Davis v. Francois Brief for Appellees

    IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 25,562

Hall Davis, et al.,
Appellants,

v.

J ohn G. F rancois, et al.,
Appellees.

Appeal from the United States District Court 
For The Eastern District of Louisiana

BRIEF FOR APPELLEES

JACK P. F. GREMILLION, 
Attorney General,
State of Louisiana.

THOMAS W. McFERRIN, 
Assistant Attorney General.

KENNETH C. DeJEAN, 
Special Counsel to 
Attorney General.



IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 25,562

Hall Davis, et al.,
Appellants,

V.
J ohn G. F rancois, et al.,

Appellees.

Appeal from the United States District Court 
For The Eastern District of Louisiana

BRIEF FOR APPELLEES

ARGUMENT
Appellants herein have demanded that this Hon­

orable Court reverse the judgment of the lower court 
on the inserted grounds that the Ordinance complained 
of, being Ordinance No. 11 of the City of Port Allen, 
is “overbroad on its face”, which contention arises 
from the case of Zwickler v. Koota, 88 S.Ct. 391, 19
L.ed.2d 444,---------- U.S._______ , chiefly depended
upon to support the position of said appellants. In this 
regard it is interesting to note Mr. Justice Harlan’s 
concurring opinion, 88 S.Ct. 400 stating:

“If, however, the opinion of the court is in­
tended to suggest that the central, or even a prin­
cipal, issue in deciding the propriety of abstention 
is whether the complaint has alleged ‘overbreadth’



2

or only ‘vagueness’ . . . with respect to the . . . 
statute in question, I cannot agree. My reasons 
are three. First, neither principle has ever been 
definitively delimited by this Court; a doctrine 
built upon their supposed differences would be 
likely to founder for lack of a foundation. See 
generally, Note, The Void-for-Vagueness Doc­
trine in the Supreme Court, 109 U.Pa.L.Rev. 67. 
Second, there is no reason to suppose that a case 
involving allegations of overbreadth would in­
evitably be inappropriate for abstention; the fed­
eral court might nonetheless reasonably consider 
that its exercise of jurisdiction would create 
‘needless friction’ with state officials, Louisiana 
P. & L. Co. v. Thibodaux City, supra, 360 U.S., 
at 33, 79 S.Ct., at 1075, or it might reasonably 
conclude that a state court determination would 
present the federal issues ‘in a different posture.’ 
Allegheny County v. Frank Mashuda Co., supra, 
360 U.S., at 189, 79 S.Ct., at 1063. Third, such a 
standard might in effect reduce the abstention 
doctrine to a pleader’s option; the fundamental 
interests served by the doctrine would be jetti­
soned whenever a complainant had sufficient fore­
sight to insert into his pleading an allegation of 
overbreadth. I can see no proper alternative to a 
careful examination, in light of the interests 
served by abstention, of the circumstances of each 
ease.”

Traditional Abstention
It has been a long-standing rule of the Federal 

Courts not to interfere with state courts dealing with 
State Law in criminal prosecution cases especially 
when the criminal case has already been initiated. This



rule has been upheld and restated in eases too numer­
ous to cite.

Should this court acquiesce in Appellants’ desires, 
it would be ruling contra to the very jurisprudence 
created over many years by the Federal Court itself 
and would be opening the door for defendants in all 
types of criminal prosecutions to escape state justice 
through merely creating and alleging a federal ques­
tion in a federal forum.

The general rule is that equity will not interfere 
to prevent the enforcement of a criminal statute even 
though alleged to be unconstitutional. It was expressed 
in the cases of Spiehnan Motor Sales Co. v. Dodge, 295 
U.S. 89, 55 S.Ct. 678, and again in the case of Douglas 
v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, where­
in the court said at 319 U.S. 163:

“No person is immune from prosecution in good 
faith for his alleged criminal acts. Its imminence, 
even though alleged to be in violation of constitu­
tional guaranties, is not a ground for equity re­
lief since the lawfulness or constitutionality of 
the statute or ordinance on which the prosecution 
is based may be determined as readily in the crim­
inal case as in a suit for an injunction.” (empha­
sis supplied).

