Ray v. City of Prichard, Alabama Petition for Writ of Certiorari

    I n  the

(tort nf %  Inttrin States
Ocxobee Term, 1969 

No..................

A. R obert R a,y ,

-V.-
Petitioner,

City op Prichard, Alabama.

PETITION FOR W RIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

F rankie F ields 
V ernon Z. Crawpord 

1407 Davis Avenue 
Mobile, Alabama 36603

Jack Greenberg 
James M. Nabrit, III  
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner



I N D E X

PAGE

Opinions Below ..................................................................  1

Jurisdiction ...........................................    1

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

Constitutional and Statutory Provisions Involved..... . 2

Statement of the C ase........................-...............................  11

R easons fob Granting the W r it :

I. Certiorari Should Be Granted to Review and 
Reverse Petitioner’s Conviction for Parading 
Without a Permit as Repugnant to the First 
and Fourteenth Amendments............................. 20

II. Petitioner’s Procedural Default Is Too Insub­
stantial to Preclude This Court’s Review of 
His Important Federal Claims ................   25

Conclusion ..........................................................................  27

A ppendix I :

Opinion of the Court of Appeals of Alabama .......  la

Judgment of the Court of Appeals of Alabama.....  3a

Order of the Supreme Court of Alabama Denying 
Certiorari .......................................... -......................  4a

A ppendix II :

Certified Copy of Letter of June 7, 1968 From 
the Mayor and City Council of Prichard to the 
Mobile County Civil Rights Movement .............  5a



11

Table of Cases

PAGE

Busey v. District of Columbia, 138 F. 2d 592 (D. C.
Cir. 1943) ........................... ...............................................  24

Cox v. New Hampshire, 312 II. S. 569 (1941) ...........20, 24

Freedman v. Maryland, 380 II. S. 51 (1965) ...................  24

Hague v. C. I. 0., 307 IT. S. 496 (1939) ...........................  20
Henry v. Mississippi, 379 U. S. 443 (1965) ...................  25

Lovell v. Griffin, 303 U. S. 444 (1938) ............................. 20

Mnrdock v. Pennsylvania, 319 H. S. 125 (1943) ...........  24

NAACP v. Alabama, 377 H. S. 288 (1964) ...................  26

Parks v. City of Montgomery, 38 Ala. App. 681, 92 So.
2d 683 (1957) ....................................................................  26

Parrot v. Tallahassee, 381 U. S. 129 (1965) ...............  26
Ponlos v. New Hampshire, 345 U. S. 395 (1943) ...........  21

Shnttlesworth v. City of Birmingham, 394 U. S. 147
(1969) ............   2,20,21,22

Stanb v. Baxley, 355 H. S. 313 (1958) ........................... 26

Teitel Film Corp. v. Cusack, 390 H. S. 139 (1968) .......  24
Tinker v. Des Moines Independent Community School 

District, 393 H. S. 503 (1969) ....................................... 22

Wright v. Georgia, 373 U. S. 284 (1963) ....................... 26

York v. City of Danville, 207 Va. 665, 152 S. E. 2d 259 
(1967) ................................................................................  24

Statutes Involved

28 H. S. C. §1257(3) ............................................................  2
Code of Ala., Tit. 15, §389 ................................................  26
City of Prichard, Alabama, Ordinance No. 1135 ...-passim



In the

l y u j m w  GJmtrt ni United States
October Term, 1969 

No..................

A. R obert R ay,

— v . —

Petitioner,

City of P richard, A labama.

PETITION FOR W RIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

Petitioner A. Robert Ray prays that a writ of certiorari 
issue to review the judgment of the Court of Appeals of 
Alabama in the above entitled case.

Opinions Below

The opinion of the Court of Appeals of Alabama, First 
Division, is reported at 222 So. 2d 345, and the opinion and 
judgment of that court are set forth in Appendix I, pp. la- 
3a, infra. The order of the Supreme Court of Alabama 
denying certiorari is reported at 222 So. 2d 346, and is set 
forth in Appendix I, p. 4a, infra.

Jurisdiction

The judgment of the Court of Appeals of Alabama, First 
Division, was entered March 4, 1969 (R. 147). Petitioner’s 
timely petition for rehearing was denied April 1, 1969 (R. 
153). Petitioner’s timely petition for writ of certiorari was



2

filed in the Supreme Court of Alabama on April 14, 1969 
(E. 154), and denied May 8, 1969 (E. 158).

Jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1257(3), petitioner having asserted below and 
asserting here deprivation of rights, privileges and immu­
nities secured by the Constitution of the United States.

Questions Presented

1. Is petitioner’s conviction for parading without a per­
mit unconstitutional under this Court’s decisions in Shuttles- 
worth v. City of Birmingham, 394 U. S. 147 (1969), and 
cases cited?

2. The Court of Appeals of Alabama dismissed peti­
tioner’s appeal because petitioner’s counsel had set forth 
petitioner’s assignments of error in her brief rather than 
on the page reserved for that purpose in the record. Is 
this a procedural default sufficient to bar review by this 
Court of petitioner’s substantial federal claims?

Constitutional and Statutory Provisions Involved

This case involves the First Amendment and Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.

This case also involves the following ordinance of the 
City of Prichard, a municipal corporation of the State of 
Alabama:



3

ORDINANCE NO. 1135

Aw Ordinance.

B e I t Ordained by the City Council of the City of 
Prichard, A labama, as F ollows:

Section 1. Short Title. This Ordinance shall be known 
and may be cited as the “ Parade Ordinance of the City of 
Prichard.”

Section 2. Definitions.

(1) “ City Clerk” is the City Clerk of the City of 
Prichard.

(2) “ City” is the City of Prichard.

