* neither White Motor Co.*supra* nor Loudermilk. 

s_u£ra_, were cases which can be distinguished away upon any con­

tention that the party opposing the motion for summary judgment 

did not have the opportunity to cross-examine. In White Motor 

a summary judgment was granted on the admissions of the party 

opposing the motion because the Court felt that there was a per 

se violation of the statute involved. The granting of the summary 

judgment was reversed not because of a denial of an opportunity 

to cross-examine but because the complexity of the issue at hand
- 9-



required a full scale hearing. Furthermore, the dissent of 

Mr. Chief Justice Warren notes, at 275-6, that there was a "... 

deposition of the secretary of White Motor ...", so there was an 
opportunity to cross-examine.

Finally, Loudermllk v. Fidelity & Casualty Co. of New 

York, 195 F.2d 561 (5th Cir. 1952) is also a case where the 

parties had an opportunity to cross-examine, and nevertheless 

summary judgment was denied. There a motion for new was

granted to the defendant following a trial in which the issues 

were fully litigated before the court below. The plaintiff then 

moved for summary judgment "based on the pleadings and the 

transcript of the record made on the trial before the district 

judge , at 564. The Court below granted the motion for summary 

judgment based on testimony taken at the trial and the Court of 

Appeals reversed based on this evidence. Thus, the case cer­

tainly does not stand for the proposition that summary judgment 

was denied because of a lack of opportunity to cross-examine.

Therefore, the reason of the Court below that distinguishes 
the case at hand, that is, that here "the plaintiffs have not 

been deprived of their opportunity to cross-examine any of the 
defendants", must fall.

The Court in Poller stated at 473: "It is only when the

witnesses are present and subject to cross-examination that their 

credibility and the weight to be given their testimony can be 

appraised." In light of the fact that opposing counsel In Poller

- 1 0 -



did have the opportunity to cross-examine on depositions, the 

Court could only be concerning itself with the cross-examination 
of parties before the trier of fact, so that their credibility, 

as evidenced by their demeanor in testifying, could be weighed 
and appraised.

Where "motive and intent" are crucial elements, the issue 

of credibility is inevitably at stake. Thus, plaintiffs may not 

be deprived of their opportunity to cross-examine defendants and 

their witnesses and to have the <Sourt assess their demeanor upon 

final hearing. Sartor v. Arkansas Natural Gas Corp., supra; 

Sonnentheil v. Christian Moerlein Brewing Co.. 172 U.S. 401, 408, 

19 S. Ct. 233, 43 L.ed. 492 (1899)* In an applicable statement 

quoted and followed in Sartor, the Supreme Court had pointed out:

"... the mere fact that the witness 
is interested in the result of the suit 
Is deemed sufficient to require the credi­
bility of his testimony to be submitted 
to the jury as a question of fact."
Sonnentheil v. Christian Moerlein Brewing 
Co., supra, l72'“tJ.S. at 408. ~

This important principle of trial court observance of 

demeanor to appraise credibility in these situations has been 

enunciated on many occasions. The court in Colby v. Klune, 178 

F.2d 872, 875 (2nd Cir. 1949) stated that, "Particularly where, 

as here, the facts are peculiarly within the knowledge of defen­

dants or their witnesses, should the plaintiffs have the oppor­

tunity to impeach them at a trial; and their demeanor may be the 

most effective impeachment. Indeed, it has been said that a

- 1 1 -



witness1 demeanor is a kind of ’real evidence1; obviously such 

'real evidence' cannot be included in affidavits."
In Loudermllk, supra, at 565-566, this Circuit has said:

"This is peculiarly the kind of case 
where the triers of fact, whose business 
it is not only to hear what men say but 
to search for and find the roots from 
which the sayings spring, should be af­
forded full opportunity to determine the 
truth and integrity of the case."

B. Analysis of the Depositions.

All throughout the depositions of the defendants are 

statements which would lead a trier of fact to conclude that the 

entire truth was being withheld. Unfortunately, it was not 

feasible to summarize all of the testimony, a picture of the de­

meanor of the witnesses, or the impression created by their 

general comportment. Not only were the witnesses withholding 

the truth, but their manner was flippant, arrogant and intransi­

gent. This come through slightly in the depositions, if one 

reads them from cover to cover. It is impossible to convey it 

in a summary. However, a trier of fact, confronted with such 

a performance by the defendants would, without question, reject 

the glib motives the defendants claim in their affidavits as pure 

fabrications, which they patently are.
There were substantial conflicts and omissions within the 

testimony of the defendants, and many major conflicts between 

the testimony of the defendants and the plaintiffs. A thorough 

reading of the depositions shows that the substantial questions

1 2 -



of fact, of a nature to only be resolved at the trial of the 

cause, existed. A full hearing before the court would neces­

sarily be the only means for assuring an ascertainment of the 
truth.

Basically, plaintiffs contended that in the late summer 

and fall of 1965 a significant number of Negroes who had regis­

tered or attempted to register, or whose wives had registered, 

or who had engaged in civil rights activities or whose wives or 

families had done so, were suddenly deprived of their means of 

livelihood by the defendants. Financial arrangements which had 

been in effect with various plaintiffs for decades were suddenly 

terminated. Sharecroppers or tenant farmers were notified that 

they would have to give up the land and/or the houses they rented 

by the end of the year. One plaintiff was advised that he would 

not receive financing for the ensuing year; another plaintiff 

was deprived of hauling work which he had performed for years; a 

third plaintiff was required to pay off a mortgage which had been 

standing for three years. The pattern was clear. Pursuant to 

an obvious design, the defendants almost simultaneously "put the 

squeeze" on the Negroes, with the obvious purpose of discouraging 

the rest of the Negro population from exercising their civil 

rights. A brief synopsis of some of the depositions will amply 

demonstrate the unlawful scheme of the defendants, and make these 

conflicts apparent.

- 13-



1. The Plaintiff Threddie Lee Stewart and the

Defendants E.L. James and LaRue "Buster11 Haigler.

Plaintiff Threddie Lee Stewart has lived on and farmed 

the land of defendant E. L. James ever since 1946. ( 3 ^ ) -/  Each 

year since 1951 "Buster" Haigler has been advancing him money 

to farm (13). During these many years Haigler had never spoken 

to him about paying the entire debt off (1 9 ).

In March, 1965, Stewart attempted to register with the 

County officials (164). No one was allowed to register and a 

list was made by the County officials of all those who presented 

themselves that day (16 9). Haigler knew of the existence of the 

list of those who attempted to register, but he denied seeing 

it (Haigler, Deps.,55). Two days after he attempted to 

register (16 9) Stewart saw Haigler about getting a loan. At 

that time Haigler questioned him extensively about Negro voter 

registration in the county, (98, 154) and said "I thought you 

were with that riot crowd" referring to Dr. Martin Luther King (98).

t y  Numbers in parentheses refer to page number of deposition 
of T-hraddie- Lee Stewart,, unless .otherwise designated.



across theHaigler further told him that he would be "put ... 

fence from the white people" (109), that anyone who takes any 
part of the Civil Rights Act would be "crossed up with the white 

folks" (109), and that if Negroes take part in voter registra­

tion activities "it is going to bring difficulties there" (155). 

Instead of loaning him the money Haigler told him that he would 

first "talk to Mr. James on that" (98), although this had never 

been his practice in prior years . (170).

Two days after Stewart’s meeting with Haigler about the 

advancement Mr. James came to Stewart’s house (156). James 

questioned him in a threatening manner regarding civil rights 

activities and made inquiry as to whether Stewart was planning 

to move to Atlanta (the seat of Dr. King’s civil rights activi­

ties) (42,43,156). He further indicated that Haigler called him 

and told James about Stewart’s attempting to register (43,99) 

and that James "wanted to know which way you were going" (99).

In July, 1965, Stewart enrolled his daughter in the white 

school (107). Haigler sent for him, interrogated him at length 

concerning her application, asked him if anyone told him to en­

roll his child (ill), told him to withdraw his child's name, and 

implied that he might be put off James' land (ill).

Stewart made at least two subsequent attempts to register 

to vote (105,l6l) in July and August. His wife registered in 

July (106). Haigler again sent for him and on October 19, 1965 

told Stewart that he would have to pay off his debt in full (14, 

15).
- 15-



On November 24, 1965, James came to Stewart’s bouse and 

told Stewart that Haigler said "that be couldn’t carry you any 

longer" (30), that James would not give him any cotton acreage 

for the following year (3 1 ), and that be would have to be off 

the land by January 1, 1966 (32). The James family even refused 

to allow him to rent his bouse for the coming year (3 7).

Stewart was on the Executive Board of the Lowndes County 

Christian Movement (the local civil rights organization) (16 7) 

and worked actively to encourage Negroes to register and vote 

(16 7, 177, 179, 180). He did not know of any other tenants on 

the James land that worked to get others registered (176-179).

