Zellner v. Lingo Brief for Appellants

    Imteii # ta ta  (Eaurf of Appeals
F or t h e  F if t h  C ir c u it

No. 20,823

J o h n  R o b e r t  Z e l l n e r , et al.,
Appellants,

-v.-

Al L in g o , Director of Public Safety for the 
State of Alabama, et at,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

BRIEF FOR APPELLANTS

F red  D . G ray
34 North Perry Street 
Montgomery, Alabama

J a c k  G reen berg  
C o n stan ce  B a k e r  M o tle y  
D e r r ic k  A. B e l l , J r . 
N o r m a n  C. A m a k e r  

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



INDEX TO BRIEF
PAGE

Statement of the Case .................................................... 1

Specification of Error ............ .......................................  5

A r g u m e n t

The Court Below Erred in Dismissing Appellants’ 
Complaint, Because Appellants Established a Fed­
eral Cause of Action in Equity .............................. 5

C o n c l u s io n ...................................................................... 17

T ab le  oe C ases

Anderson v. City of Albany (5th Cir., July 26, 1963) 12

Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss.
1961), rev’d 369 U. S. 31 ........ ................................... 8,12

Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) .......5,12
Boman v. Birmingham Transit Co., 280 F. 2d 531

(5th Cir. 1960) ........................ ..................................  5
Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956),

atf’d 352 U. S. 903 .......................................................  9
Bush v. Orleans Parish School Board, 191 F. Supp.

871 (E. D. La. 1961), aff’d sub nom. Legislature of
Louisiana v. United States, 367 U. S. 908 .................. 13

Bush v. Orleans Parish School Board, 194 F. Supp. 182 
(E. D. La, 1961), aff’d 368 U. S. 11 .........................  11

Cantwell v. Connecticut, 310 U. S. 296 .........................  5
Cleary v. Bolger, 371 U. S. 392 .............. ..... .........14,15,16
Crandall v. Nevada, 6 Wall. 35 .....................................  5

Denton v. City of Carrollton, Georgia, 235 F. 2d 481
(5th Cir. 1956) .............................. .............. ............... -  13

Douglas v. Jeannette, 319 U. S. 157......................7, 8,10,14



II
PAGE

Edwards v. California, 314 U. S. 160 ......................... 5
Edwards v. South Carolina, 372 U. S. 229 .................  5
Evers v. Dwyer, 358 U. S. 202 ..................................... 12

Harrison v. NAACP, 360 U. S. 167  ..............................  13

Jordan v. Hutcheson, 4th Cir., September, 1963 ..........  13
Julian v. Central Trust Co., 193 U. S. 9 3 ...................... 13

Looney v. Eastern Texas E. Co., 247 U. S. 214............  13

McNeese v. Board of Education, 373 U. S. 668 ............ 9,13
Marsh v. Alabama, 326 U. S. 501............... .....................  17
Monroe v. Pape, 365 U. S. 167........................................  5, 9
Morgan v. Virginia, 328 U. S. 373 .............................  5
Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958) .... 10 
Murdock v. Commonwealth of Pennsylvania, 319 U. S.

105 .................................................................................. 8

Stefanelli v. Minard, 342 U. S. 117......................... 14,15,16
Stromberg v. California, 283 U. S. 359 .........................  5

Terrace v. Thompson, 263 U. S. 197 ............................ . 16
Thomas v. Collins, 323 U. S. 516 .................................  5
Turner v. Memphis, 369 U. S. 350 ................................. 12

United States v. Wood, 295 P. 2d 772 (5th Cir. 1961) 10

Wolf v. Colorado, 338 U. S. 25 ..................................... 15

F edekal S ta t u t e s

28 United States Code, §2281 ........................................  12
28 United States Code, §2283 ........................................  13
42 United States Code, §1983 ..................................... 8, 9,10



Mnxtvb States (Burnt uf Appeals
F or t h e  F if t h  C ircuit  

No. 20,823

J o h n  R obert Z elln eb , et al.,
Appellants,

A l  L ingo , Director of Public Safety for the 
State of Alabama, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