(3) “ Parade” is any parade, march, ceremony, show, 
exhibition, pageant, or procession of any kind, 
or any similar display, in or upon any street, 
park or other public place in the City.

(4) “ Parade Permit” is a permit as required by this 
Ordinance.

(5) “ Person” is any person, firm, partnership, as­
sociation, corporation, company or organization 
of any kind.

(6) “ City Council” is the City Council of the City of 
Prichard.

Section 3. Permit Required. No person shall engage in, 
participate in, aid, form or start any parade, unless a 
parade permit shall have been obtained from the City 
Council.



4

(1) Exceptions. This Ordinance shall not apply to:

(a) funeral processions;

(b) students going to and from school classes or 
participating in educational activities, pro­
viding such conduct is under the immediate 
direction and supervision of the proper 
school authorities;

(c) a governmental agency acting within the 
scope of its functions.

Section 4. Application. A  person seeking issuance of a 
parade permit shall file an application with the City Clerk 
on forms provided by the City Clerk.

(1) Filing Period. An application for a parade per­
mit shall be filed with the City Clerk not less 
than seven (7) days nor more than thirty (30) 
days before the date on which it is proposed to 
conduct the parade.

(2) Contents. The application for a parade permit 
shall set forth the following information:

(a) The name, address and telephone number 
of the person seeking to conduct such 
parade;

(b) If the parade is proposed to be conducted 
for, on behalf of, or by an organization, the 
name, address and telephone number of the 
headquarters of the organization, and of 
the authorized and responsible heads of such 
organization;



5

(c) The name, address and telephone number 
of the person who will be the parade chair­
man and who will be responsible for its 
conduct;

(d) The date when the parade is to be con­
ducted ;

(e) The route to be traveled, the starting point 
and the termination point;

(f) The approximate number of persons who, 
and animals and vehicles which, will con­
stitute such parade; the type of animals, 
and description of the vehicles;

(g) The hours when such parade will start and 
terminate;

(h) A  statement as to whether the parade will 
occupy all or only a portion of the width of 
the streets proposed to be traversed;

(i) The location by streets of any assembly 
areas for such parade;

(j) The time at which units of the parade will 
begin to assemble at any such assembly 
area or areas;

(k) The interval of space to be maintained be­
tween units of such parade;

(l) If the parade is designed to be held by, 
and on behalf of or for, any person other 
than the applicant, the applicant for such 
permit shall file with the City Clerk a com­
munication in writing from the person pro­
posing to hold the parade, authorizing the



6

applicant to apply for the permit on his 
behalf;

(m) Any additional information which the City 
Clerk shall find reasonably necessary to a 
fair determination as to whether a permit 
should issue.

(3) Late Applications. The City Council, where 
good cause is shown therefor, shall have the 
authority to consider any application hereunder 
which is filed less than seven (7) days before the 
date such parade is proposed to be conducted.

(4) Fee. There shall be paid at the time of filing 
the application for a parade permit a fee of 
$5.00.

Section 5. Standards for Issuance. The City Council 
shall issue a permit as provided for hereunder when, from 
a consideration of the application and from such other in­
formation as may otherwise be obtained, they find that:

(1) The conduct of the parade will not substan­
tially interrupt the safe and orderly movement 
of other traffic contiguous to its route;

(2) The conduct of the parade will not require the 
diversion of so great a number of police officers 
of the City to properly police the line of move­
ment and the areas contiguous thereto as to 
prevent normal police protection to the City;

(3) The conduct of such parade will not require the 
diversion of so great a number of ambulances 
as to prevent normal ambulance service to por­
tions of the City other than that to be occupied



7

by the proposed line of march and areas con­
tiguous thereto;

(4) The concentration of persons, animals and ve­
hicles at assembly points of the parade will not 
unduly interfere with proper fire and police pro­
tection of, or ambulance service to, areas con­
tiguous to such assembly areas;

(5) The conduct of such parade will not interfere 
with the movement of fire-fighting equipment 
enroute to a fire;

(6) The conduct of the parade is not reasonably 
likely to cause injury to persons or property, 
to provoke disorderly conduct or create a dis­
turbance ;

(7) The parade is scheduled to move from its point 
of origin to its point of termination expedi­
tiously and without unreasonable delays en­
route ;

(8) The parade is not to be held for the sole pur­
pose of advertising any product, goods or event, 
and is not designed to be held purely for pri­
vate profit.

Section 6. Notice of Rejection. The City Council shall 
act upon the application for a parade permit within three 
(3) days after the filing thereof. If the City Council dis­
approves the application, the City Clerk shall mail to the 
applicant within four (4) days after the date upon which 
the application was filed, a notice of the City Council’s 
action, stating the reasons for denial of the permit.

Section 7. Alternative Permit. The Council, in denying 
an application for a parade permit, shall be empowered to



8

authorize the conduct of the parade on a date, at a time, 
or over a route different from that named by the applicant. 
An applicant desiring to accept an alternate permit shall, 
within three (3) days after notice of the action of the City 
Council, file a written notice of acceptance with the City 
Council. An alternate parade permit shall conform to the 
requirements of, and shall have the effect of a parade 
permit under this Ordinance.

Section 8. Notice to City and Other Officials. Immedi­
ately upon the issuance of a parade permit, the City Clerk 
shall send a copy thereof to the following:

(1) The Chief of Police

(2) The City Attorney

(3) The Fire Chief

(4) The General Manager or responsible head of 
each public transportation utility, the regular 
routes of whose vehicles will be affected by the 
route of the proposed parade.