From the entire testimony of plaintiff Stewart it seems 

reasonably inferrable that Haigler, acting in concert with James, 

arranged to have him evicted from the land for his voter regis­

tration activity.

Defendant E.L. James testified to the following:

"I informed Threddie that Mr. Haigler 
had informed me that he was no longer going 
to advance Threddie, and in that case 
Threddie would have to move, because neither 
my mother nor her— the other heirs of the 
place, I didn’t use the words heirs to him, 
had not done any advancing and could not, 
and at that time he asked me if he could re­
move two doors from the house that he was 
living in, as they were special doors that 
he had put in himself— and if he could take 
down a fence that he had put up on the farm, 
to farm a small pasture for cows around his 
house, the livestock around his house. I 
informed him that he could. That was about 
all of the conversation." (James, Deps. 13).

- 1 6 -



James admitted that he was aware of Stewart's regis­

tration attempts and assumed that Haigler was also aware of that 
fact (James, Deps. 19). James stated, in reference to the 

attempts of Negroes to register, "It was common knowledge. Every­

one was discussing it to a certain extent." (James, Deps. 24).

He felt certain that the matter of Negro registration must have 

come up in some of his conversations with Haigler as they see each 

other quite often, socially as well as in business (James, Deps. 

25). Aside from his friendship with Haigler, other mutual friends 

were Robert Dickson, E.R. Meadows, and Todd Meadows ( James,

Deps. 26) and he said it was a good possibility that the regis­

tration drive in Lowndes County was discussed with that group. 

(James, Deps. 26-27).

James further testified that he received word from 

Haigler "that he wanted to talk to me about Threddie Lee Stewart, 

in view of all the attempts to register, whether he would be 

working the land next year or not in 1966" (James, Deps. 6 7).

In light of James' admissions regarding Haigler's concern 

with Stewart's voter registration activities, it is interesting 

to note Haigler's testimony on this subject. When Haigler was 

deposed he stated that he has been cutting back his loan business 

because of his family's request that he do so, and because a lot 

of land was going into cattle (Haigler, Deps. 26-27). It Is 

strange that he would single out Stewart to cut down on his loan 

business as Stewart was only advanced on 12 acres, a small

- 17-



proportion of the operation (James, Deps. 6 5), and that he 

continued advancing to the four other tenants on the James 

property (James, Deps. 48-49). However, subsequent testimony 
of Haigler revealed that of the 48 people he named as those to 

whom he was no longer loaning money (Haigler, Deps. 34-41,44,46, 

81-83), only three were discontinued at his insistence for being 

"mighty sullen" or "trashy" (Haigler, Deps. 34,35.*46). All of 

the rest either quit or moved on their own accord. In the deposi­

tion he specifically denied cutting off Stewart, "I didn't cut 

off any of them", and listed him among those who had "died, moved, 

or cut off themselves" (Haigler, Deps. 83). Haigler's deposition, 

taken on February 9, 19^6, was in direct contradiction to the 

testimony of his fellow defendant James. However, on May 31,

1966, Haigler gave an affidavit in support of the motion for 

summary judgment. At this time his recollection of the termi­

nation of Stewart is completely different from his testimony at 

the deposition taking. He said in his affidavit:

"I did not continue advancing Threddie 
Lee Stewart in 1966 due to the fact that 
he was a poor credit risk and as a matter 
of fact, he had never paid up his account 
at the end of any farming season. He was 
always in arrears and had never brought 
his account up to date. He would not 
attend his farming operation as he should."

It is interesting to note that it took Haigler 15 years 

to decide that Stewart was a poor credit risk; he had been ad­

vancing him funds since 1951. Still more interesting is his 

observation that Stewart "would not attend to his farming

- 18-



operation as he should." All through the depositions of Haigler, 

James, and Stewart, there is not one iota of criticism of 

Stewart's operation of his farm. He had been working this same 

land since 1946. There is also no testimony that he had changed 
his farming operation in any way from previous years. The only 

difference in behavior which appears in the record is that beginn­

ing in March 1965 , Stewart became active in the civil rights move­

ment in Lowndes County, began attending civil rights meetings, 

became an executive board member of the movement, attempted to 

register to vote, and actively encouraged other Negroes in the 

County to register. But perhaps this activity is exactly what 

Haigler has reference to when he says that "he would not attend 

to his farming operation as he should".

Although Haigler initially denied that he had refused 

to advance funds to Stewart for the next season and was demanding 

a full accounting, his subsequent admission of that fact poses 

a very clear question of fact. Stewart was cut off from his 

livelihood by defendants Haigler and James. Was the reason 

because of his voter registration activity or because, as an 

afterthought, he "was a poor credit risk"? This question of fact 

cannot be resolved by depositions and self-serving affidavits, 

but can only be resolved by a trier of fact at trial.c

2. The Plaintiff Cato Lee and the Defendant LaRue 

"Buster" Haigler.

Threddie Lee Stewart was not the only Lowndes County Negro

- 19-



involved in civil rights activity who felt the wrath of "Buster" 

Haigler, and had a long-standing financial arrangement suddenly 
and arbitrarily terminated.

In 1962 Haigler loaned Cato Lee funds with which to
* /build a house and secured this loan with a mortgage (6 ). 

Thereafter, Haigler made other money advances (7).

In July 1965.) Haigler sent for Lee (25) and, referring 
to a little notebook, said he understood that Lee had three 

children enrolled in the white school (26). He told Lee the 

children would not pass (2 7), that he had already talked to 

another man who agreed to withdraw Negro children from the white 

school (26,45), and that all the white people would be angry 

with Lee if he didn't withdraw his children (4-5). Haigler further 

informed Lee that E. L. James stated "that he is through with 

Cato" and "he ain't going to let you haul nothin' else for him" 

(27,33,44). In this conversation he also made other veiled 
threats (28).

At the end of October or beginning of November Haigler 

told Lee to get up the entire amount that was owing right away 

(13). Haigler said he asked that Lee withdraw his children from

t J  Numbers in parentheses refer to page number of deposition 
of Cato Lee, unless otherwise designated.

-2 0 -



the white school, and that Lee refused (14,24). He also asked 

Lee if he thought Martin Luther King would put up a house for 

him (14). In the course of this conversation Lee complained that 

he wasn't getting anymore hauling work from whites. Haigler re­

sponded, "Cato, didn't I tell you this was coming". "Haven't any 

of your white friends asked you to do any hauling?" (34). He said 

it looked like Lee cared more for Martin Luther King than he did 

for him (35). Haigler also referred to civil rights workers as 

"the enemy crowd" (47), and cursed them viciously in foul language

(69).

In 1965 and previous years Lee had hauled extensively for 

many white people in Lowndesboro (49). Among them he listed 

"Buster" Haigler, Bob Dickson, E.L. James, Buster Meadows and 

Allen Meadows (49*50). In February 1966, he was not engaged to 

haul for any of the defendants or any other whites (5 1 ). No 

white person had given him any hauling work since approximately 

September, 1965 (52).

Haigler admitted that he talked to Cato Lee about his 

children having applied to the white school (Haigler, deps. 57), 

and this has been acknowledged by the trial court, Opinion. p. 3 . 

The only other mention of Lee in Haigler's deposition is when he 

lists him among those that "died, moved, or cut off themselves".

He testified that "I didn't cut off any of them" (Ha igler, Deps .83). 

However, in his affidavit in support of the motion for summary 

judgment he no longer insists that he didn't cut Lee off (Haigler,

- 2 1 -



Deps. 83) but rather admits that he did, and the reason for 

cutting him off was that the debt "was several years past due".

The testimony is uncontradicted that Lee previously hauled 
all of James’ hay and cattle (50) and that James was now not doing 

any business with him. James does not deny this and does not try 

to explain it away, nor does he deny his purported conversation 

with Haigler in which he discussed his intent to boycott Cato 
Lee (27,38,44).

One cannot isolate Lee's act of enrolling his children in 

the white school for which "... there is strong indication that 

Haigler terminated his financial arrangements..." Opinion, 3, and 

not infer from it "punishment" for a total involvement in civil 
right activity, including voter registration.

The lower Court opinion acknowledges that Lee was fore­

closed for asserting his rights. It is apparent from the record 

that one of the reasons for these economic sanctions was his 

enrolling his children in the white school. The question to be 

determined at a hearing is whether this was the sole reason or 

whether other civil rights activity, such as voter registration, 

also played a role. Having found a showing of economic harass­

ment because of the exercise of one protected right, an Inference 

may be drawn that the cause of the harassment went deeper than 

that. Certainly, having made this much of a showing, plaintiff 

should not be foreclosed of an opportunity to prove his conten­

tions at a hearing where defendants' demeanor in testifying can

-22



be given close judicial scrutiny.