BRIEF FOR APPELLANTS

Statement of the Case

Appellants filed a complaint on May 3, 1963 in the United 
States District Court for the Middle District of Alabama, 
Northern Division, against appellee Al Lingo, Director of 
Public Safety for the State of Alabama. Jurisdiction of 
the trial court was based on Title 28, United States Code, 
§1343(3); Title 42, United States Code, §1983 and Article 
I, Section 8, Clause 3 of the Constitution of the United 
States. -

Because the case was disposed of on motion to dismiss, 
the allegations of the complaint will be stated as if they 
were proved to have occurred.



2

Appellee, the Safety Director for the State of Alabama, 
and his agents, acting under color of statutes, ordinances 
and regulations of the State of Alabama, threatened ap­
pellants with deprivation of rights, privileges and immu­
nities secured by the Constitution of the United States 
(E. 2) under the following circumstances:

Appellants, Negro and white persons, had begun a 
“Freedom Walk” from Chattanooga, Tennessee to Jackson, 
Mississippi on May 1, 1963 as a memorial to one William 
Moore who was shot and killed near Gadsden, Alabama on 
April 23, 1963, while walking along the highway with signs 
urging an end to segregation (E. 4). Carrying signs con­
cerning equal rights, they intended to walk along U. S. 
Boute 11, two abreast at fifteen foot intervals, clear of and 
facing vehicular traffic, obedient to all traffic and other 
laws (E. 4-5). Upon the public announcement of appel­
lants’ plans, appellee ordered the appellants’ arrest on 
charges of breach of the peace if they entered Alabama 
while on this walk (E. 5). Eight persons participating 
in a “ Freedom Walk” had already been arrested in Etowah 
County near Attalla, Alabama on May 1, 1963 (E. 5). The 
complaint alleged that appellants’ arrest and prosecution 
under these circumstances violated their constitutional 
rights under the due process, equal protection and privi­
leges and immunities clauses of the Fourteenth Amend­
ment, as well as their rights under Article I, Section 8, 
Clause 3, of the Constitution of the United States (E. 5).

Appellants sought a temporary restraining order and a 
preliminary and permanent injunction enjoining appellee, 
his agents, subordinates, employees, attorneys and succes­
sors, and all persons in active concert and participation 
with him from interfering, by arrest, prosecution, and im­
prisonment, with appellants’ constitutionally protected 
right to walk peacefully along the public highways in the



3

State of Alabama, thereby expressing their views on racial 
segregation (E. 6-8).

Between 2:30 and 2 :45 P.M., May 3, 1963, appellants 
were arrested at the direction of appellee A1 Lingo, Direc­
tor of Public Safety for the State of Alabama and charged 
with breach of the peace. On May 7, 1963, appellees Rich­
mond Flowers, Attorney General of the State of Alabama 
and Gordon Madison, Assistant Attorney General of Ala­
bama, sought and obtained from the Circuit Court of 
Dekalb County, without prior notice to appellants nor to 
the organizations mentioned below, a temporary injunc­
tion against appellants herein and the Congress of Racial 
Equality, a New York corporation, the Student Non- 
Violent Coordinating Committee, an unincorporated as­
sociation with its principal place of business in Atlanta, 
Georgia, and the National Association for the Advance­
ment of Colored People, a New York corporation (R. 15-16, 
22-23, 26-27, 28-29). Said injunction enjoined and re­
strained appellants and the above-named organizations 
from “any acts designated in the petition, particularly: 
engaging in, sponsoring, or encouraging so-called ‘Free­
dom Walks’ and from performing acts reasonably calcu­
lated to cause breaches of the peace in Dekalb County, 
Alabama, and from doing any acts designed to consummate 
conspiracies to engage in said unlawful acts which are 
reasonably calculated to cause a breach of the peace in 
Dekalb County, Alabama” (R. 15-16, 25, 29). In the peti­
tion for injunction submitted to the Circuit Court of De­
kalb County, Attorney General Flowers alleged that 
“ ‘Freedom Walks’ are not bona Me activities but are cal­
culated to gain national publicity and to foment violence 
and to cause breaches of the peace within the State of 
Alabama and within this county, and that such activities 
have constituted a breach of the peace” (R. 26).