Section 9. Contents of Permit. Each parade permit 
shall state the following information:

(1) Starting time;

(2) Minimum speed;

(3) Maximum speed;

(4) Maximum interval of space to be maintained be­
tween the units of the parade;

(5) The portions of the streets to be traversed that 
may be occupied by the parade;



9

(6) The maximum length of the parade in miles or 
fractions thereof;

(7) Such other information as the City Council shall 
find necessary to the enforcement of this Ordi­
nance.

Section 10. Duties of Permittee. A  permittee hereunder 
shall comply with all permit directions and conditions and 
with all applicable laws and ordinances.

(1) Possession of Permit. The parade chairman or 
other person heading leading [sic] such activity 
shall carry the parade permit upon his person 
during the conduct of the parade.

Section 11. Public Conduct During Parades.

(1) Interference. No person shall unreasonably 
hamper, obstruct, or impede, or interfere with 
any parade or parade assembly or with any 
person, vehicle or animal participating or used 
in a parade.

(2) Driving Through Parades. No driver of a ve­
hicle, street car or trackless trolley shall drive 
between the vehicles or persons comprising a 
parade when such vehicles or persons are in mo­
tion and are conspicuously designated as a pa­
rade.

(3) Parking on Parade Route. The City Council 
shall have the authority, when reasonably 
necessary, to prohibit or restrict the park­
ing of vehicles along a highway or part thereof 
constituting a part of the route of a parade. 
The City Council shall cause the Chief of Police



10

to post signs to such effect, and it shall be un­
lawful for any person to park or leave unat­
tended any vehicle in violation thereof.

Section 12. Revocation of Permit. The City Council 
shall have the authority to revoke a parade permit issued 
hereunder upon failure of the applicants to comply with 
the standards for issuance and provisions herein set forth.

Section 13. Penalties. Any person, firm or corporation 
violating any of the provisions of this ordinance shall, upon 
conviction, be punished by a fine of not more than One 
Hundred ($100.00) Dollars, and may, in addition, be sen­
tenced to jail or hard labor for the City of Prichard for a 
period not to exceed six (6) months.

Section 14. Separability. If any section, subsection, 
sentence, clause, phrase or portion of this ordinance is for 
any reason held invalid or unconstitutional by any court 
of competent jurisdiction, such portion shall be deemed a 
separate, distinct and independent provision and such hold­
ing shall not affect the validity of the remaining portions 
hereof.

Section 15. All ordinances and parts of ordinances in 
conflict with the provisions of this ordinance are hereby 
repealed. The repeal provided in this section shall not af­
fect any offense or act committed before the adoption and 
publication of this ordinance.

Adopted this 20th day of May, 1968.

A pproved:

/ s /  V. O. Capps 
Mayor



11’

Statement of the Case

Petitioner A. Robert Ray, a Negro minister active in 
civil rights activities in Mobile County, Alabama, seeks 
review of his conviction for parading without a permit in 
violation of City Ordinance No. 1135 of Prichard, Mobile 
County, Alabama. Rev. Ray is president of the Mobile 
County Civil Rights Movement, an organization dedicated, 
among other things, to the attainment of equal employment 
opportunities for the citizens of Prichard (R. 128, 133).

On May 29, 1968, Rev. Ray, on behalf of the Movement, 
filed an application for a parade permit with the City 
Clerk, on a form supplied by her, in apparent conformity 
with an ordinance passed by the City nine days earlier, 
Ordinance No. 1135 (R. 32-39), set forth supra, pp. 3-10 
(R. 64-65). The application sought permission to conduct 
a parade on June 12th, between 3 :30 and 7 :30, from Rev. 
Ray’s church and back “ to dramatize the urgent need for 
Equal Opportunity Employment for all citizens” (R. 64-65, 
93-94, 133). The filing fee of $5.00 required by Section 
4(4) of the ordinance, see p. 6 supra, was paid June 6th 
(R. 65).

The next day, Friday, June 7th, the Mayor and City 
Council considered Rev. Ray’s application and rejected it, 
assigning ten reasons:

1. The application fails to comply with section 4, sub­
section (1) of Ordinance No. 1135, regulating the 
issuance of parade permits, since it was not filed 
seven days before the date on which the parade was 
proposed to be held.



12

2. The application failed to identify the time of day 
the parade was to commence and end, since it did 
not designate if the hours shown were A.M. or P.M.

3. The length of time requested for the parade was 
excessive in either case.

4. In the event it was the intent to have the parade 
in the afternoon, it would create a traffic hazard 
due to the congested traffic created by workers re­
turning to their homes after work hours.

5. The disaster which occurred in California this week 
has created an emotional strain upon society which 
is not conducive to a parade of this type.

6. The application failed to define the route the parade 
was to follow from Prichard Park (Zoo) to its point 
of disbandment.

7. The application failed to clearly define the number 
of persons to participate in the parade.

8. The application failed to give a definite time that 
the participants would begin to assemble at the 
assembly area.

9. Highway 45 and Wilson Avenue are State and Fed­
eral Highways and to congest them would be haz­
ardous to life and property.

10. The obstruction along the route designated could 
seriously hamper the answering of emergency calls 
including police, fire and ambulance calls.

The Mayor and City Council directed the City Clerk to 
transmit these reasons by letter to Rev. Ray and Herbert



13

Belt, executive director of the Movement. That letter, 
dated June 7th and received by Rev. Ray and Mr. Belt 
on June 10th, was referred to throughout Rev. Ray’s trial 
(R. 42, 45-46, 49, 107), but, apparently through inadvert­
ence,1 was not placed into evidence. A  certified copy of 
the letter has been placed on file with the Clerk of this 
Court and is reprinted as Appendix II, pp. 5a-7a, infra. 
Rev. Ray learned of the denial of the permit through press 
and radio that day and arranged for a meeting of repre­
sentatives of the Movement with the Mayor and City Coun­
cil for the next day (R. 93).

