Maddox v. Willis, Jr. Motion to Affirm or Dismiss

    A

I n  the

ji>upn>mr ©mtrt nt il|? States
October Term, 1965 

No. 308

L ester G. M addox,
Appellant,

G eorge F. W illis , Jr., et al.,
Appellees.

MOTION TO AFFIRM OR DISMISS

.Jack  Greenberg 
J ames M. N abrit , III 
M ichael  M eltsner 
L eroy D . Clark

10 Columbus Circle 
New York, N. Y. 10019

W illiam  H. A lexander

859y2 Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Appellees



I N D E X
PAGE

Opinion B elow ......................................................... -..........  1

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

Statement of the Case ...................................................... 2

Seasons for Dismissal ---- ----------- ----—.... ..... ........... ....  4

Reasons for Affirming .........-.......... - ............................... 6

CONCLTJSIOH .................. -..................—.... -........... -.... -........  7

Table of Cases

Allen v. Prince Edward County, 249 P. 2d 462 (4th
Cir. 1957), cert, denied 355 U. S. 953 (1957) ............ 4

Atlanta Motel v. United States, 379 U. S. 241 ............. 4

Bailey v. Patterson, 369 U. S. 31 ....................................  4

Heart of Atlanta Motel, Inc. v. United States, 379 U. S.
241 ...... ...... ................... ............ .... -................................ - 6

Katzenbach v. McClung, 379 U. S. 294 ..........................  4, 6
Kesler v. Dept, of Public Safety, 369 U. S. 153........... 4

Stratton v. St. Louis Southwestern, 282 U. S. 1 0 ......... 5

Turner v. Memphis, 369 U. S. 350 ................................ -  4

Willis v. Pickrick Restaurant, 231 F. Supp. 396 (N. D.
Ga. 1964), stay denied 379 U. S. 241 ..........................  1

Willis v. Pickrick Restaurant, 234 F. Supp. 179 (N. D.
Ga. 1964) ..................................... ............... -...................  1



PAGE

Statutes

Civil Rights Act of 1964, Title II, §201(a) (b) (c) ........... 6
Civil Rights Act of 1964, Title II, §201 (b) (2), (c) .......  2

Civil Rights Act of 1964, Title II, §206 ..........................  4

P. L. 88-352 §206(1)) ............................................................ 4

15 U. S. C. §29 ....... ..... ....................................................  5

18 IT. S. C. 3731 ..........        5

28 IT. S. C. 1252 ............          5

28 IT. S. C. §1253 ..............................      4

47 IT. S. C. §401 (d) ..................        5

49 IT. S. C. §45 ..........               5

ii



In the

l§>upr?m£ &mtrt of United i>tati>s
October Term, 1965 

No. 308

L ester G. M addox,

- v . -

Appellant,

George F. W illis , J r ., et al.,
Appellees.

MOTION TO AFFIRM OR DISMISS

Appellees, pursuant to Rule 16 of the Revised Rules of 
the Supreme Court of the United States, move that the 
appeal be dismissed on the grounds that it is not within 
the jurisdiction of this Court, or, in the alternative, that 
the final judgment and decree of the District Court be 
affirmed on the ground that the question is so unsubstan­
tial as not to warrant further argument.

Opinion Below

The final judgment of civil contempt was entered on 
February 5, 1965, but is not yet officially reported. It, and 
a copy of the court’s findings of fact, conclusions of law, 
and order of civil contempt appear in appellant’s jurisdic­
tional statement (App. pp. 14-25). Prior opinions herein 
are reported in Willis v. Pickrick Restaurant, 231 F. Supp. 
396 (N. D. Ga. 1964), stay denied, 379 U. S. 241 and Willis 
v. Pickrick Restaurant, 234 F. Supp. 179 (N. D. Ga. 1964).



9Li

Questions Presented

1. Whether a final judgment of contempt ordered by a 
one-judge United States District Court may be directly 
appealed to the Supreme Court of the United States?