3. The Plaintiff Muffin Miles and the Defendant 

Bess Gardner Beck.

Mr. Muffin Miles, with a family consisting of 11 people,
* /lived on the land of Mrs. Bess Beck for about 10 years (6).-y He 

attempted to register in July of 1965 (11) and his wife registered 

(17). Both he and his children had attended mass meetings (59,92). 

He fed civil rights workers at his home (60) and as far as he knew 

he was the only person in Lowndes County who would feed them (91). 

One of his daughters had gone out of the state on civil rights 

activity (60) and he didn't know of any other family whose 

children had gone out of the state in this regard (96).

On November 6, 1965, he was informed by Mrs. Beck that he 

would have to be off her land by January 1, 1966 (8,88). She 

told him that she couldn't let him stay because his daughter was 

"running all up yonder to New York or Washington or somewhere, 

butting into this mess of Martin Luther King" (8, 39). She did 

not say anything about his two mules and two cows occasionally 

getting loose (40). He further testified that she "told all of 

her people not to become involved" or that "someday they would 

get just what they were looking for" (6 2).

1/ The numbers in parentheses refer to page numbers in the 
deposition of Muffin Miles, unless otherwise designated.

- 23-



Defendant Beck denied that she made any remarks about 

Dr. King or Miles' daughter (Beck, Deps. 12). She claimed that 

her reason for putting Miles off the land was that he was "not 

a desirable tenant" (Beck, Deps. ll), as his stock strayed and 

he worked in Montgomery (Beck, Deps. ll). However, when she told 

him to vacate the premises she did not articulate any of these 

reasons as "he didn't ask"(Beck, Deps. 18). She also testified 

that he was the only one she put off the land (Beck, Deps. 8) 

and that she had not put anyone off in the past two years (Beck, 

Deps. 9).

Defendants, in their motion for summary judgment stressed 

the fact that there was no testimony or evidence that Miles' 

tenancy was terminated because of his having attempted to register 

to vote, and that there was no conversation about voter registra­

tion between Beck and Miles.

If, to sustain their position against a motion for summary 

judgment, plaintiffs must prove an actual conversation in which 

the defendant threatens plaintiff with reprisals for specific 

registration activity, then, in this particular Instance, the 

proof is not readily available. However, we would respectfully 

submit that the proof requirements to withstand the motion for 

summary judgment are not so hopelessly stringent. From the testi­

mony taken as a whole it is reasonably inferable that Miles was, 

in fact, evicted because of civil rights activity on the part of 

himself and those under his control. Here plaintiff and his wife

- 24-



both registered or attempted to register. Plaintiff attended 

meetings of the civil rights movement and his children were 

active participants in all phases of civil rights activity, es­
pecially one daughter whose activities particularly angered 

defendant Beck. When defendant Beck ordered plaintiff Miles from 

her land without stating a reason and revealed her displeasure 

at that "mess of Martin Luther King" she was punishing him for 

voter registration activity as clearly as if she had articulated 

that as her reason for the ''termination of the tenancy. The 

eviction stands to notify not only the Miles family, but every 

other Negro in Lowndes County, Alabama, that voter registration 

will not be tolerated. Defendant Beck, although unable or un­

willing to give a reason which did not involve civil rights 

participation at the time of the eviction, sought to explain her 

motivations at the deposition taking. She stated that she didn’t 

explain the termination of a ten year tenancy because "he didn't 

ask" (Beck, Deps. 18) but that the reason for the eviction was 

that he was "not a desirable tenant" (Beck, Deps. ll). From her 

testimony it appears that one of the two factors which contri­

buted to this undesirability was that he worked in Montgomery so 

that he was not home to farm. However, his wife and nine children 

did continue to operate the farm (28). It also appears that she 

had three other tenants who "live there and come to Montgomery" 

(Beck, Deps. 8) but she did not ask them to leave.

- 25-



4. The P l a i n t i f f s  E l i j a h  Gordon and G r i l l e  Coleman

and the Defendant Mack Champion.

Mr. Gordon lived all his life on land now owned by 
Mack Champion (Gordon, Deps. 4). His wife registered to vote 

(Gordon, Deps. 31). On Thanksgiving Day 1965, Champion told him 
that he would have an eight-acre allotment. A week later 

Champion told him that he would have no allotment (Gordon, Deps.6). 

He told him that he did not want any "civil righters" on his 
place (Gordon, Deps. 46-47).

After the institution of this action, Champion and his 

attorney took Gordon to the U.S. Commissioner in Montgomery 

(Gordon, Deps. 40) and then took a written statement from Gordon 

regarding the subject matter of the action (Gordon, Deps. 14-17).

Mr. Coleman lived on land now owned by Mack Champion for 

19 or 20 years (Coleman, Deps. 30). His wife registered to vote 

in June or July of 1965 (Coleman, Deps. 13). Coleman attended 

two civil rights mass meetings (Coleman, Deps. 36). In July 1965, 

Champion told him that he knew his wife had registered (Coleman, 

Deps. 1 7,19). Before Christmas 1965, Champion told him that he 

could not have the land for 1966 (Coleman, Deps. 6,l6 ). He did 

not give him any reason for this (Coleman, Deps. 6 ).

After the institution of the action, Champion asked him 

to come to Montgomery to sign a statement about the case (Coleman 
Deps. 33-34).

- 2 6 -



5.  The P l a i n t i f f  E l l e n  Smith and th e  D efendant

Todd Meadows.

For two years (Smith Deps. 6 ) Mrs. Smith rented a house 

from Henry Sellers, a Negro (Smith Deps. 10), who rented the bouse 

and other property from Mrs. Hagood and her daughter Snooky Gordon. 

Todd Meadows then leased the land from Mrs. Hagood for the year 

1966 (Smith Deps. 23). Mrs. Smith registered to vote in August 

(Smith Deps. 10,31). Three of her brothers, Hardy Lee, Cato Lee, 

and Bright Lee, are plaintiffs in this action (Smith Deps. 32,33). 

Another brother, Amos Lee, also had to move (Smith Deps. 32). Be­

fore Christmas 1965, Henry Sellers told her that Todd Meadows had 

said that she had to move by January 1st, as did Sellers and her 

brother, Bright Lee (Smith Deps. 9,16,22,40).

Todd Meadows testified that he leased the land for the 

year 1966 for cotton acreage. He wanted the tenants off the land 

as they worked elsewhere and he wanted tenants who would work the 

land. He did not ask them if they were interested in working the 

land, nor did he have any new tenants in mind when he told them to 

leave the land. Moreover, by the end of February, with cultivating 

season beginning in April or May, he still did not have any tenants 

(Todd Meadows Deps. 24).

The unusual circumstances of Mrs. Smith being thrown off 

the land concurrently with her brothers is especially significant 

in light of the close interconnections between Mr. Meadows and the 

other defendants. Particularly is this so since Mr. Meadows own 

explanation is self-contradictory.

- 2 7 -



6. The Plaintiff Jack Crawford and the Defendant 

Robert Dickson.

Mr. Crawford was 82 years old, hard of hearing and nearly 
* /

blind (4,8). He lived on land owned first by Robert Dickson's 

father and then by Dickson, for 47 years (23). Crawford register­

ed to vote in August 1965, as did Mrs. Nancy McCall and his grand­

child, who were living with him (34). In November 1985 (8), Dick­

son told Crawford that he would have to move because Dickson was 

offended by an article which appeared in Look Magazine (7,8,10,14) 

about civil rights problems in Lowndes County, and in which 

plaintiff Crawford was quoted. While he argues that he considered 

the article to be a slur against his father, this explanation can 

hardly be accepted at face value in light of the entire pattern 

which the depositions revealed.

7 . The Plaintiff Sidney Logan and the Defendant 

Fred Holladay.
In i960 defendant Holladay loaned plaintiff Logan $3000. 

secured by a mortgage. The mortgage was for ten years and called 

for annual payments of $350.00 each (Logan Deps. 5,6,7). Logan 

did a considerable amount of hauling work for Holladay--in some 

years amounting to approximately $1000.00 (Holladay Deps. 22) At 

the end of each year they would apply his earnings from hauling 

against his debt (Logan Deps.12). Prior to December 1965,

Holladay never asked for any payments on the mortgage other than

Numbers in parentheses refer to page number of deposition 
of Jack Crawford, unless otherwise designated.

- 2 8 -



the annual settlement (Logan Deps. 8,13). In December 1965, with­

out any explanation, Holladay demanded the entire unpaid balance 

(Logan Deps. 8,13). That this was not unrelated to the activities 

in Lowndes County is revealed by the relationship between Holladay 
and the various defendants, discussed below.