4

May 18, 1963, appellants filed an amended and supple­
mental complaint adding additional plaintiffs and defen­
dants and instituting a class action on behalf of themselves 
and others similarly situated. Motions to dismiss were 
sustained against this complaint and its allegations must, 
therefore, be taken as true for purposes of this appeal. 
The supplemental complaint alleged that the detention of 
appellants by appellees Richards, Colvard, Holman and 
others acting under their control, impaired the exercise of 
constitutionally protected rights; viz., to walk peacefully 
through the State of Alabama upon the public highways, to 
freedom of speech and protest against racial injustice, to 
equal protection of the laws of the State of Alabama and the 
privileges and immunities of United States citizens (R. 17). 
Appellants further averred in their supplemental com­
plaint that the injunctive decree issued by the Circuit 
Court of Dekalb County was an interference with, an im­
pediment to, and in contravention of, the already existing 
jurisdiction of the United States District Court for the 
Middle District of Alabama, Northern Division (R. 16).

Appellants, on behalf of themselves and others similarly 
situated, filed an amended motion for preliminary injunc­
tion seeking to enjoin appellees from continuing to inter­
fere, by arrest, prosecution and imprisonment, with the 
constitutionally protected right to walk peacefully along 
the public highways of the State of Alabama and to restrain 
appellees from enforcing the state court injunction issued 
by the Circuit Court of Dekalb County (R. 18-19, 30-31).

Appellees, assigning various grounds in support, all filed 
separate motions to dismiss the complaint (R. 32-40). On 
June 19, 1963 Judge Frank M. Johnson, Jr., United States 
District Judge, dismissed the complaint for want of equity 
(R. 43, 45-47), reported at 218 F. Supp. 513. Notice of 
Appeal was filed July 9, 1963 (R. 50-51).



5

Specification o f Error

The court below erred in dismissing appellants’ com­
plaint, because appellants established a federal cause of 
action in equity.

A R G U M E N T
The Court Below Erred in Dismissing Appellants’ Com­

plaint, Because Appellants Established a Federal Cause 
o f Action in Equity.

Appellants announced that they planned to set out upon 
a “ Freedom Walk” to commemorate the death of William 
Moore, who had been shot and killed while engaged in this 
act of protest against racial discrimination. Beyond ques­
tion, appellants’ protest was protected by the Constitution. 
It was an exercise of First and Fourteenth Amendment 
rights. Edwards v. South Carolina, 372 IT. S. 229; Strom- 
berg v. California, 283 U. 8. 359; Cantivell v. Connecticut, 
310 IT. S. 296. Moreover this protest invoked other con­
stitutional protections, such as the protection afforded 
movement through the states without arbitrary arrest and 
harassment, Edwards v. California, 314 U. S. 160; Cran­
dall v. Nevada, 6 Wall. 35, and the protection afforded 
travel in interstate commerce, Morgan v. Virginia, 328 U. S. 
373.

Because they were engaged in the exercise of consti­
tutionally protected expression, they were not subject to 
interference by state authorities seeking to prevent expres­
sion of their views. State interference, whether by arrest, 
Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958); Boman 
v. Birmingham Transit Co., 280 F. 2d 531 (5th Cir. 1960); 
cf. Monroe v. Pape, 365 IT. S. 167; prosecution, Edwards v. 
South Carolina, 372 IT. S. 229; conviction or injunction, 
Thomas v. Collins, 323 U. S. 516, would obviously run afoul 
of the Fourteenth Amendment.



6

Therefore when the Safety Director for the State of 
Alabama, A1 Lingo, announced that upon appellants’ en­
trance into Alabama they would be arrested, placed in jail, 
and charged with breach of the peace, appellants—prior 
to crossing the border—filed this suit in the United States 
District Court for the Middle District of Alabama to pre­
vent appellee Lingo from carrying out his threat.

