Walker v. City of Birmingham Objections to Motion for Leave to File Brief Amicus Curiae

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM , 1966.

No. 249.

WYATT T E E  WALKER, MARTIN LUTHER KING, JR ., RALPH ABERNATHY, 
A. D. KING, J. W. HAYES, T. L . FISHER, F. L  SHUTTLESWORTH 

and J. T. PORTER,
Petitioners,

us.
CITY OF BIRMINGHAM,

a Municipal Corporation of the State of Alabama, 
Respondent

OBJECTIONS TO MOTION FOR LEAVE TO 
FILE AMICUS CURIAE BRIEF.

J. M. BRECKENRIDGE,
EARL McBEE,

600 City Hall,
Birmingham, Alabama, 

Attorneys for Respondent.

St . L ouis La w  P rinting Co., Inc., 411-15 N. Eighth St., 63101. CEntral 1-4477.



AUTHORITIES CITED.

Pages
Cases.

Alabama Cartage Co. v. International Brotherhood of 
Teamsters, Chauffeurs, Warehousemen, etc. (1948),
250 Ala. 372, 34 So. 2d 576 .........................................  6

Alabama State Federation of Labor v. McAdory 
(1944), 246 Ala. 14, 18 So. 2d 8 1 0 .............................. 6

Hardie-Tynes Mfg. Co. v. Cruse (1914), 189 Ala. 66,
66 So. 657, 666 .................................................................  5

Hotel and Restaurant Employees v. Greenwood (1947),
249 Ala. 265, 30 So. 2d 696, cert. den. 322 U. S. 847,
68 S. Ct. 349 .....................................................................  6

Howat v. Kansas, 258 U. S. 181 ................................. 4,5,7

In Re Green, 369 U. S. 689 .......................................  4

Shiland et al. v. Retail Clerks, Local 1657 (1953), 259
Ala. 277, 66 So. 2d 146 .............................................  6

Staub v. Boxley, 355 U. S. 313 .....................................  4
Sutter v. Amalgamated Assn, of Street, Railway and 

Motor Coach Employees of America (Local 1127 of 
Shreveport, Louisiana) et al. (1949), 252 Ala. 463,
41 So. 2d 190 .................................................................  6

United States v. United Mine Workers, 330 U. S. 258.. 4

Statutes.

Acts of Alabama, 1943, page 252 .................................. 5
City of Birmingham Ordinance 63-17, Section 7 . . . .  6
Code of Alabama, 1940, Title 26, Sections 376 et seq... 5



IN TH E

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM , 1966.

No. 249.

WYATT T E E  WALKER, MARTIN LUTHER KING, JR ., RALPH ABERNATHY, 
A. D. KING, J. W. HAYES, T. L . FISHER, F. L  SHUTTLESWORTH 

and J. T. PORTER,
Petitioners,

vs.
CITY OF BIRMINGHAM,

a Municipal Corporation of the State of Alabama, 
Respondent.

OBJECTIONS TO MOTION FOR LEAVE TO 
FILE AMICUS CURIAE BRIEF.

Respondent, City of Birmingham, declined to consent to 
the filing of brief amicus curiae on behalf of the American 
Federation of Labor and Congress of Industrial Organi­
zations (AFL-CIO). We respectfully object to and oppose 
the motion for leave to file such brief.

We cannot fully develop our reasons for objecting to 
such motion within the limits of brevity required by Su­
preme Court Rule 42, which provides that when a motion 
to file brief amicus curiae is made “ a party served with 
such motion may seasonably file an objection concisely 
stating the reasons for withholding consent” . We under­



stand this to mean that only a very skeletonized presen­
tation is permissible.

Briefly stated, these reasons include: (I) The delay to 
this point in the proceeding in seeking to file a brief 
amicus curiae should bar its filing; (II) The opinion and 
decision of this Honorable Court is based upon thorough 
consideration and careful determination of fundamental 
issues concerning respect for our courts and for law and 
order, not in a factual situation related to a labor contro­
versy, but one involving the right of a municipality to 
protect its citizens in the use of its streets and sidewalks 
and from mob violence, but was rendered with an aware­
ness of the cases involving organized labor, many of which 
were cited and discussed by the parties in lengthy briefs 
and argument and some by the Court in its opinion; and, 
lastly, (III) It poses no serious threat to the legal and 
constitutional rights of the organized labor movement, or 
any other group, either minority or majority.

I .

Respondent has declined consent to the filing of the 
amicus curiae brief at this stage of the case, coming after 
most thorough briefing* 1 and lengthy oral argument of the

1 Briefs filed with this Court and referred to in the letter of 
respondent declining to consent include:

1. Petitioners’ Brief and Petition for W rit of Certiorari to 
the Supreme Court of Alabama, containing 45 pages and 
an Appendix of 35 additional pages.