We deem it unnecessary at this point to detail the testi­

mony with respect to the remaining plaintiffs or parties or the

circumstances under which they were asked to leave, for this is

hardly the time for a final adjudication of the rights of the
*/parties. The same kinds of conflict of questions of fact between 

the testimony the other plaintiffs and defendants repeated 

throughout the depositions and its inclusion in this brief would 

only be cumulative. It is sufficient to state that these key 

questions exist and must be resolved by the trier of fact at a 

hearing where witness credibility can play a major demonstrative 

role.

C . The Interconnection of the Defendants 

The intimate relations which exist among the several de­

fendants indicate that the program under way does not represent 

the individual actions of separate landlords. The concurrence in 

point of time of all these actions taken by the several landlords, 

in the light of testimony establishing their close business and 

social relations, leaves more than an inference that the

*7 We have, of course, covered all of the defendants other 
than Allan Meadows whose motion for summary judgment was not 
supported either by affidavit or deposition.

- 2 9 -



evictions were the result of a general understanding among the 

defendants. The testimony of the defendants and their "interest 

in the result of the suit" (Sonnentheil v Christian Moerlein 

Brewing Co., 172 U.S. 1*01, 408 (1899) must also be carefully 

scrutinized.

According to the i960 United States Census Lowndes 

County has a population exceeding 15,^00, and covers a land area 

of 716 square miles. Yet among the defendants we find that all 

of them are either related by blood to at least one other defen­

dant or are close personal friends. The full impact of the con­

spiratorial aspect of the movement to expell plaintiffs from 

Lowndes County is appreciated when the interconnection between 

the various defendants are outlined:
E. L. James testified that he sees Buster Haigler quite 

often, that they visit at each others homes and play cards to­

gether (James Deps. 25,26). They number among their mutual 

friends, with whom they have personal contacts at home or card 

parties, Robert Dickson, Todd Meadows and Buster Meadows (James 

Deps. 26). There is a group of 6 or 8 who play card periodically 

(James Deps. 33).
LaRue "Buster" Haigler acknowledged that he has been 

knowing James "ever since he was a kid" (Haigler Deps. 50) al­

though he did not mention their frequent visits or card games 

(James Deps. 26). He has also been knowing Buster Meadows all of 

his mature years (Haigler Deps 4) and knows Todd Meadows and his

-3 0 -



father before him (Haigler Deps. 49). He testified that he was 

related to Champion (Haigler Deps. 49), has been knowing Dickson 

and his family all of his life (Haigler Deps. 49), also knows 
Bess Beck and her parents (Haigler Deps. 50), and has known 
Holladay for a long time. (Haigler Deps. 51).

Todd Meadows is the nephew of Buster Meadows. He sees 

his uncle once or twice a week. They are adjoining land owners 

(Todd Meddows Deps. 17). Allen Meadows is a second or third 

cousin. Todd Meadows sees James at church and at some Christmas 

parties (Todd Meadows Deps. 18). He used to date Haigler's 

daughter and was in his home quite frequently but now "I very 

rarely see him, just at Farm Bureau Meetings or cattle meetings, 

Cattle Association rather or something like that or social 

functions together." (Todd Meadows Deps. 18). Likewise, his 

relationship with Dickson is a business one and he sees him at 

church, but "we have very few social contact " (Todd Meadows 

Deps. 17). This is in direct contradiction to the testimony 

of James that he and Haigler have "personal contacts at home or 

card parties and so forth" with Robert Dickson, Todd Meadows and 

E.R. "Buster" Meadows (James Deps. 26). Todd Meadows knew 

Champion at school but rarely sees him now (Todd Meadows Deps. 17) 

and sees Holladay at Dickson's place of business (Todd Meadows 
Deps. 18).

E. R, "Buster" Meadows testified that he sees his 

nephew Todd regularly (E.R. Meadows Deps. 19). He is also

- 3 1 -



related to Allen Meadows, but seldom sees him (E.R. Meadows Deps. 

19,20). He also admits to seeing James regularly and visiting 

him socially (E.R. Meadows Deps. 20) but testified that be only 

sees Haigler when be goes to Haynesville to "pay taxes or buy 

my truck tags or something like that ..." (E.R. Meadows Deps. 20). 

This is contradicted by James who says that he, Haigler and 

Buster Meadows are mutual friends and they have personal contacts 

at home (James Deps. 25). Buster Meadows sees Dickson at his 

stockyards and at church but says he doesn't play cards "but very 

seldom, maybe once or twice during Christmastime" (E.R. Meadows 

Deps. 19). He also sees Holladay out at Dickson's place of 

business (E.R. Meadows Deps. 21).

Robert Dickson, Jr. is in the stockyard business and 

has business dealings with all of the defendants and has known 

them all for a long time, although he does not know Allen Meadows 

as well as he knows the others (Dickson Deps. 17).

Mack Champion lives in the same town as Haigler and is 

related to him (Champion Deps. 36). He is a social acquaintance 

of Dickson (Champion Deps. 33) and Todd Meadows, having gone to 

school with the latter (Champion Deps. 3*0 • He has known Buster 

Meadows (Champion Deps. 3*0 and Mrs. Beck all of his life (Cham­

pion Deps. 35). He has only known James in the past few years 

and their contact was mostly at church (Champion Deps. 37) but 

has known Holladay well and had known him all of his life.

Fred Holladay at first seemed reluctant to admit know­

ing the other defendants. When asked about Dickson his response

- 3 2 -



was, "I believe I know him"(Holladay Deps. 29). However, he 

later admits to knowing Dickson all of his life (Holladay Deps. 

29). He also has known Todd Meadows, Buster Meadows, and Macrk 

Champion all of their lives, and has known James 25 or 30 years. 

Holladay Deps. 30). He sees Mack Champion at least once a week 

(Holladay Deps. 68). He does not know Allen Meadows, but is a 

first cousin of Bess Beck (Holladay Deps. 29).

The connections, relationship, and friendship between 

Dickson, James, Haigler, and the Meadows' is especially interest­

ing in light of the fact that all of them, with the exception 

of Todd Meadows, were former customers of Cato Lee’s hauling 

operation and have all since terminated his services.

D. The Atmosphere at the Deposition Taking 
did not Afford' the' Trier of Facts the 
Opportunity for Evaluation of Either 
tne Conflicts of Testimony'"or fch'e Unre­
liability of the Defense Testimony.

The question of opportunity to cross-examine by means 

of deposition taking, raised by the Court below as the point on 

which to distinguish Poller v. CBS, 368 U.S. 464 (1962), must be 

viewed in light of the framework in which this "opportunity" was 

presented. Unfortunately, it is impossible to convey the atmos­

phere of the deposition taking, the hostility and arrogance of 

the defendants. However, we feel it is important to set out 

excerpts of the testimony of the defendants to sustain our con­

tention that even assuming arguendo that depositions may be

- 3 3 -



considered the equivalent of cross-examination for the purpose of 

whether a summary judgment should be granted in some cases, they 

certainly cannot serve that purpose here.

We are not dealing with ignorant, illiterate defendants 

who would have genuine difficulty in understanding a question, 

or who would not be cognizant of a series of events of great 

social significance which transpired in their county, but rather, 

we are dealing with successful landowners and businessmen, several 

of whom are college educated.

Defendant James testified that he had casual conver­

sations regarding Negro voter registration with various groups 

on the streets (James Deps. 24,25) and that there was a good 

possibility that he discussed the voter registration drive with 

Dickson, Todd Meadows, Buster Meadows, and Haigler (James Deps. 

26,27). Haigler stated that everyone knew of Negroes trying to 

register (Haigler Deps. 52) and Todd Meadows agreed that Negro 

voter registration was a fairly common subject of conversation 

with the people with whom he visited (Todd Meadows Deps. 16).

Strangely, Dickson did not know and "hadn't heard tell" 

that Negroes had difficulty in registering (Dickson Deps. 21). 

Although he had two and a half years of college he was not curious 

as to why the federal registrars were in the county (Dickson Deps. 

22) and he took it as a routine matter (Dickson Deps. 25). He 

said that the Selma to Montgomery march was not discussed widely 

with anybody that he talked to (Dickson Deps. 34). Although he

-3 4 -



knew that the Student Non-Violent Coordinating Committee was SNCC 

he did not know what SNCC was (Dickson Deps. 62). He also testi­

fied that there were Negroes registered in Lowndes County prior 

to March 1965 (Dickson Deps. 71) and that whites had voting pro­

blems in Alabama until the passage of the Civil Rights Bill 
(Dickson Deps. 70).

Holladay testified that there were 4 or 5 Negroes on 

the poll list in 19^8 or 1950 (Holladay Deps. 3 1 ) 7 With the 

same insouciance that characterized Dickson's testimony he stated 

that he did not discussed Negro voter registration with anyone 

(Holladay Deps. 32) and did not know of any difficulties in con­

nection with voter registration (Holladay Deps. 33). Furthermore, 

he did not know anything about civil rights activities in the 

county in 1965 (Holladay Deps. 52).