Appellants entered the state of Alabama and while con­
tinuing to act peacefully and in the exercise of constitu­
tionally protected rights of free expression were arrested 
by appellee Lingo. Upon arrest, appellants were taken to 
the DeKalb County Jail, Port Payne, Alabama and were 
charged with “ conduct calculated to provoke a breach of 
the peace.” On May 7, 1963, appellee Flowers, Attorney 
General of Alabama, and his Assistant, Gordon Madison, 
petitioned the Circuit Court of DeKalb County for a writ 
of injunction against appellants and a number of organi­
zations alleged to be connected with them. A temporary 
injunction was issued without prior notice, as prayed for.

The arrests and the issuance of the injunction effectively 
frustrated appellants’ desire to conclude their “ Freedom 
Walk” . The exercise of their constitutional rights was, and 
continues to be, restrained.

In order to further assert and protect their constitutional 
rights appellants filed a supplemental complaint in the 
United States District Court and brought to the Court’s 
attention these additional events which had occurred sub­
sequent to the filing of the original complaint. Appellants 
asked that the actions which state authorities had taken 
to prevent completion of the “Freedom Walk” be enjoined. 
This the District Court refused to do and, in this refusal, 
we submit its action was erroneous.



7

The District Court held that it possessed jurisdiction 
(218 F. Supp. at 515). Moreover the District Court strongly 
suggested that appellants’ view of their substantive rights 
under United States Supreme Court decisions was cor­
rect (218 F. Supp. at 518). Moreover, the District Court 
was strongly critical of appellees for having interfered 
with these rights. The Court said:

The action now being taken by this Court in refusing 
to enjoin the criminal prosecution of these plaintiffs 
by officers acting under color of law for the State of 
Alabama must not be construed as an approval of 
the action taken by these officers in arresting and 
prosecuting these plaintiffs under the guise of main­
taining and preserving the peace and tranquility of 
the State of Alabama. 218 F. Supp. at 518. (Emphasis 
supplied.)

The District Court also was critical of appellees for 
having “ run” to the Circuit Court of DeKalb County (218 
F. Supp. at 518).

The District Court, however, refused, as an exercise of 
comity and equitable discretion, to grant an injunction, 
relying upon Douglas v. Jeannette, 319 U. S. 157.

In this we submit the Court below erred and the judg­
ment should be reversed.

Douglas v. Jeannette held that federal courts, as a mat­
ter of comity and equitable discretion, should not interfere 
with state criminal proceedings and law enforcement offi­
cials when an adequate remedy is provided in the state 
proceedings for the protection and assertion of all consti­
tutional rights. But, the Court recognized that its holding 
could not be applied mechanically and that circumstances 
in which a substantial federal interest was presented would



8

compel federal courts to act. 319 U. S. at 164. Moreover, 
an injunction against enforcement of the ordinance in­
volved there was unnecessary because, in parallel litigation, 
the Supreme Court had already adjudicated that the ordi­
nance was unconstitutional. Murdoch v. Commonwealth of 
Pennsylvania, 319 U. S. 105.

The District Court, in denying relief, failed we submit to 
give adequate recognition to the paramount federal inter­
est embodied in 42 U. S. C. §1983, and invoked here. The 
Court failed to recognize that Douglas v. Jeannette does not 
require Negroes to pursue a tortuous path through unsym­
pathetic state courts in order to vindicate clear constitu­
tional guarantees.

As Judge Rives, of this Court, said in dissent in Bailey 
v. Patterson, 199 F. Supp. 595, 616 (S. D. Miss. 1961), 
rev’d 369 U. S. 31:

An exception to Jeannette has developed in favor of 
class actions on behalf of Negroes combating state sup­
ported segregation . . . Actually this is not so much an 
exception as a practical application of the Jeannette 
requirement of “adequacy.” For the alternative to this 
suit [suit to enjoin enforcement of Mississippi “ peace 
statutes” and statutes requiring racial segregation on 
common carriers] is that a great number of individual 
Negroes would have to raise and protect their constitu­
tional rights through the myriad procedure of local 
police courts, county courts and state appellate courts 
with little prospect of relief1 before they reach the 
United States Supreme Court.

