Le Clair v. O'Neil Response to Appellees' Motion to Dismiss and/or Affirm

    Jtt tfye

l&tprm? (Court of tht Initrit BUUb
October Term, 1969

No. 1315

A nn Marie Le Clair, Mary L inda L usk, Ruth Y adney, 
Jill W atts, W illiam Pastreich, National W elfare Rights 
Organization, Massachusetts W elfare Rights Organi­
zation, W orcester W elfare Rights Organization, indi­
vidually and on behalf of other persons similarly situated

a p p e l l a n t s ,

v.
George D. O ’Neil, Chief of Police of the City of Worcester, 
W illiam T. B uckley, District Attorney for the City of 
Worcester, R obert H. Quinn , Attorney General of the Com­
monwealth of Massachusetts, John P. Guilfoil, Director 
of the Worcester Welfare Service Office, Robert Ott, 
Commissioner of Welfare for the Commonwealth of Mas­
sachusetts, individually and in their official capacities

A PPE LLEE S.

ON A PPE A L FROM  T H E  U N IT E D  STATES D ISTR IC T COURT 

FOR T H E  DISTRICT OF M ASSA C H U SE TTS

RESPONSE TO APPELLEES’ 
MOTION TO DISMISS AND/OR AFFIRM

M e l v y n  Z a rr  
A l l a n  G. R odgers  
L a w r e n c e  K o t in  
B a r b a r a  Sc h w a r t z b a u m  

80 Boylston Street
Of counsel: Boston, Massachusetts 02116

A n t h o n y  G. A m s t e r d a m  
St e p h e n  B ardige  
A n d r e w  L. P h i l i p

Blanchard Press, Inc., Boston, Mass. —  Law Printers



$n the
Supreme Court of the 3Ittttr& States

O ctober T erm , 1969

No. 1315

A n n  M arie L e C lair , M ary L inda L u sk , R u t h  V adney , 
J il l  W atts, W illiam  P astreich , N ational  W elfare R ights 
Organization , M assachusetts W elfare R ights  Organ i­
zatio n , W orcester W elfare R ights Organization , in d i­
v idu a lly  and on beh a lf o f  oth er p erson s s im ilarly  situated

a p p e l l a n t s ,

v.

George D. O ’N eil , Chief of Police of the City of Worcester, 
W illiam  T. B u c k le y , District Attorney for the City of 
Worcester, R obert H. Q u in n , Attorney General of the Com­
monwealth of Massachusetts, J o h n  P. G u ilfoil , Director 
of the Worcester Welfare Service Office, R obert Ot t , 
Commissioner of Welfare for the Commonwealth of Mas­
sachusetts, individually and in their official capacities

APPELLEES.

ON A P PE A L  FROM T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  D ISTRICT OF M A SSA C H U SE TTS

RESPONSE TO APPELLEES’ 
MOTION TO DISMISS AND/OR AFFIRM

Appellants prayed for a declaratory judgment of inva­
lidity of the Massachusetts “ disturbers of the peace”  law



9

(Complaint, |[4) and preliminary and permanent injunc­
tions against appellees restraining their further enforce­
ment of it (Complaint, t|3). The court below, in a single 
opinion and judgment, denied all relief and dismissed ap­
pellants’ complaint. Appellees contend that 28 IJ.S.C. 
§1253 does not permit this Court to review the court be­
low’s denial of declaratory relief in conjunction with its re­
view of the denial of injunctive relief. Not only does 
this contention make no sense, but it is surprising that it 
should be advanced at all, in light of appellees’ citation 
of such decisions of this Court as Zivickler v. Koota, 389 
U.S. 241 (1967) and Cameron v. .Johnson, 390 TJ.S. 611 
(1968).

This is not to say that this Court need reach the ques­
tion of the necessity or propriety of injunctive relief: dec­
laratory relief may be enough to remedy the denial of 
federal constitutional rights complained of by appellants. 
But appellees maintain that even declaratory relief is un­
warranted, because the validity of the “ disturbers of the 
peace ’ ’ statute can be ‘ ‘ resolved in a single state proceeding 
on appeal from [the individual appellants’ ] convictions”  
(Motion, p. 11). However true this may be in theory, it does 
not square with experience. The prosecution of those indi­
vidual appellants convicted of being “ disturbers of the 
peace”  in the no-record court have been dismissed, on 
prosecution motion, by the criminal court of record.1 And 
as was pointed out in the Jurisdictional Statement (p. 
21), some such avoidance of the federal constitutional ques­
tion was entirely predictable.

But, it may be asked, of what injury can the indivi­
dual appellants or other members of the appellant orga­
nizations complain if they can expect similarly favorable 
dispositions in the courts! Appellants answer is that given

1 This was done on April 15, 1970, subsequent to the filing of Ap­
pellants’ Jurisdictional Statement.



3

at pp. 19-21 of the Jurisdictional Statement. In summary, it 
is simply that such subsequent relief in the coui’ts is inef­
fective, by itself, to preserve First Amendment rights of 
free speech, peaceable assembly and petition for redress 
of grievances: it is ineffective to restore the lost oppor­
tunity to communicate; it is ineffective to dispel the fear 
of arrest and prosecution which deters others from parti­
cipating.

As long as police throughout the Commonwealth are au­
thorized to wield the kind of meat-ax statute challenged 
here, citizens will steer far clear of the danger zone created 
around dissident conduct which tends “ to annoy all good 
citizens”  (See Jurisdictional Statement, pp. 18-19).

It is this danger the court below failed to appreciate in 
holding that appellants, representing welfare rights workers 
throughout the Commonwealth in their continuing campaign 
for a decent standard of living, lacked standing to chal­
lenge this overhanging threat to the whole range of their 
activities.

Respectfully submitted,

M elvyn  / ' a in:
A llan  Gf. R odgers 
L aw rence K otin 
B arbara S chwartzbattm

Of counsel:

80 Boylston Street 
Boston, Massachusetts 02116 

Attorneys for Appellants

A n t h o n y  Gr. A msterdam

S teph en  B ardige

A ndrew  L. P h ilip