The next evening, Saturday, June 8th, the Mayor, all 
5 City Councilmen and the Chief of Police met with Rev. 
Ray, Mr. Belt and other representatives of the Movement 
in the Council chamber to discuss conditions for granting 
the parade permit (R. 60, 76, 84, 130).

The Mayor, 4 of the 5 City Councilmen, the Chief of 
Police, Rev. Ray, Mr. Belt and 2 other representatives of 
the Movement—Rev. Ely and Mr. Washington—all testi­
fied as to what transpired at that meeting. Their testimony 
is in agreement on the following points:

(1) That a discussion was carried on for about two 
hours on proposals by the Chief of Police for chang­
ing the time (from 3:30 p.m. to 1:00 p.m.) and the 
route of the march (R. 67-68, 77, 80-82, 110);

(2) That the representatives of the Movement agreed 
to these changes (R. 62, 86, 110); and

1 The attorney principally responsible for the ease attended the 
funeral of her father the day of trial; her law partner appeared and 
unsuccessfully sought a continuance (R. 22-26), and proceeded to 
trial that day only under protest (R. 17-18).



14

(3) That the Mayor and Conneilmen left the chamber 
for private discussion and, upon returning, an­
nounced that they no longer objected to the issuance 
of the permit (E. 62, 77-79, 81-83, 87, 92, 112).

The record is in sharp conflict, however, as to what the 
parties understood were the procedural steps to be taken 
for issuance of the permit. Conneilmen Cochran, Everette 
Turner, Sansom and Alford Turner all testified that the 
permit could be issued only after an “ official” Council 
meeting on Monday, for which they would require a new 
or amended application (E. 78, 86, 92, 110-12). Various 
reasons were given for this disposition. Councilman Alford 
Turner testified that this was not an “ official” meeting 
because notification of the meeting was by telephone rather 
than in writing (E. 113). Councilman Cochran testified 
that it was not an “ official” meeting because the City Clerk 
was not present (E. 79). The Mayor’s recollection of that 
meeting included no request for a new or amended permit 
application. He testified that the Movement representa­
tives “were to come back Monday to get the permit . . . 
after the Council took action” (E. 103).

The Movement representatives’ testimony supports the 
Mayor’s version. Mr. Belt testified that all the city offi­
cials requested was a copy of the grievances to be pre­
sented at City Hall and a copy of the new route they had 
worked out with the Chief of Police. Mr. Belt testified:

Well, we talked to them about a permit and at first, 
you know, the pros and cons and whether or not they 
were going to let us have it and we talked and talked 
until they agreed, they asked us to let them go outside 
of the chambers to discuss it among themselves. They



15

came back and they said OK we agree yon can go 
ahead and have it and I asked them, I said what do 
yon want from ns in writing and they said nothing 
(R. 93).

# # # & #

So I said we’re going ahead, we’ve got 50,000 pam­
phlets that we’re going to pnt ont and the Mayor said 
go ahead with your publicity. Those were the words 
he used and I said once we pnt them out we can’t re­
call them. What else do you want in writing. They 
said nothing. Then the Mayor spoke up and said 
you’d better give me a copy of the grievances because 
if you don’t I can only pass the buck (R. 94).

m #
So Rev. Ray said at that point I have a copy of that 
now and he give it to him. And I said what else do 
you want in writing and they said that they wanted 
the route and I said well, I can bring that Monday 
when I come to pick up the permit (R. 94).

Rev. Ray testified (R. 130-31):

I asked about the publicity that we were in the proc­
ess of getting out to the people, that they were waiting 
for an answer, that they were demanding an answer. 
He [the Mayor] told us to go ahead with the publicity. 
Rev. Ely was there, Rev. Matthew was there, Rev. 
Davis was there. We asked if it was expedient to go 
ahead and announce this from our pulpits and he said 
yes, make contact with all the people. Put out your 
handbills, whatever you have, whatever you’re in the 
process of doing, go ahead with it. Then they asked 
for a recess. They went out of the conference room



16

and stayed approximately five minutes and came back. 
Mr. Everette Turner said everything is all right, in 
order. What you all will do, Monday you will pick 
up your permit. Mr. Belt asked what do you want 
from us now? He said nothing. The Mayor spoke 
and said nothing but a copy of your grievances and 
I had prepared a copy of the grievances, duplicate 
form and presented it to the Mayor. . . .  We assured 
them that it would be a peaceful march and they asked 
if we had our own marshals and we assured them that 
we did have our own marshals. . . .  At that time we 
adjourned the meeting and we got up and the Mayor 
shook hands with all of us, the Councilmen exchanged 
handshakes with everybody. They said come in Mon­
day and pick up your permit and give the Chief of 
Police a list in writing of the route that he had out­
lined here tonight and that’s all.

Mr. Washington and Rev. Ely also testified that nothing 
had been said about a new or amended application (R. 119- 
21, 123).

The next day, Sunday, June 9th, the Negro ministers 
announced the march from their pulpits and thousands of 
handbills were distributed (R. 96-97, 105-06, 131).

On Monday, June 10th, Mr. Belt arrived at the Mayor’s 
office about 9:00 a.m. to pick up the permit (R. 95, 104). 
The Mayor told Mr. Belt that the Council meeting was 
set for noon and that he should return later (R. 104). 
Nothing was said about a new or amended application.