1 The prospect of relief here is illustrated by the concurrence 
of the Circuit Court of DeKalb County in Attorney General 
Flowers’ assertion that “ ‘Freedom Walks’ are not bona fide ac­
tivities . . . and [constitute] a breach of the peace” (R. 26).



9

Cases decided by this and other courts support the propo­
sition that notions of comity should not be permitted to 
subvert the high Federal purposes of Section 19832 and 
that comity “has no application where the plaintiffs com­
plain that they are being deprived of constitutional civil 
rights, for the protection of which the Federal Courts have 
a responsibility as heavy as that which rests on the State 
Courts.” Browder v. Gayle, 142 F. Supp. 707, 713 (M. D. 
Ala. 1956), affirmed 352 U. S. 903.

This Court has seen in Browder v. Gayle, 142 F. Supp. 
707 (M. D. Ala. 1956), affirmed 352 U. S. 903, a rejection

2 The purposes of Section 1983 were recently reviewed in McNeese 
v. Board of Education, 373 U. S. 668, and found to be the fol­
lowing: to override certain kinds of state laws; to provide a 
remedy where state law was inadequate; to provide a federal 
remedy where the state remedy, though adequate in theory, was 
not available in practice; and to provide a remedy in the federal 
courts supplementary to any remedy any state might have.

In holding that exhaustion of state remedies was not a pre­
requisite to maintaining a suit under Section 1983 to eradicate 
segregation in the public schools, the Court said:

We would defeat those purposes if we held that assertion of 
a federal claim in a federal court must await an attempt to 
vindicate the same claim in a state court. 373 U. S. at 672.

Mr. Justice Frankfurter, in his separate opinion in Monroe v. 
Pape, 365 U. S. 167, saw Section 1983 as being intended by the 
Congress which enacted the original sections (R. S. §1979 and 
Section 1 of the Ku Klux Act of April 20, 1871) to grant a sub­
stantive right to the exercise of federal jurisdiction:

. . .  the theory that the Reconstruction Congress could not have 
meant §1979 principally as a ‘jurisdictional’ provision grant­
ing access to an original federal forum in lieu of the slower, 
more costly, more hazardous route of federal appeal from 
fact-finding state courts, forgets how important providing a 
federal trial court was among the several purposes of the 
Ku Klux Act.
. . . Section 1979 does create a ‘substantive’ right to relief, 
but this does not negative the fact that a powerful impulse 
behind the creation of this ‘substantive’ right was the purpose 
that it be available in, and be shaped through original federal 
tribunals. 365 U. S. at 251-252.



10

of the application of comity to cases arising under 42 
U. S. C. §1983. In Morrison v. Davis, 252 F. 2d 102, 103 
(5th Cir. 1958), this Court said, in enjoining enforcement 
of state penal statutes requiring segregation in transporta­
tion facilities:

That case [Browder v. Gayle] disposes of the contention 
that the federal court should not grant an injunction 
against the application or enforcement of a state stat­
ute, the violation of which carries criminal sanctions. 
This is not such a case as requires the withholding of 
federal court action for reason of comity, since for the 
protection of civil rights of the kind asserted Congress 
has created a separate and distinct federal cause of 
action. 42 U. S. C. A. §1983. Whatever may be the rule 
as to other threatened prosecutions, the Supreme Court 
in a case presenting an identical factual issue affirmed 
the judgment of the trial court in the Browder case in 
which the same contention was advanced. To the ex­
tent that this is inconsistent with Douglas v. City of 
Jeannette, Pa., 319 U. S. 157, 63 S. Ct. 877, 87 L. Ed. 
1324, we must consider the earlier case modified.

