Davis v. Francois Brief for Appellees
Public Court Documents
January 1, 1968

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Brief Collection, LDF Court Filings. Davis v. Francois Brief for Appellees, 1968. bbf3e472-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/83991494-f38a-444b-ba8a-16f29205b9f2/davis-v-francois-brief-for-appellees. Accessed May 17, 2025.
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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