Maddox v. Willis, Jr. Motion to Dismiss or Affirm

    N o. 308

Jn the Jsttjremo Cfouri of (ht grated States
October T erm, 1965

L ester 0 . Maddox, appellant

v.
George F. W illis, Jr., et al., appellees 

and
Nicholas deB. K atzenbach, A ttorney General,

INTERVENOR-APPELLEE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE NORTHERN DISTRICT OF GEORGIA

MOTION TO DISMISS OR AFFIRM

R A L P H  S. S P R IT Z E R ,
Acting Solicitor General,

JO H N  D O A R ,
Assistant Attorney General, 

H A R O L D  H . G R E E N E ,
S T E P H E N  E. E IL P E R IN ,

Attorneys,
Department of Justice, 

Washington, D.C., 20530.



Jit to  Supreme flfonrt of to  Mrattil j&iates
October T erm, 1965

No. 308
L ester G. M addox, appellant

v.
George F. W illis, J r ., et al., appellees 

and
Nicholas deB. K atzenbach, A ttorney General, 

intervenor-appellee

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE NORTHERN DISTRICT OF GEORGIA

MOTION TO DISMISS OR AFFIRM

Pursuant to Rule 16, paragraphs 1(a) and 1(c) of 
the Rules of this Court, Nicholas deB. Katzenbach, as 
intervenor-appellee, moves that the appeal be dis­
missed, or, alternatively, that the judgment of the 
district court be affirmed.

QUESTIONS P R E SE N T E D

1. Whether a direct appeal to the Supreme Court 
lies from an order of a single judge holding appellant 
in contempt of an order of a three-judge district 
court convened pursuant to Section 206(b) of the 
Civil Rights Act of 1964.

2. Whether Title II  of the Civil Rights Act of 1964 
is unconstitutional.

7 8 2 - 9 5 9 — 6 5 -
( 1 )



2

S T A T E M E N T

This is a direct appeal taken from a final judg­
ment entered by a single judge of the United States 
District Court for the Northern District of Georgia, 
holding appellant in civil contempt of the permanent 
injunction issued by a three-judge court on September 
4, 1964. The appeal arises out of the Pickriek Res­
taurant litigation.1

On July 9, 1964, appellees George Willis, Jr., 
Woodrow T. Lewis, and Albert L. Dunn, filed a com­
plaint in the Northern District of Georgia under Sec­
tion 204 of the Civil Rights Act of 1964 seeking relief 
against appellant Lester G. Maddox for refusing them 
service because of their race in violation of Section 
203 of the Act. The Attorney General was granted 
leave to intervene and filed a complaint seeking a pre­
liminary and permanent injunction restraining appel­
lants from continuing to violate the Act.

Pursuant to the request of the Attorney General, a 
three-judge court was convened. See Sections 206(a) 
and (b) of the Civil Rights Act of 1964, 78 Stat. 245, 
42 U.S.C. 2000a-5. On July 22, 1964, the three-judge 
court upheld the constitutionality of Title I I  of the 
Civil Rights Act of 1964, as applied to the establish­
ment in question. A preliminary inj unction was issued 
restraining the Pickriek Restaurant and Lester Mad­
dox from :

(a) Refusing to admit Negroes to the prem­
ises of the Pickriek Restaurant upon the same

1 The name of the restaurant was subsequently changed to the 
“Lester Maddox Cafeteria.”



basis and under the same conditions that non- 
Negro members of the general public, are ad­
mitted to the restaurant;

(b) Failing or refusing to sell food or meals 
and to provide service to Negro patrons upon 
the same basis and in the same manner that 
food, meals and services are made available to 
patrons o f other races;

(c) Otherwise failing or refusing to make 
any of the goods, services, facilities, privileges, 
advantages or accommodations of the Piekrick 
Restaurant available to Negroes upon the same 
basis and under the same conditions that they 
are available to other races.

The court stayed the injunction until August 11, 1964, 
to allow appellants time to note an appeal and to seek 
a stay. Appeal was noted July 28, 1964, but has not 
been prosecuted. This Court denied a Stay on August 
10,1964.

Shortly thereafter, appellees and the Attorney 
General filed motions to show cause why Lester Mad­
dox and the Piekrick Restaurant should not be ad­
judged in civil contempt for violating the order of 
July 22, 1964. On August 25, 1964, Judges Bell, Mor­
gan and Hooper finding “ [n]o statutory basis * * * 
for the convening of a three-judge court to hear civil 
contempt proceedings ancillary to suits prosecuted 
under the Civil Rights Act of 1964” ordered “ all fur­
ther proceedings as they relate to the civil contempt 
proceedings to be heard by the district court in due 
and normal course in its ordinary jurisdiction,” and 
dissolved, for that purpose, the three-judge court 
which had been convened August 13,1964.