United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), 
cert, denied 369 U. S. 850, was a suit by the Federal Gov­
ernment for injunctive relief against the prosecution of a 
Negro for breach of the peace. The Government contended 
that the State prosecution was designed to and would intimi­
date qualified Negroes from attempting to register to vote. 
The United States District Court for the Southern District 
of Mississippi denied relief, relying on Douglas v. Jeannette, 
319 U. S. 157. This Court reversed, holding Douglas v. 
J eannette inapplicable to a suit brought by the government 
under 42 U. S. C. A. §1971, and relying upon Morrison v. 
Davis, 252 F. 2d 102 (5th Cir. 1958), cer. denied 356 U. S. 
968.



11

Bush v. Orleans Parish School Board, 194 F. Supp. 182 
(E. D. La, 1961), affirmed 368 U. S. 11, was a suit to en­
join enforcement of Louisiana statutes punishing the newly 
created crime of giving or receiving anything of value as an 
inducement to sending one’s child to a school operated in 
violation of the law of Louisiana, i.e., an integrated school. 
Louisiana’s Attorney General admitted to the Court that 
the statutes were probably void for vagueness but insisted 
that the proper test of the statutes should come in the state 
court, after an accused had been arrested, held and charged 
under the statutes. To this the Court replied:

True, “ it is a familiar rule that courts of equity do 
not ordinarily restrain criminal prosecutions.” Doug­
las v. City of Jeannette, 319 U. S. 157, 163, 63 S. Ct. 
877, 881, 87 L. Ed. 1324. And this principle has special 
force when application is made to a federal court to 
enjoin the enforcement of state criminal statutes, for 
then considerations of comity add their weight to sug­
gest abstention. Beal v. Missouri Pacific R. Co., 312 
U. S. 45, 49-50, 61 S. Ct. 418, 85 L. Ed. 2d 1152. But 
the rule cannot be applied mechanically. N. A. A. C. P. 
v. Bennett, 360 U. S. 471, 79 S. Ct. 1192, 3 L. Ed. 2d 
1375; cf. Doud v. Hodge, 350 LT. S. 485, 76 S. Ct. 491, 
compel a federal court to act, Truax v. Raich, 239 U. S. 
33, 36 S. Ct. 7, 60 L. Ed. 131; Pierce v. Society of 
Sisters, 268 IT. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070; 
Hague v. Committee Industrial Organization, 307 IT. S. 
496, 59 S. Ct. 954, 83 L. Ed. 1423; see Terrace v. Thomp­
son, 263 U. S. 197, 214, 44 S. Ct. 15, 68 L. Ed. 255; 
Packard v. Banton, 264 IT. S. 140, 143, 44 8. Ct. 257, 
68 L. Ed. 596; Spielman Motor Co. v. Dodge, 295 U. S. 
89, 95, 55 S. Ct. 678, 79 L. Ed. 1322; Beal v. Missouri 
Pacific R. Co., supra, at page 50, 61 S. Ct. 418; Douglas 
v. City of Jeannette, supra, at page 163, 63 S. Ct. 882;



12

Denton v. City of Carrollton, Georgia, 5 Cir., 235 F. 2d 
481, 484-485. This is such a case.

Recently this Court, in Anderson v. City of Albany (5th 
Cir. July 26, 1963), reversed the dismissal of a complaint 
asking an injunction against the enforcement of certain 
segregation practices. In addition, this Court held that 
upon the record the trial court was without discretion to 
deny the injunction sought and, therefore, this Court di­
rected that, upon remand, an injunction issue substantially 
as prayed for. This Court commanded that enforcement of 
segregation, either directly through the attacked city ordi­
nances or indirectly through breach of the peace prosecu­
tions, be enjoined by the trial court.

These cases indicate that federal courts will not, and 
should not, forebear to enjoin threatened state prosecu­
tions when clear Fourteenth Amendment rights are put in 
jeopardy. One should not be required to subject himself to 
arrest and prosecution in order to vindicate his clear con­
stitutional rights. Evers v. Divyer, 358 U. S. 202, 204; 
Baldwin v. Morgan, 251 F. 2d 780, 787 (5th Cir. 1958).