Mack Champion, a graduate of Auburn and a school teacher 

in the Lowndes County Public school system actually claimed that 

he did not know what the lawsuit against the Lowndes County Board 

of Education was for (Champion Deps. 116).

Unfortunately, the attitude of mockery was not confined 

to the defendants alone. The record is replete with hostility 

and barbed attacks on the attorneys for plaintiffs by defendants1 

counsel. Perhaps the one remark most indicative of the atmosphere 

and attitude that prevaded the entire sessions is found on page 66

^_/ As of i960 Lowndes County had no Negro registered voters. 
1961 Commission on Civil Rights Report, Voting, p. 26.

- 3 5 -



of the Holladay deposition:

Mr. Quaintance: (Attorney for the Justice

Department): "That is what

Mr. Kohn said, Nigger."

Mr. Kohn (Attorney for defendant Robert Dickson,Jr.)

"I want to say for the record 

that I am going to continue to 

say it as long as I live."

With testimony of this nature being elicited at the 

deposition taking, and with the atmosphere of hostility and in­

tolerance-. that prevailed it seems fairly evident that it was 

impossible to engage in a successful pursuit of the truth and that 

the opportunity to cross-examine which may normally be available 

at a deposition taking cannot in any way be here construed as 

sufficient for the purpose of weighing it as a factor in deciding 

whether to grant the motion for summary judgment.

Another factor which also affected the depositions and 

destroyed their use as a basis for final adjudication of fact was 

the atmosphere of harassment. The detailed examination of the 

plaintiffs as to the mechanics of the lawsuit— how they retained 

counsel, whether they knew that a complaint was filed, etc., could 

not but have had the effect of intimidating the plaintiffs, which 

of course was what was intended.

We will discuss this in detail below, but feel it is 

necessary here to point out that even after a conference in which

-3.6-



the Court below advised counsel that they should avoid this 

trivia and get on with the substance of the action, counsel for 

the defendants persisted in this uncalled for line of questioning. 

Counsel would not have dared to do this in open court and had 

the interrogation been pursued in open court before the trier 

of fact the plaintiffs would not have been inhibited in their 

testimony.

E. The Standards for the Evaluation of 
the Deposition Testimony.

This Court has, of course, on many occasions made clear 

that it has a thorough understanding of the intricacies and sub- 

leties of the denial of rights to Negroes in the South today.

This case is but another example of the need for sophisticated 

scrutiny. To the extent that what is involved is proof of motive 

and intent, this Court is of course well aware that currently 

it is no longer fashionable to admit that one is denying Negroes 

their constitutionally protected rights.
In the earliest civil rights cases those parties who 

sought to deny to Negroes their constitutional rights were out­

spoken regarding their motive and intent. Restaurant owners 

didn't tell Negroes they couldn't come in because the restaurant 

was full, or because they weren't properly attired, nor did they 

turn them away without explanation. The made their reasons for 

refusal very plain. See, for example, Peterson v. Greenville,

- 3 7 -



373 U.S. 244, 246 (1963)j Lombard v. Louisiana, 373 U.S. 267, 268

(1963); Robinson v. Florida, 378 U.S. 153, 154 (1964); Hamm v.

Rock Hill, 379 U.S. 306, 309 (1964). By the same token the old 

jury cases which developed were virtually uncontested regarding 

the Intentional exclusion of Negroes. See, Pierre v. Louisiana, 

306 U.S. 354, 361 (1939). But now, in light of the Court’s action 

in attempting to strike down every effort to withhold the vest­

ments of first class citizenship, the opponents of civil rights 

have grown much more subtle. Negroes who seek service in places 

of public accomodations are given various reasons why they cannot 

use the facilities, none of which have anything to do with race. 

See record in Shields v. Midtown Bowling Lanes, 11 Race Rel. L. 

Rep. 1492 (C.A. No. 853, M.D. Ga., Albany Div., Feb. 8, 1966). 

Landlords who evict Negroes from tenancies of long standing do not 

articulate any reason. United States v. Harvey, 250 F. Supp. 219 

(E.D. La., 1966). Jury commissioners testify that they follow the 

jury statutes to the letter although great numerical inequality 

still exists. Brown v. Allen, 344 U.S. 446, 480-481 (1953); 

Brookins v. State, 221 Ga. 181, 144 S.E. 2d 83 (1965).

No longer are questions of a subjective nature such as 

"intent" blatantly answered for us, but we must draw inferences 

from the facts. To establish conclusions of a subjective 

character, one must offer in proof, material, objective facts 

from which the inference of subjectivity may or may not be drawn 

by the trier of facts. Perhaps the leading case explaining this

- 38-



mode o f  p r o o f  i s  S t e v e n s o n  v.  U nited  S t a t e s , 162 U .S .  313 ( 18 9 6 ):

"Malice in connection with the crime 
of killing is but another name for a cer­
tain condition of a man's heart or mind 
and as no one can look into the heart or 
mind of another, the only way to decide 
upon its condition is to infer it from 
the surrounding facts, and that inference 
is one of fact for a jury." at 320.

See also, Morissette v. United States, 342 U.S. 246 (1951);

Stephen, 2 History of the Criminal Law III. Once these facts have

been testified to, inferences going to subjectivity can be drawn.

The substantial conflicts in testimony and the existence 

of valid, unresolved questions of fact require this Court to 

reverse the granting of the summary judgment.

II

THE TRIAL COURT ERRED IN IMPOSING 
COSTS AGAINST ATTORNEYS FOR PLAINTIFFS

Having erroneously granted the motion for summary 

judgment, the court’s determination that plaintiffs’ attorneys 

must bear the costs must fall. However, assuming for the sake 

of argument that it was appropriate to grant a summary judgment 

in this instance, the court's determination as to the taxation 

of costs must nevertheless be reversed because it was without 

power to assess costs against the attorneys for the plaintiffs, 

and even if the court had this extraordinary power its action 

in assessing these costs without a hearing or notice was a 

denial of due process.

-39



A . The Court Below had no Basis In 
Fact for Assessing the Costs 
herein Against the Attorneys.

In its opinion entered on the 15th day of June, 1966, 
the Court stated:

"The testimony of the plaintiffs as 
now presented in several depositions re­
flects that none, or practically none, 
of the plaintiffs specifically authorized 
the filing of this lawsuit, or, as a 
matter of fact, realized that it has been 
filed until they were called upon to 
appear for the purpose of testifying."
(R. 369 [op.5 ]).

The Court below then went on to state that it assumed 

that "representatives of certain ’Civil Rights Organizations’ 

contacted these plaintiffs" and employed the attorneys who filed 

this action. Therefore, the court held that, "justice requires 

the taxation of costs against the attorneys who filed the case." 

(R. 369 [op.5]).

In the interest of correcting this erroneous impression 

on the part of the Court below, appellants filed a motion for 

reargument under Rule 56, F.R.C.P. on the 1st day of July, 1966 

(R. 371-383). On July 5, 1966, the Court below denied said 

motion (R. 38^) without argument.

As appellants' motion for reargument sets out in detail 

a clarification of the facts we refrain from burdening the Court 

with a lengthy repetition, and respectfully refer said motion 

to the Court's attention. However, we do wish to emphasize some 

of the matter set out in said motion, below.

-4 0 -



The Court erred when it held that "none,, or practically

none of the plaintiffs specifically authorized the filing of

this lawsuit." On file as part of the record in this case are

copies of retention agreements, executed by each of the plaintiffs

below authorizing the attorneys

"to institute and prosecute such liti­
gation in Federal and State Courts as 
they may deem appropriate to stop whole­
sale evictions by plantation owners 
without justifiable reason or notice, to 
take such steps by litigation or other­
wise to stop such intimidation of Negroes 
who have registered to Vote."

All of these retention agreements were obtained prior to the 

institution of this litigation.

During the course of the deposition taking it became 

clear that defendants below were purusing the issue of retention 

of counsel and the facts surrounding the institution of the action 

Mr. William Messing, one of the attorneys representing the plain­

tiffs at the deposition taking, sought to cross-examine with 

respect to these matters, see Affidavit of William L. Messing, Esq 

appended to motion for rehearing, supra (R. 377-383)* to estab­

lished the fact that there was written authorization for the 

institution of this action. As defendants' counsel objected to 

this line of examination, the matter was presented to the Court 

below. Judge Johnson stated "that he was not interested in trivia 

like the circumstances under which the plaintiffs counsel were 

retained or the action instituted" and admonished counsel to get 

on with the substance of the action (Messing affidavit, supra,)

(R. 378).
-l+l-



In view of this ruling Mr. Messing did not deem it 

appropriate or necessary to submit the written retainers. However 

despite the ruling of the Court below, defendants continued to 

question plaintiffs regarding these irrelevancies.