2. Whether a restaurant which affects commerce within 
the meaning of Title II Section 201(b)(2), and (c) of the 
Civil Rights Act of 1964 must serve members of the public 
without regard to race?

Statement of the Case

The United States District Court for the Northern Dis­
trict of Georgia, Atlanta Division, with a single judge sit­
ting, entered a final judgment of contempt against the 
appellant on February 5, 1965, for having violated a perma­
nent injunction entered by the then dissolved1 three-judge 
court on September 4, 1964. The permanent injunction 
ordered the appellant to cease refusing service in his res­
taurant to Negro persons solely on account of their race.

The appellant never appealed from the final judgment 
of the three-judge district court. Prior thereto, July 28, 
1964, however the appellant had filed notice of appeal from 
a temporary injunction issued in this case on July 23, 1964, 
to the Supreme Court of the United States. No Jurisdic­
tional Statement was filed and the appeal was abandoned.

August 11 and 13, 1964, Negro plaintiffs made unsuccess­
ful attempts to eat at the Pickrick, which was a corporation

1 The three-judge court ordered itself dissolved on September 4, 1964, 
after finding no statutory authority for convening such a court to hear 
civil contempt proceedings ancillary to suits prosecuted under the Civil 
Rights Act o f 1964. Further proceedings relating to the civil contempt 
were therefore ordered to be heard by the district court sitting with one 
judge.



3

and were informed by the appellant that the restaurant 
was closed as it later was. Subsequently, September 26, 
1964, on part of the premises formerly occupied by the 
Pick rick the appellant opened the Lester Maddox Cafeteria, 
owned by appellant alone. This change in method of oper­
ation was made with the intent and purpose of evading 
the injunctive orders of the court (R. 512). The following 
sign was posted in and about the Lester Maddox Cafeteria:

Notice: I do not offer to serve either (1st) integra- 
tionists, nor (2) interstate travelers, regardless of race, 
color, creed or national origin. A  person entering this 
restaurant for service will be considered as represent­
ing to me that such person is neither an integrationist 
nor an interstate traveler. If such representation is 
believed to be false, service will be refused. Lester 
Maddox, Owner, Lester Maddox Cafeteria.

September 26, 1964, and January 28 and 29, 1965, Negro 
plaintiffs attempted to enter the Lester Maddox Cafeteria 
for the purpose of eating and were excluded because of race 
(R. 519). The appellant in the course of refusing service, 
also assaulted them (Tr. of Feb. 1, 1965, 53, 54, 55).

Thereafter, on motion of the plaintiffs and the Attorney 
General of the United States, the appellant was ordered 
to show cause why he should not be held in civil contempt.

After a three-day hearing Judge Hooper found the 
appellant in contempt and set a penalty of $200.00 for 
each day of any future violations.



4

Reasons for Dismissal

This appeal is not within the jurisdiction of the United 
States Supreme Court. 28 U. S. 0. §1253, P. L, 88-352 
§206(b).

Under Title II, §206 of the Civil Rights Act of 1964, 
direct appeals to this Court are limited to those from three- 
judge courts. Section 206 must be read in the light of 
prior statutes governing three-judge courts. See, Katsen- 
bach v. McClung, 379 U. S. 294, where §1253 is cited as 
supporting a direct appeal of a case under the Act, and 
Atlanta Motel v. United States, 379 U. S. 241, where §2282 
is cited as supporting the empaneling of a three-judge 
court. Therefore, whether or not a three-judge court em­
paneled under §206 is to continue to sit is governed by 
decisions interpreting the statutes controlling the three- 
judge court. Under these decisions a three-judge court 
does not sit to resolve proceedings ancillary to the main 
action.2 Therefore, the dissolution of the three-judge court 
which issued the original injunction was proper. A  single 
judge was authorized to issue the order of contempt from 
which appellant now seeks to take an appeal.

