Walker v. City of Birmingham Petition for Rehearing

    In the

Supreme ( to r t nf tlj? Imtrfc States
October Term, 1966 

No. 249

W yatt Tee W alker, et al., 

City of B irmingham.

Petitioners.,

ON W RIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA

PETITION FOR REHEARING

Jack Greenberg 
James M. Nabrit, III 
Norman C. A maker 
Leroy D. Clark 
Charles Stephen Ralston 
Michael H enry 
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

A rthur D. Shores 
1527 Fifth Avenue 
Birmingham, Alabama

Orzbll B illingsley, Jr.
1630 Fourth Avenue North 
Birmingham, Alabama

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioners

H arry H. W achtbl 
Benjamin Spiegel

598 Madison Avenue 
New York, New York 

Of Counsel



I N D E X

PAGE

Introduction .................      1

Reasons for Granting Rehearing ....................................  2

Co n c l u s io n --------- -------      13

Certificate ......................................................... -...................  14

T able op Cases

Abernathy v. Alabama, 380 U. S. 447 ..........................  12
Arvida Corp. v. Sugarman, 259 F. 2d 428 (2nd Cir. 

1958) ............................................ -.................................... 4

Cochran v. State ex rel. Gallion, 270 Ala. 440, 119 So.
2d 339 (1960) ..................................................................  6

Freedman v. Maryland, 380 U. S. 5 1 .............................. 6,11

Gober v. Birmingham, 373 U. S. 374 .......................... 8,12

Kunz v. New York, 340 U. S. 290 ..................................  12

Lauderdale County Bd. of Education v. Alexander, 269 
Ala. 79, 110 So. 2d 911 (1959) ..................................  6

Mills v. Alabama, 384 U. S. 214 ..................................... . 12
Mullane v. Central Hanover Bank & Trust Co., 339 

IT. S. 306 3



n

PAGE

NAACP v. Alabama, 357 U. S. 449 .     8
NAACP v. Alabama, 360 IT. S. 240 ............................ 8
NAACP v. Alabama, 377 U. S. 288 .     8
Niemotko v. Maryland, 340 U. S. 268 ............................. 12

Re Oliver, 333 U. S. 257 ...................................................... 3

Pennington v. Birmingham Baseball Club, Inc., 277 
Ala. 336, 170 So. 2d 410 (1964) ..............................  6

Schroeder v. City of New York, 371 IT. S. 208 ........... 3
Sherrer v. Sherrer, 334 U. S. 343 (1948) ....................... 7
In Re Shuttlesworth, 369 IT. S. 3 5 ..................................  8
Shuttlesworth v. Birmingham, 368 U. S. 959 ...................  8
Shuttlesworth v. Birmingham, 373 U. S. 262 ...................  8
Shuttlesworth v. Birmingham, 376 IT. S. 339 ...................  8
Shuttlesworth v. Birmingham, 382 IT. S. 87 ....................  8
Staub v. Baxley, 355 IT. S. 313 .................................. . 12

Terminiello v. Chicago, 337 IT. S. 1 ..................................  12
Thomas v. Mississippi, 380 IT. S. 524 ........................... 12

Walker v. City of Hutchinson, 352 IT. S. 112 ...............  3
Wallace v. Malone, 279 Ala. 93, 182 So. 2d 360 (1964) .. 6
Wilson v. State ex rel. Gallion, 270 Ala. 431, 119 So.

2d 337 (1960) .................................................................. 6

O th er  A uthorities

Rule 65, F. R. C. P ............................................................. 3,4
Moore’s Federal Practice Rules Pamphlet, 1966 ........... 3
Twentieth Century Fund Report, Administration of

Justice in the South, 1967 ..........................................  9
IT. S. Commission on Civil Rights, 1963 Report .......  9



In the

g'ltpmtt? of tl|0 InitTft States
October Term, 1966

No. 249

W yatt T ee W alker, et al.,

— v.-

Petitioners,

City of B irmingham.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA

PETITION FOR REHEARING

Introduction

Petitioners pray that this Court grant rehearing of its 
decision of June 12, 1967, affirming petitioners’ convictions 
of criminal contempt. Petitioners earnestly submit that the 
opinion of the Court rests upon assumptions concerning 
Alabama law and practice which were not the subject of 
presentation to the Court and which are incorrect. More­
over, the Court’s decision was apparently influenced by a 
misunderstanding of petitioners’ fundamental claims. Fi­
nally, petitioners submit that the unfortunate consequences 
of this Court’s decision have not been adequately explored.