The Council did meet around noon (R. 103-04). The 
City Clerk was not present (R. 48), but was later directed 
by the Mayor and Councilmen to send a letter from them



17

to Rev. Ray and Mr. Belt (R. 48).2 The letter reaffirmed 
the Council’s rejection of the Movement’s application, cit­
ing the fifth reason stated in the letter of June 7th (“ The 
disaster which occurred in California this week has cre­
ated an emotional strain upon society which is not con­
ducive to a parade of this type.” ) and concluding (R. 46, 
107): “ In our opinion, this situation continues to such an 
extent that it would jeopardize the public safety and wel­
fare in Prichard were a march to be held at this time.” 
The letter also noted (R. 46, 107) :

Although we have informally discussed this matter 
with you subsequent to our denial of your application, 
you have not filed a new or amended application, and 
our rejection of your application remains in effect.

Mr. Belt returned to City Hall after lunch but could find 
none of the city officials he had been dealing with (R. 95). 
He searched “ desperately” (R. 97), until finally, at 3:40 
p. m., a city detective gave him a copy of the letter (R. 97, 
107).

The next day, Tuesday, June 11, Mr. Belt talked with 
the Mayor and told him that, because of the publicity dis­
tributed Sunday in reliance upon the Saturday night meet­
ing, it was too late to call off the march (Mayor Capp’s 
testimony (R. 105)). Wednesday, June 12, the day of the 
march, Mr. Belt telephoned each of the Councilmen trying 
to arrange for the Mayor to speak to the marchers wherever 
they were halted by the police, after which speech they 
would return to the church. Mr. Belt told each of the 
Councilmen: “ I said please don’t put us outside the law.

2 Their copies were introduced into evidence as Exhibits B and D 
(R. 45-46,106-108).



18

We don’t have no intention of being outside the law” (E. 
100). Mr. Belt continued (E. 100-01):

We was going to walk until we get to the barricade 
and the Mayor was going to talk to the people and we 
were going to turn the people around and bring them 
back to the church. This was our understanding. We 
was not supposed to be arrested.

It did not work out that way. About 1 :15 p. m. Eev. Eay 
led his group of marchers from his church. The Chief of 
Police testified that the group numbered around 200 (E. 52). 
The only other police witness, Lt. Bryant, testified that 
the group numbered “ in excess of 100” (E. 69). The group 
marched in the street (there are no sidewalks, E. 118) for 
about 2y2 blocks until their path was blocked by a police 
line (E. 52-53). The chief informed the group, led by Eev. 
Eay and two flag bearers (B. 70)3 that they were in vio­
lation of the parade ordinance and ordered them to disperse 
(B. 53). Chief Davis testified that about 100 persons left 
the line of march (E. 54); Lt. Bryant testified that only 
“ a few” left the line of march (E. 70). The Mayor did not 
appear. Eev. Eay and 98 others stood their ground and 
were arrested.

Both Chief Davis and Lt. Bryant testified that the short­
lived march was peaceful and orderly (E. 62, 74).

Eev. Eay and the others were charged with violating 
Ordinance No. 1135, set forth supra, pp. 3-10, in that they 
“did engage in, participate in, aid, form, or start a parade 
in the City of Prichard without securing a parade permit” 
(E. 1, 6). After trial and conviction in the Becorders’ 
Court of Prichard, where he was sentenced to 60 days im­

3 One was the American flag and the other a church flag (R. 
118-19).



19

prisonment and fined $100.00 (R. 2), Rev. Ray was tried 
de novo in the Circuit Court of Mobile County.

Prior to trial petitioner filed demurrers challenging 
Ordinance No. 1135, both on its face and as applied in his 
case, as repugnant to the First and Fourteenth Amend­
ments (R. 4-5, 7-9, 28). The demurrers were overruled 
(R. 6-7, 9). Petitioner was convicted and sentenced to 
60 days imprisonment (suspended, on condition of one 
year’s good behavior) and $100.00 fine (R. 9-11).

The other cases were stipulated to be governed by this 
case.

Petitioner unsuccessfully moved for a new trial, again 
challenging Ordinance No. 1135, on its face and as applied 
to convict him, as repugnant to the First and Fourteenth 
Amendments (R. 12-18). Petitioner renewed this chal­
lenge to Ordinance No. 1135 in his appeal to the Court of 
Appeals of Alabama. Petitioner’s counsel set forth and 
briefed five assignments of error in her brief (Supple­
mental Record 22-31). The City’s brief responded to these 
five assignments of error and prayed that petitioner’s con­
viction be affirmed on the merits (S. R. 46-48).

On March 4, 1969, the Court of Appeals, First Division, 
sua sponte dismissed petitioner’s appeal on the ground 
that petitioner’s assignments of error had not been placed 
on the blank page reserved for that purpose in the record 
(R. 148-49; A. la-2a, infra). Petitioner’s counsel attempted 
to cure this omission by petitioning for rehearing and 
supplying assignments of error collected on two sheets of 
transcript paper for insertion into the record (R. 150-52). 
Rehearing was denied without opinion (R. 153) and, on 
May 8, 1969, the Supreme Court of Alabama denied peti­
tioner’s timely petition for writ of certiorari (R. 158).



20

REASONS FOR GRANTING THE WRIT

I.

Certiorari Should Re Granted to Review and Reverse 
Petitioner’ s Conviction for  Parading Without a Permit 
as Repugnant to the First and Fourteenth Amendments.

In a long line of decisions from Lovell v. Griffin, 303 
U. S. 444 (1938), to Shuttlesworth v. City of Birmingham, 
394 U. S. 147 (1969), this Court has acted to prevent state 
officials from breaching their public trust to keep open 
streets and parks “ for purposes of assembly, communicat­
ing thoughts between citizens, and discussing public ques­
tions.” Hague v. C. I. 0., 307 U. S. 496, 515-16 (1939).4

The guidelines for review are well settled. As this Court 
recently stated in Shuttlesworth, 394 U. S. at 155:

The inquiry in every case must be that stated by Chief 
Justice Hughes in Cox v. New Hampshire, 312 U. S. 
569: Whether control of the use of the streets for a 
parade or procession was, in fact, “ exerted so as not 
to deny or unwarrantedly abridge the right of assembly 
and the opportunities for the communication of thought 
and the discussion of public questions immemorially 
associated with resort to public places.” Id., at 574.