2 Under the authority of Bailey v. Patterson, 369 U. S. 31, the three- 
judge requirement is to be narrowly construed, the three-judge court is 
not required where no substantial constitutional question is presented, and 
where such a special court is not required, the case cannot be directly 
appealed to the Supreme Court under <51253, even if a three-judge court 
is actually convened and hears the case. In Turner v. Memphis, 369 U. S. 
350, the existence of fictitious claims eliminated the necessity of the three- 
judge panel. Kesler v. Dept, of Public Safety, 369 U. S. 153, declares 
that the three-judge court is a technical device to be construed strictly. 
In Allen v. Prince Edward County, 249 F. 2d 462 (4th Cir. 1957), cert, 
den. 355 U. S. 953 (1957), the three-judge panel was, as in this Maddox 
situation, dissolved before the proceedings in controversy were before the 
court. The court there held in effect that proceedings ancillary to those 
requiring a three-judge court do not require such a court.



5

Appeals to this court are governed solely by statute and 
such appeals from a district court, sitting with a single 
judge are extremely limited and confined to:

1. A one-judge district court holding a federal statute 
unconstitutional (28 U. S. C. 1252);

2. Criminal cases, where a one-judge court has entered 
one of certain types of judgments adverse to the 
United States (Criminal Appeals Act, as amended 18 
U. S. C. 3731);

3. Where the United States brings a civil action to 
enforce antitrust laws, the Interstate Commerce Act, 
or Title II of the Federal Communications Act (15 
U. S. C. §29 and 49 U. S. C. §45, as amended by §17 of 
the Act of June 25, 1948, 62 Stat. 989; and 47 U. S. C. 
§401(d)) and a one-judge or three-judge court has 
entered judgment.

Obviously, this is not one of the above special situations. 
The case is therefore not appealable on its merits directly 
to the Supreme Court. In Stratton v. St. Louis Southwest­
ern, 282 U. S. 10, at 15-16, the following language is used:

If a single judge, thus acting without jurisdiction, 
undertakes to enter an order granting an interlocutory 
injunction or a final decree, either dismissing the bill 
on the merits or granting a permanent injunction, no 
appeal lies from such an order or decree to this court, 
as the statute plainly contemplates such a direct ap­
peal only in the case of an order or decree entered 
by a court composed of three judges in accordance 
with the statutory requirement.



6

Reasons for Affirming

Assuming arguendo that this Court does have jurisdic­
tion, the District Court’s final judgment of contempt should 
be affirmed.

The record is clear that the appellant violated the terms 
of the injunction by refusing to serve Negroes because of 
their race. Katsenbach v. McClung, 379 U. S. 294 makes 
it equally clear that he was obliged to serve them. McClung 
held that §201 (a) (b) (c) of the Civil Eights Act of 1964 
forbidding racial discrimination by restaurants offering to 
serve interstate travelers or serving food a substantial 
portion of which has moved in interstate commerce is a 
constitutional exercise of the commerce power:

The power of Congress in this field is broad and 
sweeping; where it keeps within its sphere and vio­
lates no express constitutional limitation it has been 
the rule of this Court, going hack almost to the found­
ing days of the Eepublic, not to interfere. The Civil 
Eights Act of 1964, as here applied, we find to be 
plainly appropriate in the resolution of what Congress 
found to be a national commercial problem of the first 
magnitude. We find in it no violation of any express 
limitation of the Constitution and we therefore declare 
it valid. (At 305).

Appellant does not now contend that his conduct did not 
violate the injunction. He argues belatedly only that Title 
II of the Civil Rights Act of 1964 is unconstitutional. But 
he raises no questions which have not been thoroughly 
explored and settled by this Court. Heart of Atlanta 
Motel, Inc. v. United States, 379 U. S. 241; Katsenbach v. 
McClung, supra.



7

CONCLUSION

For the foregoing reasons this appeal should be dis­
missed for want of jurisdiction or the lower court should 
be affirmed as its decision is manifestly correct and the 
appeal raises no substantial constitutional question which 
warrants further argument.

J ack  Greenberg 
J ames M. N abr.it , III 
M ich ael  M eltsner 
L eroy D . Clark

10 Columbus Circle 
New York, N. Y. 10019

W illiam  H . A lexander

859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Appellees



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