2

Reasons for Granting Rehearing

I.
The majority opinion in effect creates two categories of 

governmental restraints trenching upon First Amendment 
rights: (1) statutes, ordinances, or executive orders, which 
may be ignored; and (2) judicial determinations which 
must be obeyed until vacated. Setting aside the question 
whether such a bifurcated analysis is rationally support­
able, it is evident that the majority uncritically accepted 
Alabama’s assertion that the process issued by the State 
circuit court merited the respect due litigated judicial de­
terminations. In this it erred. The temporary restraining 
order in this case was obtained without notice or hearing, 
on papers containing no allegation that such notice and 
hearing were impossible and, indeed, where such notice and 
hearing could easily have been afforded. Whatever effect 
this Court decides should be given to litigated court orders 
forbidding speech, we pray that it reconsider whether the 
same consequences should flow from ex parte orders, where 
notice and hearing are possible.

The ex parte restraining order issued in this case should 
not have been placed in the same category as litigated 
injunctions, even assuming that the latter are rationally 
distinguishable from statutes which, if patently unconsti­
tutional, can be ignored. The majority assumed that there 
is no distinction between litigated injunctions and the re­
straining order here, but there is little support for this 
assumption. In fact, the rationale of the majority opinion 
itself suggests that this assumption is mistaken, for the 
only reason for treating an injunction differently from a 
statute is that, given normal judicial procedures, the rights



3

of the parties subject to the injunction will have come 
under the scrutiny of a court prior to the issuance of the 
injunction. Both sides will have had their day in court. 
There is no generic difference between efforts to dissolve 
an ex parte temporary restraining order and defenses 
against enforcement of a permit ordinance. There is no 
reason to believe that one is more expeditious or different 
in form or content than the other. Given this rationale, 
there is no reason to place ex parte restraining orders in 
the same category as litigated injunctions.

The Due Process clause requires, at a minimum, “ that 
deprivation of life, liberty, or property by adjudication 
be proceeded by notice and opportunity for hearing appro­
priate to the nature of the case.” Mullane v. Central 
Hanover Bank <& Trust Co., 339 U. S. 306, 313. Thus, in 
Walker v. City of Hutchinson, 352 U. S. 112, notice by 
publication to a resident landowner was rejected. And 
see, Schroeder v. City of New York, 371 U. S. 208. The 
ex parte hearing smacks of Star Chamber proceedings 
without counsel. See Re Oliver, 333 U. S. 257.

Rule 65 of the Federal Rules of Civil Procedure, in con­
trast, provides the strictest possible safeguards against the 
issuance of restraining orders without notice and oppor­
tunity for hearing. In recommending amendment of the 
rule in 1966 to tighten the safeguards, the Advisory Com­
mittee stated:

In view of the possibly drastic consequences of a 
temporary restraining order, the opposition should be 
heard, if feasible, before the order is granted.

(Moore’s Federal Practice Rules Pamphlet, 1966, p. 1109.) 
New Rule 65, further tightening earlier safeguards, re­



4

quires submission of an affidavit setting out all attempts 
to give notice with the motion for a temporary restraining 
order, in addition to proof of immediate and irreparable 
injury.

Petitioners submit that the principle underlying Rule 6b 
of the Federal Rules of Civil Procedure is of constitutional 
dimensions; failure to give notice and hearing “ offends 
our customary notions of fair play.” 1

It is a matter of common knowledge among attorneys 
of experience that almost no court will issue a restraining 
order without notice to the adverse party and hearing, 
unless the unfeasibility of giving such notice is demon­
strated. Yet the City of Birmingham did not allege in 
its papers requesting the order, nor did the Alabama court 
find, that notice could not be given to the petitioners. In 
fact, notice could easily have been given; the petitioners 
were served copies of the order shortly after it was issued.

The implications for First Amendment freedoms of ele­
vating the ex parte temporary restraining order issued in 
this case to the level of a litigated injunction—and distin­
guishing it from equally lawless statutes—have not been 
presented to, or considered by, the Court. For that reason 
alone rehearing is appropriate.

1 Arvida Corp. v. Sugcirman, 259 F. 2d 428, 429 (2nd Cir. 1958) 
(Lumbard, J. concurring).



&

II.
The linchpin of the majority opinion is the assumption 

that petitioners, by filing a motion to dissolve the injunc­
tion in the state circuit court on April 11, 1963, could have 
received prompt and impartial determination of their First 
Amendment claims:

This case would arise in quite a different constitu­
tional posture if the petitioners, before disobeying 
the injunction, had challenged it in the Alabama courts, 
and had been met with delay or frustration of their 
constitutional claims. But there is no showing that 
such would have been the fate of a timely motion to 
modify or dissolve the injunction. There was an in­
terim of two days between the issuance of the injunc­
tion and the Good Friday march. The petitioners give 
absolutely no explanation of why they did not make 
some application to the state court during that period. 
(Slip Op. p. 11)

The critical assumptions contained in this passage did not 
receive briefing and argument commensurate with their 
significance as revealed in the court’s opinion; they became 
apparent only upon its publication. Unfortunately, thej  ̂are 
mistaken.