2. Respondent’s Brief in Opposition to Petition for W rit of 
Certiorari, containing 37 pages.

3. Brief for the Petitioners on the Merits, containing 81 
pages, with a short Appendix of three additional pages.

4. Memorandum Brief for the United States as Amicus 
Curiae filed by the Solicitor-General, containing 25 pages.

5. Brief of Respondent in reply to the Petitioners’ Brief and 
the Brief of the Solicitor-General, containing 74 pages, 
and an Appendix of eleven additional pages.

6. Petitioners’ Reply Brief, containing four pages.
7. Respondent’s Supplemental Brief, containing five pages.

____2 _____



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issues involved and careful determination of them by this 
Honorable Court. Movant admits they have never before 
attempted to file an amicus curiae brief at such a late 
stage of the case. While we find nothing in the Supreme 
Court Rules either allowing or disallowing such a belated 
motion, the intent of Rule 58, imposing severe restrictions 
upon the right of a prevailing party to file a brief on 
application for rehearing, would logically justify a re­
fusal to consider the motion of a stranger to the case to 
file a brief after the rendition of the Court’s decision. We 
urge this be done.

II.

Movant admits the briefs by petitioners and by the 
Solicitor-General for the United States admirably cover 
the issues of freedom of speech and freedom of assembly. 
These issues are factually related to the denunciation by 
petitioners of courts in the South in general, and in par­
ticular their open defiance of the injunction by deliber­
ately violating it without making any effort whatever to 
dissolve or modify it. Such issues are also related to the 
right of a municipality to protect petitioners and its citi­
zens from the consequences of lawless commandeering of 
its streets and sidewalks in a situation involving an un­
ruly, violent mob.

Underlying these important issues is the fundamental 
question of whether any group, minority or majority, is 
entitled to determine for itself what laws and court decrees 
it will choose to obey or what laws and court decrees 
it will flout and violate. An affirmative answer to this 
question may be considered by some as giving open 
encouragement to those who would riot, pillage, burn 
and murder. Or else it may well be like a seed that may 
be nurtured by one with malice in his heart, or even pos­
sibly by one who is well-meaning but misguided to grow



—  4 —

into such incidents as those experienced within the past 
year or two by Los Angeles, Chicago, Cleveland, New York 
and other cities, and more recently by Newark, New 
Jersey and surrounding cities.

These were the vitally important issues briefed by the 
parties to the case. These were the issues determined by 
the Court in its opinion and decision, which we earnestly 
urge is eminently correct.

The major premise upon which the request for consent 
and the motion for leave to file is based is the unfounded 
inference that this Honorable Court was unaware of or 
failed to consider in its opinion the labor movement and 
the cases and statutes spelling out its legitimate consti­
tutional and statutory rights, and the incorrect notion that 
in so doing this Honorable Court fashioned an opinion 
that may be the vehicle through which the right of labor 
to organize may be destroyed and the destruction of its 
other constitutional and statutory rights may be facili­
tated.

As we shall later comment on in more detail, the Court’s 
opinion is largely rested upon Howat v. Kansas, 258 U. S. 
181, a labor injunction case. Other labor injunction cases 
cited by it include In Re Green, 369 U. S. 689, and United 
States v. United Mine Workers, 330 U. S. 258. A  score 
or more labor cases are cited in one or more of the various 
briefs of the parties filed before decision, including the 
three last above mentioned and Staub v. Boxley, 355 U. S. 
313. Reference to the table of cases shows that three of 
the four are cited by Movant.

III.

We do not find in such opinion and decision any threat, 
direct or indirect, to the legitimate interests of organ­



5

ized labor. Certainly, the right to organize and to law­
fully strike and peacefully picket for legal causes are 
rights of organized labor that are no longer open to ques­
tion. The decisions of this Honorable Court and the 
courts of the several states, including the State of Ala­
bama, to say nothing of numerous federal and state 
statutes, within the last fifty years have firmly developed 
and established these rights.

It is interesting to note that the doctrine of Howat v. 
Kansas, 258 U. S. 181, a case involving a labor contro­
versy, relied upon by the respondent herein and which 
is followed by this Honorable Court in its opinion, was 
decided some fifty years ago. It did not spell the doom 
of organized labor, then in its infancy, as a factor in the 
economic life of this country. To the contrary, it has 
grown in size and strength and power to the point that 
only recently Congress has been called upon by the Presi­
dent to enact emergency legislation to protect our country 
in its military and other vital interests from the frighten­
ing consequences of a nation-wide tieup of our trans­
portation system.