The City Council’s final denial of June 10th of the 
Movement’s application for a parade permit abridged the 
right of assembly of petitioner and the other members of 
the Movement. Because of the absence of any Alabama 
procedures for expeditious judicial review of the Council’s 
action, see Mr. Justice Harlan’s concurring opinion in

See cases cited in Shuttlesworth, supra, 394 U. S. at 151, n. 2.



21

Shuttlesworth, supra, 394 IT. S. at 161-64, the Council’s 
denial “had the practical effect of the decision of a court 
of last resort” {Id. at 160). See also the concurring opinion 
of Mr. Justice Frankfurter in Poulos v. New Hampshire, 
345 U. S. 395, 420 (1943), cited in Shuttlesworth, supra, 
394 U. S. at 155, n. 4, in support of the requirement of 
“ the availability of expeditious judicial review of the . . . 
refusal of a permit.” 5

The Council’s letter of June 10th assigned two reasons 
for the denial:

1. “ [T]hat it would jeopardize the public safety and 
welfare in Prichard were a march to be held at this 
time” (E. 46,107);

2. That the Movement had not filed a new or 
amended application incorporating the changes in time 
and route agreed to at the “ unofficial” Council meeting 
of June 8th (R. 46,107).

The first reason was originally stated in the June 7th 
letter and amplified in the June 10th letter as grounded 
upon the Council’s apprehension that “ the public safety 
and welfare” might be jeopardized by the Movement’s 
march:

The disaster which occurred in California this week 
has created an emotional strain upon society which is

5 In Poulos, this Court upheld New Hampshire’s insistence that 
the issue of the unlawful denial of a parade permit be raised 
“ through appropriate judicial procedure,” 345 U. S. at 409, rather 
than by defense to a criminal prosecution; in Poulos, there was an 
“ absence of any showing that Poulos did not have available a 
prompt judicial remedy” (345 U. S. at 420). Here, unlike Poulos, 
there is no apparent state bar to raising the issue defensively in a 
criminal prosecution and no prompt judicial remedy.



22

not conducive to a parade of this type (see p. 12, 
supra).

In onr opinion, this situation continues to such an 
extent that it would jeopardize the public safety and 
welfare in Prichard were a march to be held at this 
time (R. 46,107).

Thus, the denial reflected the intention of the Mayor and 
Councilmen to introduce a new standard based upon “ the 
public safety and welfare” into Section 5 of the ordinance, 
see pp. 6-7, supra. This de facto expansion of Section 5 
brought it squarely within the condemnation of Shuttles- 
worth, supra, 394 U. S. at 150-51:

[I]n  deciding whether or not to withhold a permit, the 
members of the Commission were to be guided only by 
their own ideas of ‘public welfare, peace, safety, health, 
decency, good order, morals, or convenience.’ This 
ordinance as it was written, therefore, fell squarely 
within the ambit of the many decisions of this Court 
over the last 30 years, holding that a law subjecting 
the exercise of First Amendment freedoms to the prior 
restraint of a license, without narrow, objective, and 
definite standards to guide the licensing authority, is 
unconstitutional.

Moreover, the fear expressed by the Mayor and Council- 
men of “ an emotional strain upon society,”  finds no sup­
port in this record. “ [I]n  our system, undifferentiated fear 
or apprehension of disturbance is not enough to overcome 
the right to freedom of expression.” Tinker v. Des Moines 
Independent Community School District, 393 U. S. 503, 508 
(1969).



23

The Council’s second ground for the denial was that the 
Movement had failed to file a new or amended application 
setting forth the changes in time and route agreed to by 
the parties to the June 8th “unofficial” Council meeting. 
This ground of denial fails, for three reasons. First, a 
new or amended application would have availed the Move­
ment nothing, since such an application would have been 
unable to overcome the officials’ “undifferentiated fear” 
that the march “would jeopardize the public safety and 
welfare in Prichard.” Second, on this record, it is doubtful 
that the Council’s demand for a new or amended application 
was ever communicated to the Movement representatives, 
see pp. 14-16, supra. Third, even assuming that this demand 
was communicated to the Movement’s representatives, it 
was at most a technicality. The Council was fully empow­
ered by Section 7 of the ordinance, set forth supra, pp. 7-8, 
“ to authorize the conduct of the parade on a date, at a 
time, or over a route different from that named by the 
applicant” without the necessity of a new or amended appli­
cation. The Movement’s failure, if such it was, to file a 
new or amended application in no way resulted in the 
Councilmen being deprived of information necessary to re­
sponsibly issue the permit. The changes were primarily 
the product of the Chief of Police and were agreed to by 
the Movement representatives to satisfy the Council’s 
earlier objections. It appears that these changes did satisfy 
the earlier objections (except, as it turned out, No. 5). 
For example, it must be presumed that, after the “un­
official” Council meeting of June 8th, the Councilmen no 
longer thought it possible that petitioner might wish to 
begin the parade at 3 :30 a. m. (original reason No. 2). And 
presumably original reasons 3-4, 6-10, which were all based



24

upon objections to the original time and route, were dis­
pelled by the new time and route.