This is not a case where state law procedures requiring 
speedy review of prior restraints of First Amendment 
rights have been bypassed. Alabama has no such require­
ments ; the circuit court was in no way constrained to rule 
expeditiously on any motion to dissolve its ex parte injunc­
tion. Nor was the Supreme Court constrained to rule ex­
peditiously. Until Alabama takes affirmative steps to man-



6

date prompt determination of such prior restraints, see 
Freedman v. Maryland, 380 U. S. 51, then petitioners should 
not be punished in the name of respect for fictional pro­
cedures.

The record does not make unambiguously clear why peti­
tioners “did not make some application to the state court 
[on April 11, 1963]” (slip op. p. 11). But the record, seen 
in the context of the history of the time, warrants some 
general conclusions. In retrospect it appears that a num­
ber of factors operated.

First, petitioners would show that they had no reason to 
believe that a motion to dissolve the injunction, even if it 
could have been prepared and filed on April 11, would have 
escaped the uncertainty, delay and frustration integral to 
Alabama procedure. Petitioners have reviewed Alabama 
cases dealing with appeals from temporary injunctions. 
They make it apparent that disposition of a motion to dis­
solve within the Alabama courts would probably have taken 
at least a matter of months and perhaps longer.2

2 See Pennington v. Birmingham. Baseball Club, Inc., 277 Ala. 
336, 170 So. 2d 410 (1964) (injunction against picketing a baseball 
stadium; final adjudication five months later, after the close of the 
baseball season) ; Wilson v. State ex rel. Gallion, 270 Ala. 431, 119 
So. 2d 337 (1960) (injunction against money lender preventing the 
future usurious loans and collection of previous transactions; final 
adjudication took nine months) ; Cochran v. State ex rel. Gallion, 
270 Ala. 440, 119 So. 2d 339 (1960) (also an injunction against 
usurious loans; nine and one-half months until terminal decision) ; 
Wallace v. Malone, 279 Ala. 93, 182 So. 2d 360 (1964) (injunction 
to prevent cancellation of a textbook contract; four and one-half 
months from the overruling of the motion to dissolve until reversal 
of the Circuit Court decision by the Alabama Supreme Court); 
Lauderdale County Board of Education v. Alexander, 269 Ala. 79, 
110 So. 2d 911 (1959) (injunction against the construction of a bus 
barn in a residential neighborhood; six months until final adjudica­
tion).



7

The state circuit court was not constrained to rule ex­
peditiously on a motion to dissolve. Nor was the Supreme 
Court of Alabama constrained to grant expeditious review, 
although coneededly it does have the power to do so pur­
suant to its Rule 47.3 But even if Rule 47 were successfully 
invoked, a trial transcript must be prepared,4 the appeal 
must be docketed and time must be taken for preparation 
of briefs and arguments and consideration by the Supreme 
Court, none of which are dispensed with by Rule 47. In 
the most expedited proceedings an indeterminate but 
lengthy period of time would be consumed during which an 
invalid temporary restraining order would be suppressing 
freedom to protest in Alabama.

Of course it may be maintained that petitioners could 
have put off their marches—perhaps a few days, a few 
weeks, perhaps even a few months, while petitioners sought 
relief in the state courts. Such an observation blinds itself 
to the realities of Birmingham in the Spring of 1963. No 
purpose would be served in rehearsing that history here. 
Suffice it to say that the oppressiveness of Birmingham 
officialdom revealed by these events sparked national senti­
ment for comprehensive civil rights legislation. “We can­
not as judges be ignorant of that which is common knowl­
edge to all men” (Mr. Justice Frankfurter in Sherrer v. 
Sherrer, 334 U. S. 343, 366 (1948)).

Second, petitioners’ unvaried contacts with Alabama jus­
tice offered absolutely no prospect that meaningful relief

3 Following decision in the trial court, counsel may on three days’ 
notice petition the court to reduce the time for filing briefs and 
submitting the appeal.

4 It may be assumed that the transcript would be of approximately 
the same length as the voluminous record in the instant case.



8

would have been granted. Certainly, one of petitioners’ 
representatives (R. 352) had been denied a permit a short 
time before the event in question. There was an effort to 
prove—which was denied—that petitioners were remitted 
to a procedure for securing a permit that all other citizens 
were not required to follow.