Required brevity will not permit development of the 
point made in III. However, we do ask indulgence to be 
permitted to comment very briefly at least on some of the 
relevant Alabama cases typical of those throughout the 
Nation showing the development of legal concepts up­
holding the right of labor to organize, to strike, and to 
peacefully picket. In Hardie-Tynes Mfg. Co. v. Cruse 
(1914), 189 Ala. 66, 66 So. 657, 666, the Alabama Supreme 
Court recognized the constitutional rights of labor to 
organize and to strike, but denied them the right even 
peacefully to picket. These rights received legislative 
sanction in 1943 when the Bradford Act was enacted. 
Acts of Alabama, 1943, page 252; Code of Alabama of 
1940, Title 26, Sections 376 et seq. Its constitutionality



was sustained in Alabama State Federation of Labor v. 
McAdory (1944), 246 Ala. 14, 18 So. 2d 810.

In Hotel and Restaurant Employees v. Greenwood
(1947), 249 Ala. 265, 30 So. 2d 696, cert den. 322 U. S. 
847, 68 S. Ct. 349, the right of employees to organize and 
to strike and peacefully picket to obtain a closed shop 
contract with the employer was recognized. A  later case, 
Alabama Cartage Co. v. International Brotherhood of 
Teamsters, Chauffeurs, Warehousemen, etc. (1948), 250 
Ala. 372, 34 So. 2d 576, differs in that the latter case in­
volved a “ wild-cat”  or unlawful strike in violation of 
the contract between the Union and the employer.

Two additional Alabama cases are worthy of mention 
because they upheld the right to engage in peaceful pick­
eting upon the public sidewalks of the City of Birming­
ham.2 Sutter v. Amalgamated Assn, of Street, Railway 
and Motor Coach Employees of America (Local 1127 of 
Shreveport, Louisiana) et al. (1949), 252 Ala. 463, 41 So. 
2d 190, dealt with a situation where a bus terminal was 
picketed incident to a labor dispute between the Union 
employees and Southern Bus Lines, Inc. for a period of 
some two years. The other case is Shiland et al. v. Retail 
Clerks, Local 1657 (1953), 259 Ala. 277, 66 So. 2d 146.

In the latter case, false allegations in the verified bill 
of complaint procured the issuance of an injunction by a

2 Over a period of many years the City of Birmingham has 
observed a policy of non-interference with peaceful picketing 
in labor disputes. Since 1963 it has by ordinance recognized 
the right to use public sidewalks to engage in demonstrating 
or picketing, when properly conducted, for any lawful purpose. 
In 1963 the City Commission was succeeded by the Mayor-Coun­
cil form of government. Within a few weeks after it took office, 
the City Council adopted Ordinance 63-17, which in Section 7 
thereof provides: “Those who participate in any demonstra­
tion on any sidewalk shall be spaced a distance of not less than 
ten feet apart; and not more than six persons shall demon­
strate at any one time before the same place of business or 
public facility.”

—  6 —



—  7 —

member of the Supreme Court of Alabama on March 23rd, 
and on May 1st thereafter the Circuit Judge dissolved the 
injunction. The Alabama Supreme Court affirmed on ap­
peal.3

IV.

In conclusion, we respectfully submit that neither con­
stitutional nor statutory rights of labor organizations, nor 
the many decisions delineating them, were overlooked by 
this Honorable Court in arriving at its decision in this 
case. It is unrealistic to criticize this gravely important 
and sound decision because of an imagined threat to the 
legitimate rights of organized labor. Past experience 
shows the groundless nature of such criticism. Moreover, 
the opinion is carefully constructed to uphold the dignity 
of our courts and respect for honestly rendered injunction 
decrees and to engender respect for law and order, recog­
nizing the legitimate interest of state and local govern­
ments in regulating the use of their streets and public 
places in the preservation of law and order for the pro­
tection of petitioners as well as the general public. At 
the same time, state and local officers are clearly put on 
notice that this Honorable Court will not tolerate a con­
tempt conviction “ (w)here the injunction was transpar­
ently invalid or had only a frivolous pretense to validity.”  
Nor will it apply the rule of Howat v. Kansas if, before 
disobeying the injunction, it is properly challenged in the 
state courts and in the process the challengers are “ (m)et 
with delay or frustration of their constitutional claims.”  
This safeguard stands as a bulwark to protect not only 
the constitutional rights of organized labor but any other 
group, minority or majority.

3 One of the writers of this objection was of counsel repre­
senting the respective Union in each of the four last above 
cited eases and our comments, because of his familiarity with 
them, extend slightly beyond what is shown in the printed 
opinions cited.



We respectfully request this Honorable Court to deny 
the motion for leave to file amicus curiae brief.

Respectfully submitted,

—  8 —

J. M. BRECKENRIDGE,

EARL McBEE,
Attorneys for Respondent.