Moreover, it may be demonstrated that the entire de­
velopment of constitutional jurisprudence has eschewed 
federal abstention of various sorts which ordinarily would 
apply.

For example, 28 U. S. C. §2281 provides for additional 
protection when a litigant seeks to enjoin enforcement of 
a state policy in the federal courts. Three judges must sit 
and determine such a cause. But when Fourteenth Amend­
ment rights of the type involved here are at issue and the 
outcome is obvious, only one judge need sit. Bailey v. Pat­
terson, 369 U. 8. 31; Turner v. Memphis, 369 U. S. 350. 
It should be noted that Bailey v. Patterson is very much



13

in point because in that case a “Freedom Ride” was being- 
conducted for much the same purpose as the “Freedom 
Walk” in this suit.

Moreover, federal courts often will defer to the state 
judiciary when the construction of a state statute is in­
volved and construction of that statute will save the fed­
eral judiciary from having to decide a constitutional ques­
tion. Harrison v. NAACP, 360 U. S. 167. But where the 
meaning of the statute is obvious and but one result can 
be foreseen, the federal courts will hear and determine the 
issue. McNeese v. Board of Education, 373 U. S. 668.

Another example of federal abstention which might ordi­
narily be applied is the policy which restrains federal courts 
from enjoining state legislatures. Yet this has been done 
when clear constitutional rights have been infringed. Jor­
dan v. Hutcheson, 4th Cir., September, 1963; Bush v. Or­
leans Parish School Board, 191 F. Supp. 871 (E. D. La. 
1961), affirmed sub nom. Legislature of Louisiana v. United 
States, 367 U. S. 908, and cases cited.

Perhaps the best-defined stricture against federal inter­
ference with state government is that embodied in 28 
U. S. C. §2283. That section inhibits federal courts from 
granting injunctive relief against state court proceedings. 
Yet such relief has been granted when a paramount federal 
interest was demonstrated. Julian v. Central Trust Co., 
193 U. S. 93; Looney v. Eastern Texas R. Co., 247 U. S. 214.

This Court has held Section 2283 to be no bar to an 
action by a labor organizer and his union to enjoin a 
municipality from instituting criminal proceedings under 
an ordinance requiring any person engaged in the occupa­
tion of labor union agent to pay an exorbitant tax. In the 
case of Denton v. City of Carrollton, Georgia, 235 F. 2d 
481 (5th Cir. 1956), this Court reversed the district court’s



14

refusal to grant an injunction. To the district court’s as­
sertion that the case was wanting in equity under the prin­
ciples of Douglas v. Jeannette, this Court replied:

But this wholesome rule envisages itself the neces­
sity, under circumstances of genuine and irretrievable 
damage, for affording equitable relief even though the 
result is to forbid criminal prosecution or other legal 
proceedings (235 F. 2d at 485).

The other cases relied upon by Judge Johnson, Stefanelli 
v. Minard, 342 U. S. 117, and Cleary v. Bolger, 371 U. S. 
392, are inapposite. The ratio decidendi of both cases was 
the federal policy against piecemeal review.

Both Cleary and Stefanelli involved questions concerning 
the validity of the introduction of evidence in a state court 
proceeding. The federal court determination in Cleary or 
Stefanelli would not have arrested the state court proceed­
ings, since the federal court was only to rule on a collateral 
issue. The state court would have continued with the trial 
following a ruling on the evidentiary question. Some jus­
tification existed, then, for the fear of conflict between 
state and federal courts and an “ intrusion of the federal 
courts in the administration of the criminal law.” Stefanelli 
v. Minard, 342 U. S. 117, 120. The danger of piecemeal 
review was thus described in Stefanelli:

[W]e would expose every state criminal prosecution 
to insupportable disruption. Every question of pro­
cedural due process of law—with its far-flung and un­
defined range—would invite a flanking movement 
against the system of state courts by resort to the 
federal forum, with review if need be to this court, 
to determine the issue. Asserted unconstitutionality 
in the impaneling and selection of the grand and 
petit juries, in the failure to appoint counsel, in the



15

admission of a confession, in the creation of an unfair 
trial atmosphere, in the misconduct of the trial court 
■—all would provide ready opportunities, which con­
scientious counsel might be bound to employ, to sub­
vert the orderly, effective prosecution of local crime 
in local courts (342 U. S. at 123-124).