It is common knowledge, and the U. S. Commission on 
Civil Rights has recorded that:

. . . While police action in each arrest may not 
have been improper, the total pattern of official ac­
tion, as indicated by the public statements of city 
officials, was to maintain segregation and to suppress 
protests. The police followed that policy and they 
were usually supported by local prosecutors and courts. 
(1963 Report of the U. S. Commission on Civil Rights, 
Govt. Printing Office, 1963, p. 112.)

Indeed, in this very cause, attempts to obtain permits 
to parade were rebuffed, we submit, unconstitutionally.5 6

Moreover NAACP v. Alabama, 357 U. S. 449, 360 U. S. 
240, 377 U. S. 288, Shuttlesworth v. Birmingham, 368 
IT. S. 959, 373 U. S. 262, 376 IT. S. 339, 382 U. S. 87,8 and 
Gober v. City of Birmingham, 373 IT. S. 374, hardly inspired 
confidence that normal functioning of Alabama justice 
would have been accelerated in order to grant these peti­
tioners their constitutional right to protest against state 
enforced racism. On the contrary the opposite should 
rightly have been expected.

6 The majority opinion noted that Miss Hendricks, who requested 
and was denied a permit, was not a petitioner. But she was acting 
on the petitioners’ behalf (R. 352-53).

6 See also In re Shuttlesworth, 369 U. S. 35.



9

Third, at the time in Birmingham, there were exceed­
ingly few lawyers representing civil rights defendants.7 
There were hundreds of illegal arrests; these few counsel 
were deeply involved in judicial hearings and securing re­
lease of prisoners on bail. Opportunity for detached con­
templation and for legal research were at a minimum. 
These physical factors, compounded by the ambiguity of 
the legal posture of the situation and the fact that the 
injunction and underlying ordinance were apparently un­
constitutional, probably all contributed in varying degrees 
to the decision against cancelling the Good Friday and 
Easter Sunday marches. But when events move quickly 
and large numbers of people are involved, the basis of 
decision often is not articulated, and it would be impos­
sible to assemble a catalogue of reasons why the solution 
evolved as it did. It may be observed, however, that this 
type of uncertainty may recur in free speech situations 
involving suddenly-issued temporary restraining orders, 
and that the rule of this case means “ When in doubt, re­
frain from exerising First Amendment rights.” But we 
submit that the uniform rule of the decisions of this Court 
dealing with the vagueness doctrine and prior restraints 
has heretofore been to the contrary.

III.

The demonstrations of 1963 are over and, in a funda­
mental sense, the demonstrators have been vindicated by 
the nation through passage of the Civil Bights Act of 1964.

Sentences of 5 days are not intolerable, and, were the 
consequences of this Court’s decision for the nation and

7 See, 1963 Report, United States Commission on Civil Rights, 
pp. 117-119; and see, Report of the Twentieth Century Fund, Ad­
ministration of Justice in the South, pp. 2-6, 1967.



10

its democratic process not so mischievous, petitioners would 
have little cause for complaint. But the damage done to 
First Amendment rights, should this decision stand, will 
be incalculable. If a vague and overbroad statute need not 
be obeyed because of its chilling effect upon free speech, 
how much more chilling is a vague injunction incorporating 
that statute issued without notice under cover of night! 
A statute can at least be contemplated in advance; counsel 
can maturely assess its validity and give appropriate ad­
vice. But this course was not possible here.

Petitioners hazarded their liberty on the belief—cor­
rectly, we submit—that the injunction was offensive to the 
First Amendment. Had they been wrong, they would have 
no complaint. But they were right; and yet this Court says 
that they must be punished. Petitioners must be punished, 
the Court says, because the effective modes of legal redress 
in Alabama must be respected. But, as has been shown, 
prompt and effective legal procedures in Alabama to curb 
prior restraints on First Amendment rights are not evi­
dent. At a minimum, the cause should be remanded for a 
thorough canvass of Alabama law and practice to test the 
validity of this assumption.

The Court’s decision leaves the law of prior restraints 
in a shambles. Even unconstitutionally vague statutes have 
never been so vague as to require that would-be speakers 
appraise the speed by which state courts can act. How do 
counsel learn of a court’s workload, or the state of a judge’s 
health, or the difficulty he may have in deciding issues of 
difficulty! How does another court pass on whether a case 
moved as quickly as possible! Should counsel now advise 
those under ex parte temporary restraining orders that 
are incompatible with the First Amendment that they must 
nonetheless yield to those unconstitutional restraints while



11

a state court or courts take 10 days, or 20 days, or 90 days 
or more to determine the matter! Is appeal to a single 
appellate court enough! Must counsel advise his client 
to obey the unconstitutional prior restraint while he seeks 
review in an intermediate appellate court, the state su­
preme court or, indeed, in this Court! Until now, the an­
swer was plain: If effective and prompt review is not man­
dated under state law, then prior restraints trenching on 
First Amendment rights need not be obeyed. Freedman 
v. Maryland, supra.