4

On September 4, 1964, the three-judge court2 ap­
pointed to hear the main action granted a permanent 
injunction restraining Lester Maddox and the Pick- 
rick Restaurant in terms identical to those of the tem­
porary injunction. The hearing of the civil contempt 
proceeding was continued pending this Court’s deci­
sion in Atlanta Motel v. United States, 379 U.S. 241, 
and Katzenback v. McClung, 379 U.S. 294. In the 
interim, appellee and the Attorney General filed 
amended motions to show cause why appellant should 
not be held in civil contempt of the permanent injunc­
tion. After a three-day hearing, on February 5, 1965, 
Judge Hooper entered an order holding Lester Mad­
dox and the Pickriek Restaurant in civil contempt of 
the permanent injunction of September 4, 1964.

The contempt order provides that if appellant 
refuses service to Negroes on the grounds of race or 
color, he shall pay a fine of $200.00 for each day that 
the restaurant or cafeteria has been open for business 
from the date of the contempt order to the date of the 
refusal, and that all fines so imposed shall be cumu­
lated for the purpose of payment and collection. 
Provision is made for filing a statement of compliance 
which tolls the cumulative aspect of the order. Pro­
vision is also made for appellant to apply for an order 
declaring him to be purged of civil contempt.

A R G U M E N T

1. Appellant argues that jurisdiction is conferred 
upon this Court by Section 206 (b) of the Civil Rights

2 The permanent injunction was enacted by a quorum of the 
court; Judge Tuttle was absent from the circuit.



5

Act of 1964, which authorizes a direct appeal to this 
Court from the final judgment, of a three-judge court 
convened pursuant to Section 206(b).3

The short answer to appellant’s contention is that 
the three-judge court which heard the main case was 
dissolved, insofar as the contempt proceeding is .eon-, 
cerned, by the court’s order of August 25, 1964, and 
the contempt proceeding was ordered “ to be heard by 
the district court in due and normal course in its ordi­
nary jurisdiction.”  This order was unquestionably 
correct. It is settled that an enforcement proceed­
ing ancillary to a three-judge court order does not 
require a three-judge court. Pendergast v. United, 
States, 314 U.S. 574; Davis v. County School Bd., 142 
F. Supp. 616 (E.D. Va.). Since the adjudication 
holding appellant in civil contempt of the injunction 
of September 4, 1964, was not an order of a three- 
judge court, Section 206(b) is inapplicable.4

2. In any event, in Katsenbach v. McClung, 379 
U.S. 294, the .constitutionality of Sections 201(a),

3 Appellant also cites NA AGP  v. Alabama, 357 U.S. 449, and 
Gibson v. Florida Legislative Investigation Committee, 372 
U.S. 539, as supporting this Court’s appellate jurisdiction. 
Those cases, however, were reviewed by writ of certiorari to 
the highest courts o f the respective States.

4 Even if it were appellant’s contention that the district court 
erred in hearing the civil contempt proceeding without the 
assistance of two other judges, that contention is one which 
should be directed to the court o f appeals and not to this 
Court. Idlexoild Bon Voyage Liquor Gory. v. Epstein, 370 
U.S. 713; Case v. Bowles, 327 U.S. 927, affirming 149 F. 2d 777 
(C.A. 9 ); General Electric Go. v. Callahan, 294 F. 2d 60 (C.A. 
5), petition for certiorari dismissed, 369 U.S. 832; Penagari- 
cano v. Allen Gorp.. 267 F. 2d 550 (C.A. 1).



6

(b) (2) and (e) (2) of Title I I  was upheld as applied 
to a restaurant with annual local purchases of ap­
proximately $150,000. Even assuming that appellant 
could raise the question of constitutionality as a 
defense in the contempt proceedings although time for 
appeal from the three-judge court order had run, 
clearly, the applicability of Title I I  to appellant’s res­
taurant, with annual purchases of food exceeding 
$250,000, raises no substantial constitutional question.

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that the judgment of the District Court for the 
Northern District of Georgia be affirmed, or the 
appeal dismissed.

R alph S. Spritzer,
Acting Solicitor General.

J ohn D oar,
Assistant Attorney General.
H arold H. Greene,
Stephen F. E ilperin,

Attorneys.
A ugust 1965.

V .S . GOVERNMENT PRINTING OFFICE! 1965