There are really two separate and distinct questions 

here, but unfortunately they seem to have become oonfused and 

intertwined. The first issue is whether the plaintiffs retained 

the attorneys who represented them in the course of the litigation 

Above, we have made it demonstrably clear that this question 

must be answered affirmatively. The signed retainers are a part 

of the record before this Court (R. 38O-383). Therefore, plain­

tiffs' attorneys were authorized to act and just because a group 

of the plaintiffs may not have understood some of the nuances of 

the litigation, this in no way can be the basis of a finding that 

the attorneys were not retained by plaintiffs.

The second issue which has been mixed with the question 

of whether counsel acted without the authorization of the plain­

tiffs is whether some of the plaintiffs were in effect seeking 

to withdraw from the litigation during the deposition taking. 

Assuming arguendo that some plaintiffs were seeking to withdraw 

from the litigation, several distinct sub-issues are raised.

Firstly, plaintiffs in a class action may only withdraw 

with the approval of the court. Rule 23(c), Federal Rules of 

Civil Procedure; Masterson v. Pergament (6th Cir., 1953) 203

F .2d 315.

4 2 -



The reason for the Rule is quite apparent.

"The purpose of this provision is 
the protection of other members of the 
class against unjust or unfair settle­
ments in case a plaintiff who starts 
the action become faint hearted before 
its completion or secures satisfaction 
of his individual claim or compromise."
2 Barron and Holtzoff, Federal Practice 
and Procedure § 570, at 331 (Rules ed.
1961).

See also, Nix v. Dukes, 58 Tex. 98 (1882); Note, 17 Corn. L.Q.

140 (1931)] Whitten v. Dabney. 171 Colo. 621, 154 P. 312, 316; 

State ex rel. Milwaukee v. Ludwig. 106 Wise. 226, 82 N.W. 158, 
160-161 (1900).

To make a just determination of whether to approve the 

withdrawal of a class action plaintiff the court must determine 

what would serve the best interests of the class. To accomplish 

this end the court must first determine whether the proposed with­

drawal is genuinely motivated or is caused by fear, harassment 

and similar circumstances causing a "faint hearted" effect.

Although plaintiffs' educational attainments are not a 

part of this record, it is clear that they were all life long 

residents of rural Lowndes County, and that, therefore, their 

education, if any, was obtained in the Negro public schools of 

Lowndes County, Alabama.

The U.S. Census, of which this Court is asked to take 

judicial notice, makes it abundantly clear that although Negroes 

make up the overwhelming majority of the population, a dispro­

portionately large number of them are poor, illiterate, and

- 4 3 -



powerless. Certainly this is more pronounced in the class repre­

sented by the plaintiffs here before this Court--a class con­

sisting of sharecroppers and tenant farmers whose economic security 

depends on a white man's whim. The plaintiffs who appeared at the 

deposition taking were not educated, economically secure people 

who might have had prior dealings with courts and litigation, and 

who understood the nature and procedure involved in a lawsuit, 

but rather they were, as a class, poor, uneducated, economically 

insecure, and completely without any comprehension of the legal 

procedure they were confronted with. When this background is 

coupled to the fear engendered by the persistent hostility of the 

examination by a battery of white Alabama attorneys representing 

the defendants, the plaintiffs' reluctance to affirm their action 

in engaging counsel for the purpose of this litigation is apparent.

The plaintiffs' fear was compounded by confusion. An 

individual plaintiff was thrown off the land which he had rented 

from an individual defendant. He didn't understand his right, in 

legal terms, to be secure in the possession of the property in the 

face of an eviction based solely on the exercise of his rights 

under the Constitution and laws of the United States. What he 

understood was that he had been in possession for many years, that 

his tenancy was never deemed unsatisfactory, and that as soon as 

he sought to become a registered voter he was evicted. His "com­

plaint" was against his individual landlord. He didn't under­

stand the concepts of "conspiracy" or "joint action. He may have



had perfectly amicable relationships,, at least in the sense that 

this term is used to describe Negro-white relations in the rural 

South, with some of the other defendants. But at the deposition 

taking he was confronted by a battery of accusers. They un­

leashed a barrage of questions dealing with defendants other than 

his landlord. He was asked whether he knew that he had "got all 

of these white people in court. *

*J  For example, Threddie Lee Stewart was evicted from the 
James1 land. But defendants' attorneys asked him: "Did you
know you were filing a suit against Mrs. Beck?" (Stewart deps. 
59). Jack Crawford was evicted from the land of Robert Dick­
son. But defendants' attorneys asked him: "Well, if I tell
you that you are a party plaintiff in the Federal Court in 
Montgomery and Mr. Bob Dickson and Mr. Buster Haigler, Mr. E.L. 
James and Mrs. James, that you have got all of these white 
people in court? Have you ever known that before?" (Crawford 
Dep. 18). Elijah Gordon, Jr., had his cotton allotment taken 
away by Mack Champion. He was asked, about Mrs. Beck: "She
has never molested you or done anything to you?"... "She was 
a nice lady wasn't she?" ... "You didn't know you were suing 
her too, did you?" (Gordon Deps. 25). Muffin Miles was evicted 
from the land of Mrs. Beck. He was asked about the James':
"Did you know you had brought them into Court on this case 
here?" (Miles Deps. 35).

- 4 5 -



Of course, he didn't, at least not under his understanding of 

what it means to "get someone in court". So he became intimi­

dated, he sought to withdraw under the withering fire of questions. 

All he wanted was to be able to get his tiny plot of land back */ 

and now he had incurred the wrath of so’ many important white folks, 

people upon whom he depended for seasonal loans to sustain him 

in his meager existence.

It wasn't only his absolute unfamiliarity with the law, 

other than as an instrument of repression (See Morgan, "Segre­

gated Justice", in Southern Justice, 155., [Friedman ed. 1965]; 

see also, Book Review: Southern Justice, 5^ Calif. L. Rev. 303 

[1966]) and his confusion and fear engendered by the hostile 

courtroom confrontation which caused his reaction at the deposi­

tion taking. Somet-ime’ after the inception of this suit one of 

the defendants and his attorney came to a plaintiff, Elijah 

Gordon, Jr., and took him to Montgomery for the purpose of 

"giving a statement to the United States Commissioner." When 

the U. S. Commissioner refused to participate Mr. Gordon was taken *

* J The deposition of plaintiffs, in spite of their fears and 
confusion, make this fact demonstrably clear. For example, 
plaintiff Grille Coleman, a tenant for 19 years, felt he was 
wronged and wanted the land back (Coleman Deps. 17*33). Plain­
tiff Jack Crawford, a tenant for 47 years, believed he had a 
right in the nature of a life estate in the land (Crawford Deps 
15). Plaintiff Muffin Miles, a tenant for 10 years, wanted 
to stay on the land (Miles Deps. 51) and wanted help In this 
regard (Miles Deps. 54).

- 4 6 -



to the attorney's office and an affidavit taken in utter dis-
* /regard of the Canons of Professional Ethics.

Despite all of this pressure, harassment, intimidation 

and confusion, from the depositions of some of the plaintiffs it 

is evident that they were quite clear about what they were doing.

Finally, whether the Court found that the plaintiffs' 

assumed withdrawal was genuinely motivated or that it was caused 

by fear and intimidation, in any event it would still not effect 

the question of whether the lawyers should be assessed with the 

costs herein. While the question of costs could conceivably be 

in some way related to the original retention of counsel (if, in 

fact, counsel was not retained) it cannot possibly have any 

relationship to an effort by class action plaintiffs to withdraw 

after they had originally authorized the suit to be commenced.

To confuse these two issues resulted in an erroneous decision.

The assumption of the Court below that plaintiffs did 

not authorize this action is simply not in accord with the facts.

"Canon 9. Negotiation with opposite party. A lawyer 
should not in any way communicate upon the subject of 
controversy with a party represented by counsel; much less 
should he undertake to negotiate or compromise the matter 
with him, but should deal only with his counsel." Canons 
of Professional Ethics, American Bar Association, p. 8 (1957 ed.)

- 4 7 -



The factual error may perhaps have been brought about because 

the court acted without notice of its intention, and without 

according a hearing. This will be further discussed below.

B. The Court Below had no Basis in Law 
for Assessing the Cost herein.

The Court below was without power to tax the costs to 

plaintiffs’ attorneys. Costs in the Federal Courts are regulated 

exclusively by statute. Sioux County v. National Surety Company, 

276 U.S. 238, 241 (1928). The importance of this is emphasized 

by the nature of cost— that they "are in derrogation of the .. 

common law and in a sense penal in character." Braun v. Hassen- 

skin Steel Company, (D.S.D., 1959) 23 F.R.D. 163, 16 7.