In Douglas also, the United States Supreme Court 
stated:

“Congress, by its legislation, has adopted the poli­
cy, with certain well defined statutory exceptions, 
of leaving generally to the state courts the trial of 
criminal cases arising under state laws, subject to



4

review by this court of any federal questions in­
volved. Hence, courts of equity in the exercise of 
their discretionary powers should conform to this 
policy by refusing to interfere with or embarrass 
threatened proceedings in state courts save in 
those exceptional cases which call for the inter­
position of a court of equity to prevent irrepar­
able injury which is clear and imminent; and 
equitable remedies infringing this independence 
of the states—though they might otherwise be 
given—should be withheld if sought on slight or 
inconsequential grounds.”
The United States Supreme Court in the case of 

Beal v. Missouri Pac. R. R. Corporation, 312 U.S. 45, 
61 S.Ct. 418 stated, after expressing the above rule, 
that:

“This is especially the case where the only threat­
ened action is the prosecution in the state courts 
by state officers of an alleged violation of state 
law, with the resulting final and authoritative 
determination of the disputed question whether 
the act complained of is lawful or unlawful. 
Harkrader v. Wadley, 172 U.S. 148, 19 S.Ct. 119, 
43 L.Ed. 399; Spielman Motor Co. v. Dodge, 295 
U.S. 89, 95, 55 S.Ct. 678, 680, 79 L.Ed. 1322. The 
federal courts are without jurisdiction to try al­
leged criminal violations of state statutes. The 
state courts are the final arbiters of their mean­
ing and appropriate application, subject only to 
review by this Court if such construction or appli­
cation is appropriately challenged on constitution­
al grounds. Hygrade Provision Co. v. Sherman, 
supra; Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 
492, 70 L.Ed. 927.”



5

We would draw the Court’s attention to 28 U.S.C. 
2283 which provides:

“A Court of the United States may not grant an 
injunction to stay proceedings in a State Court 
except as expressly authorized by Act of Congress 
or where necessary in aid of its jurisdiction; or 
to protect or effectuate its judgments.”
This statute is an express declaration by Congress 

of the principles that a State Court proceedings should 
not be interfered with once those proceedings have 
begun. In the case of Kelley, et at v. Wallace, 257 F. 
Supp. 343, the Court stated:

“Plaintiffs’ argument that this case is controlled 
by Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct, 
1116, 14 L.Ed.2d 22 (1965), is not persuasive. In 
Dombrowski, ‘proceedings’ had not yet commenced 
in the state court within the meaning of §2283; 
they were only threatened. In this connection, this 
Court declines to find that §1983 is an express ex­
ception to §2283. See Baines v. City of Danville, 
337 F.2d 579 (4th Cir. 1964). Nor are there ex­
traordinary circumstances in the case now pre­
sented that will justify or require this Court’s 
not following the congressional mandate as set 
out in §2283 . . .  In the present case, the State 
of Alabama provides a satisfactory procedure by 
which these plaintiffs may challenge the constitu­
tionality of the statute involved.”

It is worthy to note that in Zwickler v. Koota and 
Dombrowski v. Pfister, herein depended upon by appel­
lants, there were no criminal actions pending against



6

the defendants in the state courts at the time of the 
action in federal court.

A look at the Dombrowski case, Dombrowski v. 
Pfister, 380 U.S. 499, 85 S.Ct. 1116, shows that it in­
volved what the court determined to be an overly broad 
statute regulating expression, and involved threats of 
multiple prosecutions. The present situation does not 
fit within the exceptions contained in Dombrowski and 
appellants will be given no greater assurance of the 
vindications of their constitutional rights than they 
would if pursued in the criminal case in the City of 
Port Allen.

Of importance is the following language in the 
Dombrowski case, cited supra:

“Headnote No. 13, Injunction 105(1):
“Where no readily apparent construction of stat­
ute suggests itself as vehicle for rehabilitating 
statute in single 'prosecution, parties who claim 
irreparable injury will result as a result of en­
forcement of such statute are entitled to injunc­
tion.” (emphasis ours).

Declaratory Judgment
In the case of Maryland Casualty Co. v. Pacific 

Coal and Oil Co., 312 U.S. 270, 61 S.Ct. 310, the 
United States Supreme Court set forth the rule by 
which a determination could be made as to whether a 
declaratory judgment should be granted or not. It 
said:

“The difference between an abstract question and 
a ‘controversy’ contemplated by the Declaratory 
Judgment Act is necessarily one of degree, and it



7

would be difficult, if it would be possible, to fash­
ion a precise test for determining in every case 
whether there is such a controversy. Basically, 
the question in each case is whether the facts al­
leged, under all the circumstances, show that 
there is a substantial controversy, between parties 
having adverse legal interests, of sufficient imme­
diacy and reality to warrant the issuance of a de­
claratory judgment.” (Emphasis ours).
In fact, the Supreme Court has, in the case of 

Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 
293, 63 S.Ct. 1070, even after acknowledging jurisdic­
tion, refused to render a declaratory judgment against 
a state officer to prevent enforcement of a state stat­
ute on the grounds that it was a Louisiana tax matter 
and there was adequate remedy in the state courts 
from which the cause might be brought to the United 
States Supreme Court for review if any federal ques­
tions were involved.

