Walker v. City of Birmingham Supplemental Brief for Respondent

    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,

vs.
CITY OF BIRMINGHAM, a Municipal Corporation of the 

State of Alabama,
Respondent.

On Writ of Certiorari to the Supreme Court of Alabama.

SUPPLEMENTAL BRIEF FOR RESPONDENT.

J. M. BRECKENRIDGE,
EARL McBEE,
WILLIAM C. WALKER,

All at 600 City Hall, 
Birmingham, Alabama 35203, 

Attorneys for Respondent.

St. L ouis L aw  Pbinting Co., Inc., 411-15 N. Eighth St., 63101. CEntral 1-4477.



TABLE OF OASES.

Page

Fields v. City of Fairfield, 273 Ala. 588, 143 So.
(2d) 177 ............................................................   1,2,3

Howat v. Kansas, 258 U. S. 181, 42 S. Ct. 277, 66 
L. Ed. 550 ........................................................................  2,4

McLeod v. Majors, 5th Cir., 102 F. 2d 128 .................. 2

People v. Bouchard, 6 Misc. 459, 27 N. Y. S. 201 . . . .  2
Pure Milk Ass’n v. Wagner, 363 111. 316, 2 N. E. 2d 

288 ........................................................................ .. 2
United States v. United Mine Workers of America,

330 U. S. 258, 67 S. Ct. 677 .....................................2,3,4



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM , 1966.

No. 249.

WYATT T EE 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.

On Writ of Certiorari to the Supreme Court of Alabama.

SUPPLEMENTAL BRIEF FOR RESPONDENT.

With leave of the Court, this supplemental brief is filed, 
addressed to the point argued on behalf of petitioners 
that the Alabama Supreme Court, in the case of Fields 
v. City of Fairfield, 273 Ala. 588, 143 So. (2d) 177, in the



use of the expression, “ This argument is based upon the 
principle that the ordinance of the City of Fairfield is 
unconstitutional. We cannot say that it is unconstitu­
tional on its face” , intended to depart from the doctrine 
that the constitutionality of an ordinance cannot he raised 
in a collateral contempt proceeding for the violation of 
an injunction based upon such allegedly unconstitutional 
ordinance, but must necessarily be raised by proper pro­
ceeding in the main injunction suit. It will be observed 
that the only comment concerning the constitutionality 
of the ordinance is that above quoted. From then on 
the opinion deals exclusively with the elaboration of the 
rule that an injunction cannot be disobeyed with immunity 
from criminal contempt penalty unless the order dis­
obeyed was void. Numerous cases are cited by the Ala­
bama Supreme Court to this effect. These cases include 
United States v. United Mine Workers of America, 330 
U. S. 258, 67 S. Ct. 677; Howat v. Kansas, 258 U. S. 181, 
42 S. Ct. 277, 66 L. Ed. 550; People v. Bouchard, 6 Misc. 
459, 27 N. Y. S. 201; McLeod v. Majors, 5th Cir., 102 F. 
2d 128; Pure Milk Ass’n v. Wagner, 363 111. 316, 2 N. E. 
2d 288. The opinion then quotes at length from the United 
Mine Workers case.

The closing sentence of the opinion is “ Under these 
authorities, petitioners were guilty of contempt, as they 
chose to disregard the temporary injunction rather than 
contesting it by orderly and proper proceedings.”

When the Fields case was pending before this Honor­
able Court an amicus brief was filed on behalf of the 
NAACP Legal Defense and Educational Fund, Inc., coun­
sel for which is Mr. Jack Greenberg and Mr. James M. 
Nabrit, III, whose names are signed to such brief, to­
gether with Shirley Fingerhood, Of Counsel. We find 
in this brief no contention that the Supreme Court of 
Alabama in the Fields case had undertaken an authorita­

—  2 —



3

tive decision on the constitutionality of the City of Fair- 
field ordinance in question, but obviously it was assumed 
that the holding of the Alabama Court was rested upon 
the United Mine Workers case. On page 7 of the brief, 
the following language is used:

“ As authority for its position that the question 
of constitutionality of a judicial order may not be 
adjudicated on an appeal from a judgment of convic­
tion for contempt, the court below relied on United 
States v. United Mine Workers of America, 330 U. S. 
258.”

It is also of interest that the Solicitor General filed 
an amicus brief in the Fields case. This brief also as­
sumes that the Supreme Court of Alabama did not au­
thoritatively deal with the question of the constitutionality 
of the ordinance in question. On page 11 of his amicus 
brief, we find the following:

“ On the question of the constitutionality of the 
ordinance requiring a permit for the conduct of a 
public meeting, the court remarked, ‘ (w)e cannot say 
that it is unconstitutional on its face’ (R, 88), but 
held that, in any event, the validity of the ordinance 
could not be tested by disobedience of the restraining 
order. It concluded that ‘ petitioners were guilty of 
contempt, as they chose to disregard the temporary 
injunction rather than contesting it by orderly and 
proper proceedings’ (R. 90).”

A consideration of the two briefs above mentioned leads 
to the clear conclusion that both the Solicitor General 
and Counsel for petitioners were, at the time that the 
Fields case was pending in this Honorable Court, of the 
opinion that the Supreme Court of Alabama relied upon 
United Mine Workers case and did not establish a rule 
of law in Alabama permitting the constitutionality of an



ordinance to be tested in a collateral contempt proceed­
ing.

In tbe instant case, the Supreme Court of Alabama 
adhered to its previous rulings to the effect that the only 
issue, absent any question of procedural defects, was to 
determine the jurisdiction of the Court as an Equity 
Court to issue an injunction and the jurisdiction of such 
Court over the parties involved and the question of 
whether or not the injunction was violated. In this regard 
the Supreme Court of Alabama said in effect the injunc­
tion had been violated in the Friday and Sunday parades, 
the first of which was apparently scheduled to proceed 
over major public streets for about one-half mile to City 
Hall (R. 146, top of page); and as to the second, police 
officials had been informed the Sunday parade was to 
traverse and cross major arteries for about two miles 
to City Jail (R. 149, middle of page). The point was 
made that these parades were made without a permit 
as required by the ordinance and in defiance and in vio­
lation of the restraining order, without prior effort being 
made by petitioners to dissolve or discharge it. We quote 
the following from the Alabama Supreme Court decision: 

“ It is to be remembered that petitioners are charged 
with violating a temporary injunction. We are not 
reviewing a denial of a motion to dissolve or dis­
charge a temporary (fol. 516) injunction. Petitioners 
did not file any motion to vacate the temporary in­
junction until after the Friday and Sunday parades. 
Instead, petitioners deliberately defied the order of 
the court and did engage in and incite others to en­
gage in mass street parades without a permit”  (R. 
440).

The Alabama Supreme Court relied upon the rule of 
Howat v. Kansas, and United States v. United Mine 
Workers, and quoted at great length from the latter case.

-—  4 —



5

We respectfully submit the Alabama Court has, with­
out exception, followed the Mine Workers doctrine from 
the time it was pronounced in 1947, as it did in the instant 
case.

Respectfully submitted,

J. M. BRECKENRIDGE,

EARL McBEE,

WILLIAM C. WALKER,
600 City Hall,

Birmingham, Alabama 35203, 
Attorneys for Respondent.



98