Likewise, without a statutory basis, there is no 

liability for costs as to persons not directly party to the suit. 

In re Childs Co., (S.D. N.Y., 1943) 52 F. Supp. 89, 91-92. The 

courts have long been loathe to assess costs against attorneys. 

"Judgment for costs does not run against the attorney." United 

States ex rel. Payne v. Ca11, 287 Fed. 520, 521 (5th Cir. 1923). 

This sentiment has maintained because, since it is against the 

policy of the law for an attorney to agree to pay costs, "it 

ought not to be tolerated that he could be forced actually to 

pay them." Id_., at 5 2 1.

Although there is a general equitable power possessed 

by the courts, "allowance of costs has with practical uniformity 

been restricted to those authorized by fee bill, or by some other

- 4 8 -



statutory provision." Gold Dust Corporation v. Hoffenberg, (2d 

Cir., 1937) 87 F . 2d 451, 453. Therefore, the nature of items 

to be taxed as costs, and also the parties against whom costs 

may be assessed are regulated by statute. Since no statutory 

basis for the taxation of costs against the attorneys was arti­

culated by the Court below, we must study the provisions of the 

United States Code to find this taxing power, if any in fact 
exists therefor.

Rule 5-4-(d ) of the Federal Rules of Civil Procedure is
* /the basic costs provision.-7 There is only one code section which 

provides an exception to the normal provision of payment of costs 

by the party not prevailing, Title 28, U.S.C. § 1927, and this 

section provides that the attorney personally satisfy the costs.

However, the case law makes it amply clear that § 1927 

is an exception to the general rule, and to justify its invo­

cation extraordinary circumstances must have taken place. This 

is best illustrated by a study of the cases where the courts 

have sought to hold the attorneys liable for costs under this 

provision of the U. S. Cede .

*/ Rule 54(d), F.R.C.P. "Costs. Except when express provision 
therefor is made either in a statute of the United States or in 
these rules, costs shall be allowed as of course to the pre­
vailing party unless the court otherwise directs ..."

- 49-



Title 28, U.S.C. § 1927 provides:

"Any attorney ... who so multi­
plies the proceedings in any case to 
increase costs unreasonably and 
vexatiously may be required by the 
court to satisfy personally such ex­
cess costs."

A reading of the statute makes clear the type of con­

duct necessary to invoke the special exception to the general 

costs rule, that is, conduct which multiplies the litigation to 

increase the costs "unreasonably" and vexatiously".

In Toledo Metal Wheel Co. v. Foyer Bros. & Co., (6th 

dr., 19 15), 223 F. 350, 358, one of the very few cases where 

the assessment of costs against the attorney was sustained on 

appeal, the attorney had engaged in excessive cross-examination 

and obstruction of the other party during deposition taking 

rendering that proceeding "futile and ineffective". £>n motion 

of the opposing party and after hearing argument the court 

specifically found that this course of conduct was "obnoxious 

to the orderly, reasonable, and proper conduct of an examination", 

increased the costs "unreasonably and vexatiously", and held 

that these excess costs should be borne by the attorney.

In another case which construed § 982 (the precursor 

of § 1927)* Motion Picture Patents Co. v. Steiner, (2d Cir.,

1912) 201 F. 63, where the attorney engaged In an unreasonably 

prolonged examination of witnesses the court held that the 

attorney shall be liable only for that excess amount of costs 

incurred by the wrongful conduct. Therefore, a reading of

-5 0 -



T o l e d o  M eta l  Wheel in  c o n j u n c t i o n  w i th  S t e i n e r  makes i t  p l a i n

that, at least for § 1927 purpose, the court would have to find 

not only that the conduct was unreasonable and vexatious but it 

would then have to make an allocation of costs in this regard.

A more recent case in which this statute was applied 

was that of Bardin v. Mondon, (2d Cir., 19 6 1) 298 P. 2d 235. 

There the attorney refused to proceed with the trial when so 

directed by the court. His argument, that he was not prepared 

for trial, was ridiculous in light of the fact that it was a 

simple negligence action in which he had been engaged as counsel 

for three years. The court below dismissed with prejudice. The 

Court of Appeals remanded with instructions that it be dismissed 

without prejudice on condition that the attorney be personally 

liable for the costs.

There are very few cases in which this rather extra­

ordinary statute (and its predecessor § 982) has been applied. 

The extreme conduct in the cases in which its use was sustained 

makes the reason plain. Even more revealing, however, are the 

cases in which its sanction was not applied.

In Coyne & Delany Co. v. G.W. Onthank Co., (S.D. Iowa, 

1950) 10 F.R.D. 435, defendants moved before trial for an order 

under § 1927 to protect them from having to defend against suits 

for infringement of eight patents involving 55 patent claims.

The court denied the motion and said, at 436:

"Attorneys at law duly admitted 
to practice in this court and in good

- 5 1 -



standing are presumed to be acting 
in good faith and with no intent 
to knowingly and deliberately in­
crease the costs in any litigation 
unless and until the contrary is 
clearly shown."

Weiss v. United States, (2d Cir., 1955 ).> 227 F. 2d 72, 
cert, denied 350 U.S. 936 (1956) is an example of the great 

reluctance on the part of the courts to impose costs of litiga­

tion on attorneys. Counsel had brought suit four times, includ­

ing three prior dismissals on virtually the same theory, to re­

cover benefits under an ' insurance policy which had lapsed for 

nonpayment of premium. Yet the court merely warned counsel that 

only in the event of "further vexatious litigation to reopen this 

hopeless case" would counsel be personally subject to the costs 

thereof under § 1927- Id.. at 73.
When the fact situations of the cases under which the 

extreme sanctions of the attorney having to personally bear the 

costs are laid side by side with the instant fact situation the 

inappropriateness of the action of the Court below is patent.

C . To Assess Costs Against the 
Attorneys Without a Hearing 
and Without Opportunity to 
Clarify the Situation was a 
Violation of Due Process of 
the Law.

As we have pointed out above, costs are 'fcenal in charac­

ter" . Braun v. Hassenskin Steel Co., supra. Certainly to assess 

costs against one who is not a party to the litigation amounts

- 5 2 -



to a fine or penalty. It is clear that the court "possesses no 
inherent power to fine an attorney who has not been held in con­

tempt nor given a hearing." Gamble v. Pope & Talbot, Inc.,(3d 

Cir., 1962) 307 F.2d 729, involved the $100 fine of an attorney 

by the trial court for failure to file a pre-trial memorandum.

The Appellate Court observed that "there is nothing in the 

Federal Rules which authorize sanctions in the form of penalties 

to be imposed upon an attorney in civil litigation" and by a 

footnote pointed out that § 1927 is only applicable when excess 

costs are shown to exist. Id_., at 731. To impose such a penalty 

without the procedural safeguards of a hearing would be violative 

of the Due Process Clause of the Fifth Amendment. Id,, at 731.

A close reading of the § 1927 cases does not reveal 

any raising of the due process issue in an assessment of costs 

without a hearing, save for some very relevant dicta in Toledo 

Meta 1 Wheel Co., supra, at 359, where the court pointedly left 

open the question of whether they would have affirmed the assess­

ment of costs under § 1927 if the appellant-attorney had taken an 

objection to the fact that the "... orders were made in the 

pending suit, instead of an independent summary proceeding, and 

the orders are in character final."
One very obvious reason why the question of a hearing 

has not previously been raised is that, in effect, the issue was 

probably argued and plaintiff afforded opportunity to present 

his position during the litigation out of which the § 1927 award 

arose. Certainly the trial court judge who assessed the costs

- 5 3 -



in  T o le d o  M etal

Wheel Co., supra, there was a motion by opposing counsel which 

was argued before the court who made a specific finding that the 

deposition taking was "unreasonable and vexatious" and assessed 

these specific excess costs against the attorney.

Here, however, this was not the case. There was never

a motion to tax costs against the attorneys. The Court below

made the decision to assess costs against the attorneys not on the

basis of live testimony or transactions taking place in its

presence, and in situations in which the attorneys would have an

opportunity to explain their action, be put on notice as to what

the Court interpreted their course of conduct to be, or be able

to argue their position, but solely from the steril pages of

depositions. To compound matters, when the attorneys sought to

clear up the entire issue of retention of counsel, a matter which

would have obviated any question about assessment of costs, the
* /

Court below refused to hear the matter, deeming it "trivia". 

Therefore, on this crucial issue of assessment of costs against 

the attorneys, a questionable and rarely invoked sanction, there 

was absolutely no opportunity to be heard. Neither was there an

had th e  p o i n t  a t  i s s u e  b e f o r e  him. F o r  exam ple ,

*J  It should be pointed out that this "trivia" has resulted 
not in a de minimis penalty, but rather in a burden imposed on 
counsel in the sum of some One Thousand Five Hundred For.ty ^nd 
80/100 Dollars -($1540.80).

