Thomie v. Dennard Supplemental Brief of Appellees

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 30595

OSCAR THOMIE, e t  a l ,

P la in tiffs-A p p ellan ts ,

VS.

B. E .  DENNARD, et a l ,

D efen d an ts-A p p ellees .

Appeal From The United S tates  D is tr ic t  Court For 
The Middle D istr ic t  of Georgia

SUPPLEMENTAL BRIEF OF APPELLEES

ADAMS, O'NEAL & HEMINGWAY

Manley F. Brown 
549 Mulberry Street 
M acon , Georgia 31201

Attorneys for D efendants-Appellees



IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 30595

OSCAR THOMIE , et a l ,

P la in tiffs-A p p ellan ts ,

VS.

B. E .  DENNARD, et a l ,

D efendants-Appellees

Appeal From the United States D is tr ic t  Court For 
The Middle D istr ic t  of Georgia

SUPPLEMENTAL BRIEF OF APPELLEES 

As far as  can be determined, final briefs were filed in this 

c a s e  during D ecem ber, 1970. S ince  that time, a great deal has 

transpired in the Courts bearing upon the legal complexion of this 

c a s e  and lending controlling weight to the d ecis io n  and order

entered by the Court below.



THE DEMISE OF Le FLORE

The original brief filed by Appellants p laces primary 

re liance  upon this Court's d ecis io n  in Le Flore v, Robinson, 

434 F .  2d 933 (5th C ir .  1970). In fa c t ,  a t page 9 of their 

b r ie f ,  they sta te  that Le Flore governs this appeal "in a ll  

s ig n if ican t a s p e c ts "  . However, the opinion in that c a s e  

was withdrawn by this Court on June 25 , 1971, and the entire 

matter was remanded to the D is tr ic t  Court. Le Flore v. 

Robinson , 446 F . 2d 715 (5th C ir .  1971), The withdrawal
i

was prompted by the intervening and controlling d ecis io n s  

in what are now referred to as the " younger s e x t e t " .  S e e ,  

Hobbs v . Thompson , 448 F. 2d 4 5 6 ,  458 (5th C ir. 1971). 

These c a s e s ,  Younger v, Harris , 401 U .S .  3 7 ,  27 L. Ed.

2d 669 (1971); Samuels v . M ackell  . 401 U .S .  66 , 27 L.

Ed. 2d 688 (1971); Boyle v . Landry , 401 U . S .  77 , 27 L.

Ed. 696 (1971); Perez v . Ledesma . 401 U .S  . 82 , 27 L. Ed,

2d 701 (1971); Dyson v . Stein  . 401 U .S .  200 , 27 L. Ed. 2d 

781 (1971); Byrne v . Karalexis . 401 U .S .  2 16 ,  27 L. Ed. 2d 

792 (1971), must now be read against the record in the instant 

appeal and applied accordingly . This Court i s ,  of co u rse , 

w ell aware of these d ec is io n s  but so far, they have not been 

related by way of brief to this c a s e .  This is  understandable 

insofar as Appellants are concerned since  Younger and its

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companions knock the underpinning from their legal position.

THE YOUNGER CASES

A very brief statem ent of what these c a s e s  held is  in

order.

In Younger . the defendants were indicted under the 

California criminal Syndicalism  Act and filed a complaint in 

Federal Court seeking injunctive re lie f  on First Amendmentj
grounds'against the prosecution. A three-judge d istr ic t  

Cjourt granted declaratory re lie f  (See, footnote No. 2 Younger), 

although it  was not sp e c if ica l ly  prayed for and enjoined the 

pending p rosecutions. The Supreme Court reversed and with­

out reaching the merits of the constitutionality  of the Act in 

question held that the declaratory judgment and injunction 

were "a  violation of the national policy forbidding Federal 

Courts to stay or enjoin pending Court proceedings except 

under sp e c ia l  c ircu m stances"  . 401 U .S  . a t 4 1 ,  27 L. Ed.

2d at 681.

The Younger Court reviewed the history of this par­

ticu lar  problem of federalism and arrived at a conclusion 

based upon "policy" considerations and without reaching the 

question of the impact of the anti- in ju nction  s ta tu te - -2 8  U . S . C .  

Section 2283 . 401 U .S .  a t 681 , 27 L. Ed. 2d at 669 . See



generally  as  to 28 U . S . G .  S ection  2 2 8 3 ,  The Federal Anti-

Injunction Statute and Declaratory Judgments in Constitutional 

L it ig a tio n , 83 Harv. L. Rev. 1870 (1970) (cited by Judge Gewin 

in footnote (1) to his concurring and d issen tin g  opinion in the 

f irs t  Le Flore c a s e ) .