That leaves only original reason No. 1, which rejected 
petitioner’s application as “ late” because it had not been 
filed at least 7 days before the proposed march. It is 
doubtful that this objection was reactivated by the letter 
of June 10th, for three reasons:

1. The application was actually filed on May 29, 1968 
■—14 days before the proposed march (although the fee 
of $5.00 was not paid until 6 days before the proposed 
m arch);

2. There is no indication that the Councilmen’s delib­
erations were in any way hampered by the fact they were 
given only 6 days notice; between June 7th and June 10th 
they met three times and apparently deliberated fully on 
the application; and,

3. The Councilmen waived this objection at the June 
8th “unofficial” meeting, as the circumstances of this case 
clearly indicated there was “ good cause” to do so, Section 
4(3), see p. 6, supra* 6

6 Under the view we take of this case, it is unnecessary for the 
Court to reach the issue of whether petitioner’s application was 
“ late” for purposes of the First and Fourteenth Amendments. 
Nevertheless, petitioner does not wish to be understood as waiving 
this issue. Petitioner’s application was untimely only if the $5.00 
fee for the permit can constitutionally be imposed. This is not free 
from doubt. Compare Murdock v. Pennsylvania, 319 U. S. 125 
(1943) with Cox v. New Hampshire, 312 U. S. 569, 576-77 (1941). 
See also Busey v. District of Columbia, 138 F. 2d 592 (D. C. Cir. 
1943). Nor is it free from doubt whether a filing period of more 
than 6 days can constitutionally be required. See Freedman v. 
Maryland, 380 U. S. 51, 58-61 (1965); Teitel Film Corp. v, Cusack, 
390 U. S. 139 (1968) ; York v. City of Danville, 207 Ya. 665, 152 
S .E . 2d 259 (1967).



25

This case is important not only because Prichard offi­
cials exerted their licensing authority so as to offend prin­
ciples established by decades of decisions of this Court 
but also because the convictions in this and companion 
cases threaten the very life of the Movement.7 If Prichard 
is permitted to exact from the Movement a cumulative 
fine of between $5,000.00 and $10,000.00 and to hold sus­
pended jail terms over the heads of its members, then the 
constructive, peaceful and nonviolent work of the Move­
ment will be crippled. This result can and should be pre­
vented by this Court.

n.
Petitioner’s Procedural Default Is Too Insubstantial to 

Preclude This Court’ s Review of His Important Federal 
Claims.

“ [T]he question of when and how defaults in compliance 
with state procedural rules can preclude our consideration 
of a federal question is itself a federal question . . . [A] 
litigant’s procedural defaults in state proceedings do not 
prevent vindication of his federal rights unless the State’s 
insistence on compliance with its procedural rule serves 
a legitimate state interest.” Henry v. Mississippi, 379 U. S. 
443, 447 (1965).

In this case the procedural default was petitioner’s coun­
sel’s failure to collect her assignments of error in one 
place in the record instead of, or in addition to, placing

7 Following Rev. Ray’s trial in the Circuit Court, the other 
marchers pleaded guilty, with the understanding that they would 
not be sentenced until final disposition of this case by this Court, 
and that their convictions would be vacated if this Court reversed.



26

them in her brief together with supporting arguments. 
See p. 19, supra.

Under the circumstances of this case, this is hardly an 
omission sufficient to bar this Court’s review of petitioner’s 
substantial federal claims. Alabama Supreme Court Rule 1 
requires assignments of error to be typed on transcript 
paper and bound in the record on appeals to the Court of 
Appeals or Supreme Court; however, Code of Ala., Tit. 15, 
§389 dispenses with assignments of error in criminal 
appeals to the Court of Appeals or Superior Court. Peti­
tioner’s counsel relied upon §389, unaware of its non- 
obvious construction that assignments of error were un­
necessary in criminal appeals from convictions under state 
statutes but necessary in criminal appeals from convictions 
under municipal ordinances. See Rosa Parks v. City of 
Montgomery, 38 Ala. App. 681, 92 So. 2d 683 (1957).

Nonetheless, petitioner’s counsel complied with the sub­
stance of Rule 1 by including the assignments of error in 
her brief, see Supplemental Record, pp. 22-31. No action 
on these assignments of error was required by the Circuit 
Court and their consideration by the Court of Appeals was 
in no way prejudiced by their omission from the blank page 
in the record. Here, as in Wright v. Georgia, 373 U. S. 
284, 290-91 (1963), examination of petitioner’s brief ex­
poses the insubstantiality of the procedural default. To 
bar review in this case would be to resort to “ an arid ritual 
of meaningless form.”  Staub v. Baxley, 355 U. S. 313, 320 
(1958). See also, NAACP v. Alabama, 377 U. S. 288, 
293-97 (1964); Parrot v. Tallahassee, 381 U. S. 129 (1965).



27

CONCLUSION

For the foregoing reasons, the writ of certiorari should 
be granted and the judgment below reversed.

Bespectfully submitted,

F rankie F ields 
V ernon Z. Crawford 

1407 Davis Avenue 
Mobile, Alabama 36603

Jack Greenberg 
J ames M. Nabrit, III  
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner



A P P E N D I C E S



la

APPENDIX I

Opinion of the Court of Appeals of Alabama

T he State o f  A labama— J udicial Department 

THE ALABAM A COURT OF APPEALS 

October T erm, 1968-69
1 Div. 383

A. R obert R ay

Y.

City of P richard

APPEAL FROM MOBILE CIRCUIT COURT

Cates, Judge

This is a purported appeal from a judgment of convic­
tion of a breach of a city ordinance requiring a permit to 
parade on city streets.

I.

Although the Clerk of the Circuit Court left a blank page 
therefor, this record comes here without any assignments 
of error. See Supreme Court Rule 1.

H.

A  writ of error is a proceeding in an “ appellate” or 
revisory higher court whereunder the judges are author­
ized to examine a record on which a judgment has been



2a

given in a lower court of record. Cohens v. Virginia, 
6 Wheat. 264, 409, 410.