Turning once again to Zwickler v. Koota, cited 
supra, we find the following language, 88 S.Ct. 397 as 
the Court quotes Livingston v. United States, 364 U.S. 
281, 80 S.Ct. 1611:

“Regard for the interest and sovereignty of the 
state and reluctance needlessly to adjudicate con­
stitutional issues may require a federal district 
court to abstain from adjudication if the parties 
may avail themselves of an appropriate procedure 
to obtain state interpretation of state laws requir­
ing construction.”
However, the court held in Zwickler that:
“. . . [A] request for a declaratory judgment



that a state statute is overbroad on its face must 
be considered independently of any request for 
injunctive relief against the enforcement of that 
statute. We hold that a Federal District Court 
has the duty to decide the appropriateness and 
the merits of the declaratory request . . (Em­
phasis ours).
The ordinance in question states:
“Section I. It shall be unlawful for more than two 
(2) people to picket on private property or on the 
streets and sidewalks of the City of Port Allen in 
front of a residence, a place of business, or public 
building. Said two (2) pickets must stay five (5) 
feet apart at all times and not obstruct the en­
trance of any residence, place of business, or pub­
lic building by individuals or by automobiles.”
“Section II. Any person who violates the provi­
sions of this ordinance shall be subject to a fine 
not exceeding $100.00 or imprisonment for a pe­
riod not to exceed 30 days, or both. (R.4.).”
This Ordinance No. 11 of the small town of Port 

Allen does not deprive appellants of freedom of expres­
sion or of their constitutional rights. An allegation 
that it is overbroad on its face will not stand since 
appellants rights, as they desire them, to picket and 
express themselves are not denied. In this limited area 
of Port Allen, local authorities have a right to control 
for the public good and convenience matters of this 
nature. Cox, el al v. State of New Hampshire, 312 U.S. 
569, 61 S.Ct. 762; Cox v. Slate of Louisiana, 379 U.S. 
553, 85 S.Ct. 453.

The term “overbroad” as used in this case, of



9

necessity, has to be a question of degree under the cir­
cumstances. That which may be “overbroad” in one 
circumstance may not be in another.

The Ordinance here dealt with surely cannot be 
stated as overbroad on its face as it does not prohibit 
all picketing in all places, under all circumstances, nor 
does it prohibit freedom of expression. To say that 
without specific concrete reasons being stated, a mere 
allegation of unconstitutionality because of “over­
broadness” is sufficient to remove a criminal case 
from state court, without the ordinance being so on its 
face, is to say that almost every criminal action in 
state courts may be disrupted in this manner. Surely 
this was not intended.

To quote the learned Judge of the District Court, 
who after receiving evidence of fact and law, ruled:

“Certainly the ordinance is not unconstitutional 
on its face and certainly the ordinance on its face 
does not evidence bad faith. Its validity, and the 
question of the good or bad faith of its enactors, 
could be just as well and certainly more properly 
determined in a state criminal proceeding than in 
a proceeding in equity before this Court. Consid­
erations of our Federalism demand this conclu­
sion.
“Unlike the situation in Dombrowski, plaintiffs’ 
First Amendment rights are not being denied 
them during the time this ordinance is in effect. 
Their right of freedom of expression is not de­
nied by the ordinance. . . .”



10

CONCLUSIONS

Federal Courts should not interfere with State 
Criminal Court prosecutions of State law, already ini­
tiated, except for special circumstances such as dis­
played in Dombrowski, not applicable here.

The case, herein, does not meet the criterion neces­
sary for a declaratory judgment which is required, 
even under Zwickler, namely, that under all circum­
stances, there is shown a substantial controversy, be­
tween parties having adverse legal interests, of suffi­
cient immediacy and reality to warrant issuance of 
same. Appellants’ right of freedom of expression is not 
denied by the Ordinance.

The Ordinance in question, as required by Zwick­
ler, is not unconstitutional on its face as it permits not 
only picketing in this small town but also freedom of 
expression.

WHEREFORE, for the foregoing reasons, Appel­
lees pray that the Judgment below be sustained.

Respectfully Submitted:
JACK P. F. GREMILLION, 

Attorney General,
State of Louisiana.

THOMAS W. McFERRIN, 
Assistant Attorney General.

KENNETH C. DeJEAN,
Special Counsel to 
Attorney General.

B y:_______________________



11

CERTIFICATE

I hereby certify that copies of the Brief of Appel­
lees have been served on the attorneys for appellants 
by mailing the same to Jack Greenberg, Charles Ste­
phen Ralston and Melvyn Zarr of 10 Columbus Circle, 
New York, New York 10019; Murphy Bell of 971 S. 
18th Street, Baton Rouge, Louisiana; Lolis E. Elie 
of the firm of Collins, Douglas and Elie, 2211 Dryades 
Street, New Orleans, Louisiana, 70113, by United 
States Mail, postage prepaid.

Baton Rouge, Louisiana, th is___ day o f______
1968.

OF COUNSEL

B-1281, 2-68