Moreover, the majority opinion reveals a misunderstand­
ing of petitioners’ position-—which apparently they ex­
pressed unclearly. This misunderstanding markedly af­
fected the court’s decision (Slip Op. p. 7) :

We are asked to sa)̂  that the Constitution compelled 
Alabama to allow the petitioners to violate this in­
junction, to organize and engage in these mass street 
parades and demonstrations, without any previous ef­
fort on their part to have the injunction dissolved or 
modified, or any attempt to secure a parade permit 
in accordance Avith its terms.

Nowhere is this misunderstanding more evident than in 
the majority opinion’s concluding paragraph, which refutes 
an argument never made by petitioners (Slip Op. p. 13):

[N]o man can be judge in his own case, hoAvever 
exalted his station, h ow ever righteous his motives, and 
irrespective of his race, color, politics or religion.

Petitioners flatly deny that they sought to be judges in 
their OAvn case. They sought only to have their ease judged 
according to standards compatible Avith the First Amend­



12

ment. They sought only the same rights they clearly would 
have had if they had been prosecuted under the Birming­
ham parade permit ordinance rather than under the injunc­
tion which incorporated it. While it is difficult to tell the 
extent to which these misapprehensions influenced the ma­
jority’s conclusions, further briefing and argument would 
place beyond dispute what petitioners’ contentions actually 
are.

Rehearing is granted rarely, and never lightly. But the 
implications of this decision are so dangerous to First 
Amendment freedoms that it deserves reconsideration.8 
For those concerned with law and order, as well as equal 
justice and social progress, this is the worst of all possible 
decisions. The peaceful protest movement—no matter how 
dissonant it may have become—has channeled dissatisfac­
tion with deeply ingrained injustices into constructive so­
cial change. In the face of boiling resentment against 
long-standing injustices and ugly traditions of oppression, 
the peaceful protest movement has achieved not only some 
measure of equal justice and social progress, but has eon-

8 For example, by the device of an ex parte injunction that in­
corporates an unconstitutional statute, a state can now suppress 
for an indefinite period the distribution of handbills by adherents 
to a cause that it finds distasteful, see, Staub v. Baxley, 355 U. S. 
313, and can prevent the peaceful and orderly use of a park or other 
public gathering place by an unpopular religious group, see, Nie- 
motko v. Maryland, 340 U. S. 268; Kunz v. New York, 340 U. S. 
290. On the eve of an election, city officials can suppress the pub­
lication of a newspaper which they know is hostile to their can­
didacy, see, Mills v. Alabama, 384 TJ. S. 214. A public meeting to 
be addressed by persons whose views state or city officials fear can 
be stopped, see, Terminiello v. Chicago, 337 U. S. 1. “Freedom 
Rides” can be halted, see, Abernathy v. Alabama, 380 U. S. 447; 
Thomas v. Mississippi, 380 U. S. 524, as can, under the very in­
junction issued herein (R. 32, 38), “sit-ins” , even though a city 
ordinance requires segregation in restaurants, see, Gober v. Bir­
mingham, 373 U. S. 374.



13

tributed to stability. By this decision the Court devastates 
the peaceful protest movement and leaves the field to cap­
ture by those violent elements who do not stop to read 
injunctions.

CONCLUSION

For the foregoing reasons, petitioners request that the 
Court grant rehearing and reverse the judgment below.

Respectfully submitted,

Jack Greenberg 
J ames M. Nabrit, III  
Norman C. A maker 
Leroy D. Clark 
Charles Stephen R alston 
Michael H enry 
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

A rthur D. Shores 
1527 Fifth Avenue 
Birmingham, Alabama

Orzell B illingsley, Jr.
1630 Fourth Avenue North 
Birmingham, Alabama

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioners

Harry H. W achtel 
Benjamin Spiegel

598 Madison Avenue 
New York, New York 

Of Counsel



14

Certificate

I, Melvyn Zabk, a member of the Bar of this Court and 
counsel for petitioners herein, hereby certify that the fore­
going Petition for Rehearing is presented in good faith 
and not for purposes of delay.

Attorney for Petitioners



38