This concept of essentially a new suit led to the pleading 
device of the allegation, e. g., “ that manifest error to the 
hurt and prejudice of your appellant is made to appear 
in that * * * ” Jones, Alabama Practice and Forms, §§ 35, 
36 and 5571. This is the frame of the assignment of error. 
5 Am. Jur. 2d, Appeal and Error, § 648.

Though the writ of error is no longer available in Ala­
bama, except in criminal cases, assignments are still man­
datory on submitting an appeal. Also, the assignments 
must be bound in the record. Fuller v. Porter, 274 Ala. 
321, 148 So. 2d 648.

In criminal appeals, Code’ 1940, T. 15, §389, expressly 
abolishes assignments of error. This expression of the one 
has been held to be exclusive as to other classes of appeal. 
The instant appeal is not criminal. Casteel v. City of 
Decatur, 215 Ala. 4, 109 So. 571 (3).

The dispensation of § 389, supra, does not compass ap­
peals from convictions of violating municipal ordinances. 
See Woods v. City of Tuscaloosa, 43 Ala. App. 626, 198 So. 
2d 306; 37 Am. Jur., Municipal Corporations, § 202.

Under the authority of Parhs v. City of Montgomery, 
38 Ala. App. 681, 92 So. 2d 683, wherein many cases are 
cited, the judgment below is due to be

A ffirmed.



3a

Judgment of the Court of Appeals of Alabama

T he State of A labama— J udicial Department 

THE ALABAM A COURT OF APPEALS 

October T erm, 1968-69

1 Div. 383
--    —   — —  --------- —

A. R obert Rat 

v.

City of Prichard

APPEAL FROM MOBILE CIRCUIT COURT

October 24, 1968 
Certificate F iled

December 26, 1968 
Transcript F iled

February 20, 1969
Come the parties by attorneys, and submit this cause 

on briefs for decision.

March 4, 1969
(J udgment)

Come the parties by attorneys, and the record and mat­
ters therein assigned for errors, being submitted on briefs 
and duly examined and understood by the court, it is con­
sidered that in the record of the Circuit Court there is no 
error, no assignments of error having been entered in the 
transcript. It is also considered that the appellant pay 
the costs of appeal of this court and of the Circuit Court.



4a

Order of the Supreme Court of Alabama 
Denying Certiorari

THE SUPREME COURT OF ALABAM A 

T hursday, May 8, 1969

T he Court Met P ursuant to A djournment

P resent :

Chief J ustice L ivingston and A ssociate Justices 
Lawson, Simpson, Merrill, Coleman,

Harwood and Bloodworth.

1st Div. 583

Ex parte: A. Robert Ray, Petitioner

P etition for W rit of Certiorari to the Court of A ppeals

(R e : A. Robert Ray v. City of Prichard)

Comes the petitioner, by his attorney, and the Petition 
for Writ of Certiorari to the Court of Appeals being sub­
mitted on briefs and duly examined and understood by 
the Court,

I t is ordered that the Writ be and the same is hereby 
denied and that the Petition be and the same is hereby 
dismissed, at the costs of petitioner, for which costs let 
execution issue.

(Livingston, C. J., Lawson, Merrill 
and Harwood, JJ., concur.)

(No Opinion written)



5 a

APPENDIX II

Certified Copy of Letter of June 7, 1968 From the Mayor 
and City Council of Prichard to the Mobile County 

Civil Rights Movement

(Letterhead of City of Prichard, Alabama) 

October 11, 1968

I, Berniece H. Centanne, City Clerk of the City of Prichard, 
Alabama hereby certify that the attached record is a true 
and correct copy of a record on file in the City Clerk’s 
Office in the City of Prichard, Alabama.

/ s /  Berniece H. Centanne

Berniece H. Centanne, City Clerk

June 7, 1968

Mobile County Civil Bights Movement 
Bev. A. Bobert Bay 
219 “D” St.

Prichard, Ala.
Mr. Herbert Belt 
241 Chicago Ave.
Prichard, Ala.

Gentlemen:

You are hereby notified that the application for a parade 
permit filed with the City Clerk on June 6, 1968, in your



6a

names, was considered by the Mayor and City Council on 
this date and rejected for the following reasons:

1. The application fails to comply with section 4, sub­
section (1) of Ordinance No. 1135, regulating the 
issuance of parade permits, since it was not filed 
seven days before the date on which the parade was 
proposed to be held.

2. The application failed to identify the time of day 
the parade was to commence and end, since it did 
not designate if the hours shown were A.M. or P.M.

3. The length of time requested for the parade was 
excessive in either case.

4. In the event it was the intent to have the parade 
in the afternoon, it would create a traffic hazard 
due to the congested traffic created by workers re­
turning to their homes after work hours.

5. The disaster which occurred in California this week 
has created an emotional strain upon society which 
is not conducive to a parade of this type.



7a

6. The application failed to define the route the parade 
was to follow from Prichard Park (Zoo) to its point 
of disbandment.

7. The application failed to clearly define the number 
of persons to participate in the parade.

8. The application failed to give a definite time that 
the participants would begin to assemble at the 
assembly area.

9. Highway 45 and Wilson Avenue are State and Fed­
eral Highways and to congest them would be haz­
ardous to life and property.

10. The obstruction along the route designated could 
seriously hamper the answering of emergency calls 
including police, fire and ambulance calls.

The Mayor and City Council requests that I convey to 
you that they stand ready to meet with your grievance 
committee at any reasonable time.

Tours very truly,

/ s /  Berniece II. Centanne 
Berniece H. Centanne 
City Clerk