- 5 4 -



opportunity to be beard, clearly implicit in § 1927., as to the 

apportionment of costs question, or a finding as to the "unreason­

ableness and vexatiousness" of the conduct, nor was there any 

opportunity to be heard in the more general sense. The question 

was not before the Court below on motion of opposing attorney 

where argument would necessarily be heard. It did not develop 

out of the course of litigation before the Court below where the 

intention of the Court would have been announced and it would 

have been open to a showing in this regard. Rather, the attorneys 

first learned of it by reading the opinion of the Court below —  

and the Court below formed its opinion by reading the depositions. 

The only opportunity to present the true factual situation was 

foreclosed by that Court. To allow costs to be assessed against 

the attorneys on the basis of these facts would be a gross repudi­

ation of the due process clause. At issue here is not even the 

question of whether this assessment is "penal in character", "a 

fine or penalty", or "simply an exercise in disciplinary authority1 

At issue is the question of whether a court can effect this sanc­

tion, no matter how it is characterized, without notice and an 

opportunity to be heard.
The imperativeness of a hearing in a situation such as 

that at hand was eloquently enunciated by the Gamble court where 

it said, at 733:
"The effort to concentrate all that 

frightening power in the bench is too 
dangerous a potential to let slip by

5 5 -



clothed In such disarming language 
as 'simply ... an exercise in dis­
ciplinary authority, with no neces­
sary criminal connotation'. All 
that 'exercise1 happens to be is the 
first giant step in stripping a 
lawyer of his independence and leav­
ing him, his client and the latter's 
cause of action to the ukase of the 
court."

D. The Assessment of Cost Against 
the Attorneys was' Contrary to~~ 
the First and Sixth Amendments 
to the Constitution of the 
United States.

As we have pointed out above, assessment of costs 

against attorneys is a severe and rarely used sanction on the part 

of the court. This great reluctance to penalize attorneys in this 

way is quite understandable because of the effect it has not only 

on counsel, "stripping a lawyer of his independence", but also 

on "his clients and the latter's cause of action". Gamble v.

Pope & Talbot, supra, at 733.

Courts have always zealously guarded the right of a 

litigant to have his day in court, adequately represented, as this 

right is in the vanguard as a preservator of our democratic 

society. "The courts traditionally have been reluctant to penalize 

a suitor for resorting to legal process." This is so because 

the paramount principle is free access to the courts. (Costs - 

Taxability of Attorneys Fees as Deterent to Harassment by Actions 

Unfounded in Law or Fact, 50 Illinois Bar J. 800 [1962]).

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In an opinion disallowing certain costs incurred in 

litigation and announcing that costs should be given careful 

scrutiny the Supreme Court stated: "Any other practice would

be too great a move in the direction of some other systems of 

jurisprudence that are willing, if not indeed anxious, to allow 

costs so high as to discourage litigants from suing, no matter 

how meritorious they believe in good faith the claim to be."

Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964).

Everyone, irrespective of race or financial status, has 

a right to litigate a meritorious claim. But the opportunity to 

exercise that right is another matter when the party seeking 

legal redress is Negro and indigent. As this Court has already 

taken judicial notice of the relutance of southern white attorneys 

to raise certain defenses in criminal trials of Negroes, U.S. ex 

rel. Goldsby v. Harpole, (5th Cir., 1959) 263 F.2d 71, 82, cert. 

denied 372 U.S. 915 (1963); U.S. ex rel. Seals v. Wiman, (5th 

Cir., 1962) 304 F .2d 53, 68, it follows that the same factors 

which produce this failure of representation, that is, "loss of 

practice and social ostracism" (Goldsby, at 82) would also work 

to keep a Negro plaintiff seeking redress against powerful white 

members of the community from being represented. Therefore, 

representation in these cases falls to that miniscule number of 

counsel, both local Negro attorneys and also attorneys from the 

North who are willing to represent the indigents in these situa­

tions without cost.

r .

- 5 7 -



f

As we pointed out by way of an affidavit which is a 

part of this record (R. 376) the attorneys against whom costs 

were taxed were all volunteer lawyers who offered their services 

in this litigation without fee. This Court knows of the signi­

ficant contributions in the development of civil rights law 

made by out of state volunteer lawyers. The assessment of costs 

can only have the effect of discouraging their participation in 
this field.

The white South has made many attempts taking varied 

forms to keep this class of plaintiffs unrepresented, but the 

courts have continually rectified the situation. In NAACP v. 

Button, 371 U.S. 415 (1 9 6 3) the Supreme Court reversed a state 

court decision proscribing activities of an association which 

provided voluntary legal assistance in civil rights matters.

The Court pointed out that "Lawsuits attacking racial discrimi­

nation ... are neither very profitable nor very popular. They 

are not an object of general competition among Virginia lawyers. 

The problem is one of an apparent dearth of lawyers who are 

willing to undertake such litigation." at 443. In Lefton v. 

Hattiesburg, (5th Cir., 1964) 333 F.2d 280, this Court pointed 

out that local court rules "may not be allowed to operate in 

such a way as to abridge the right of any class of litigants to 

use the federal courts ..." at 285. Cf. Holt v. Virginia. 381 

U.S. 131 (1965); In re Jess Brown (5th Cir., 1965) 346 F.2d 903.

Finally, it must be pointed out that in these cir­

cumstances the imposition of costs on attorneys would have the

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same practical effect as the varied attempts to deprive plain­

tiffs of representation mentioned above. "No proof is needed 

that imposition of such onerous burdens on ... [plaintiffs1] 

lawyers would put serious obstacles in the way of ... [plaintiffs] 

obtaining the kind of legal representation ..." required by law. 

Adkins v. DuPont Co.. 335 U.S. 331, 342 (1948).

Counsel would be unduly burdened by the threat of 

financial ruin and would balk at representing aggrieved petitioners 

in civil right litigation. Aggrieved citizens would effectively 

be denied the right to counsel contravening the Sixth Amendment 

to the United States Constitution. Counsel, even where employed, 

could not render vigorous and effective assistance. Lawyers 

would not "be able to make honest good-faith efforts to present 

their clients' cases." In re McConnell, 370 U.S. 230, 236 (1962). 

The reality of a "vigorous independent bar" would be reduced to 

a sterile abstraction functionally.

CONCLUSION

The judgment of the Court below should be reversed.

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R e s p e c t f u l l y  s u b m i t t e d ,

Vernon Z. Crawford 
57S Davis Avenue 
Mobile, Alabama

Morton Stavis 
744 Broad Street 
Newark, New Jersey 07102

William Kunstler 
Arthur Kinoy 
511 Fifth Avenue 
New York, New York 10017

Benjamin E. Smith 
305 Baronne Street 
New Orleans, Louisiana

COUNSEL:

Morton Stavis 
Dennis J. Roberts

B y : __________ _ _ _
MORTON STAVIS

ATTORNEYS FOR PLAINTIFFS-APPELLANTS



r

CERTIFICATE OF SERVICE

This is to certify that I have this day mailed by 

United States Mail, postage prepaid, a copy of the foregoing 

brief to Hinson & Hamilton, 26 South Perry Street, Montgomery, 

Alabama, attorneys of record for the Appellees, Mack Champion 

and Buster Haigler; John Kohn, Bell Building, Montgomery, 

Alabama, and R.L. Ingalls, Hill Building, Montgomery, Alabama, 

attorneys of record for the Appellee, Robert Dickson, Jr.;

J. E. Wilkinson, Jr., Peoples Bank & Trust Company Building, 

Selma, Alabama, attorney of record for the Appellee, Fred 

Holladay; Martin, Balch, Bingham, Hawthorne & Williams,

1009 First National Bank Building, Montgomery, Alabama, 

attorneys of record for the Appellees, Todd Meadows and E. W. 

Meadows; Godbold, Hobbs & Copeland, 444 South Perry, Montgomery 

Alabama, attorneys of record for Appellees E. L. James and 

Mary James; Rushton, Stakely & Johnson, 1201 Bell Building, 

Montgomery, Alabama, and Reeves & Stewart, Selma National Bank 

Building, Selma, Alabama, attorneys of record for Appellee,

Bess Gardiner Beck; and to Allan Meadows, 304 Cahaba Road, 

Selma, Alabama, Appellee, in the above matter; and also on 

Hon. John Doar, Assistant U. S. Attorney General, Department 

of Justice, Washington, D. C.; and Hon. Ben Hardeman, U. S. 

District Attorney, Post Office Building, Montgomery, Alabama, 

this 31 day of March, 1 9 6 7.

4

MORTON "STA VIS"