Moreover, the decision in Stefanelli, it is submitted, was 
controlled by the doctrine of Wolf v. Colorado, 338 U. S. 25. 
Justices Warren and Brennan made this point in their 
dissent in Cleary:

In invoking the bogey of federal disruption of state 
criminal processes, the court relies heavily on Stefa­
nelli, where it was held to be improper to enjoin the 
introduction in a state criminal trial of evidence seized 
by state officers in violation of the Fourteenth Amend­
ment. But Stefanelli is manifestly inapt. That deci­
sion was compelled by Wolf v. Colorado . . . where the 
Court, while confirming that the Fourth Amendment 
had been absorbed into the Due Process Clause of the 
Fourteenth Amendment, nevertheless left the states 
free to devise appropriate remedies for violations of 
this constitutional protection. To have authorized the 
Federal District Courts to order the exclusion in state 
criminal trials of evidence unlawfully obtained by state 
officials would have sanctioned accomplishing indirectly 
what Wolf forbade directly (371 U. S. at 411).

Again, in Cleary the Court was obviously concerned with 
the danger of piecemeal litigation due to the federal courts’ 
determination of collateral issues incident to a state court 
criminal proceeding. Justice Harlan, writing the majority 
in Cleary, stated:



16

To permit such claims to be litigated collaterally, as 
is sought here, would in effect frustrate the deep- 
seated federal policy against piecemeal review (371 
IT. S. at 401).

Thus Stefanelli and Cleary are no precedent for the 
withholding of federal relief in a case such as this, where 
complete and speedy justice can be effected in the federal 
forum.

Finally, it should be noted that the Supreme Court on 
numerous occasions has been willing to uphold injunctive 
relief to support property rights. Often quoted is the fol­
lowing passage from Terrace v. Thompson, 263 U. S. 197, 
214-216:

The unconstitutionality of a state law is not of itself, 
ground for equitable relief in the courts of the United 
States. That a suit in equity does not lie where there 
is a plain, adequate and complete remedy at law 
is so well understood as not to require the citation 
of authorities. But the legal remedy must be as com­
plete, practical, and efficient as that which equity could 
afford. . . . Equity jurisdiction will be exercised to 
enjoin the threatened enforcement of a state law which 
contravenes the Federal Constitution wherever it is 
essential, in order effectually to protect property rights 
and the rights of persons against injuries otherwise ir­
remediable; and in such a case a person who, as an 
officer of the state, is clothed with the duty of enforc­
ing its laws, and who threatens and is about to com­
mence proceedings, either civil or criminal, to enforce 
such a law against parties affected, may be enjoined 
from such action by a federal court of equity. . . . 
[Appellants] are not obliged to take the risk of prose­
cution, fines, and imprisonment and loss of property



17

in order to secure an adjudication of their rights. The 
complaint presents a case in which the equitable relief 
may be had, if the law complained of is shown to be 
in contradiction of the Federal Constitution.

First Amendment rights should receive no less protection.
See Marsh v. Alabama, 326 U. S. 501, 509.

CONCLUSION

For the foregoing reasons, the order of the court be­
low dismissing appellants’ complaint should be reversed 
and the cause remanded to that court for further pro­
ceedings.

Respectfully submitted,

F eed  D . G ra y
34 North Perry Street 
Montgomery, Alabama

J a c k  G reen berg  
C o n sta n c e  B a k e r  M o tle y  
D e r r ic k  A. B e l l , J r . 
N o r m a n  C. A m a k er 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



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