Briefly , Younger lays down th ese  guidelines : (1) normally 

Federal Courts should not en jo in  pending s ta te  proceedings;

(2|) re l ie f  may be granted only upon a showing of irreparableI
I

iiijury and then it  must be "both great and im m ediate"; (3) mere
j

c o s t ,  anxiety  and inconvenience  on the part of defendants is 

not considered irreparable injury; (4) re l ie f  cannot be granted 

if  the threat to the federal right involved can  be eliminated by 

a d efen se  of a s ing le  prosecution (meaning sing le  prosecution 

a g a in s t  each  defendant); (5) even if  a statu te  is  unconstitu tional, 

federal in junctions are not to be granted as a matter of course;

(6) for re l ie f  to be granted there must be shown "bad faith" 

prosecutions for harassm ent purposes and the mere fa c t  that 

there e x is ts  a "ch il l in g  e f fe c t "  on certa in  constitu tional rights 

is  in su ff ic ie n t .  (Although the Court does acknowledge that some 

"extraordinary c ircu m stan ce s"  may ju stify  re l ie f  upon a showing 

of irreparable injury even without the "u su al prerequisites of

bad faith  and h a ra ssm e n t" .)



In short, Younger held " th at the p o ss ib le  u n co n sti­

tutionality  of a statute  'on its  fa c e '  does not in i t s e l f  ju stify  

an in junction a g a in s t  good -fa ith  attempts to enforce i t .  . . . "  

401 U . S .  a t 6 8 1 ,  27 L. E d . • 2d a t  6 8 1 .

Samuels v . M a ck e ll  , 401 U . S .  6 6 ,  27 L. Ed. 2d 688 

(1971 ) ,  is  the most s ig n if ican t of the Younger com panions.

The federal r e l ie f  sought in M a ck e ll  was a declaratory judg­

ment regarding New York's Criminal Anarchy statute  under

vfhich the plain tiffs  had been in d ic te d . The Court co n clu d ed ,
|

a s  Judge Gewin did in the f irs t  Le Flore opinion, that d e c la ra ­

tory re l ie f  was ju s t  as  disruptive and o ffen siv e  to sta te  pro­

ceed ings a s  an in junction:

"W e therefore hold th at,  in c a s e s  

where the s ta te  crim inal prosecution 

was begun prior to the federal su it ,  the 

same equitab le  principles re levant to 

the propriety of an in junction must be 

taken into consideration by federal 

d is tr ic t  courts in determining whether 

to issu e  a declaratory judgment, and 

that where an in junction would be im­

perm issib le  under th ese  p rin cip les , 

declaratory re l ie f  should ordinarily be 

denied as  w e l l . "  401 U . S .  a t 7 3 ,  27

L. Ed. 2d a t  6 9 3 -6 9 4 .



M a ck e ll  saw the p rac t ica l  e f fe c t  of in junctions and 

declaratory judgments as  "virtually  id e n tica l"  and held 

declaratory r e l ie f  a v a ilab le  only under "unusual circum­

s ta n c e s "  . Both Younger and M ack e ll  declined to rule on 

the s ituation  where no s ta te  proceeding is pending when 

the federal su it  is  f i le d .  See  Judge G oldberg 's a n a ly s is  

of th ese  opinions in his s p e c ia l  concurrence in the second 

Le Flore c a s e ,  446 F. 2d a t  7 1 6 ,  where i t  is  suggested that 

Younger requires a further finding that 28 U . S . C .  Section  

2283 is  not an independent bar to re l ie f  even where " irrep ­

arable  injury" is  shown.

As Judge Goldberg a lso  points out in the second 

Le Flore opinion, Younger did not resolve  the question of 

r e l ie f  from future as  opposed to pending pro secu tio n s . How- 

e v e r / Boyle v . Landry , 401 U . S .  7 7 ,  27 L . Ed. 2d 696 (1971) 

did make it c le a r  that broadside a tta ck s  a g a in s t  future pro­

secu tio n s  must be of su b stan ce  and not resting  on mere 

"sp e cu la tio n  about the future" . 401 U . S .  77 a t  p. 8 1 ,  27 

L. Ed. 2d a t  700 .

The remaining three d e c is io n s  in Dyson v . S t e i n , 

su p ra , Byrne v .  Karalexis , supra , and Perez v . Ledesma , 

supra , are e sse n t ia l ly  in the same vein and lend support to 

the Court's  c le a r  mandate that sta te  crim inal proceedings



are to be le f t  to their normal course e x ce p t under c learly  

demonstrated unusual and pressing  c ircu m sta n ce s .  It is  

noteworthy, however, that in Ledesma the Court expressed  

the view that a prosecution under an ordinance fa lls  under 

the same prin cip le . 401 U . S .  82 a t  8 5 ,  27 L. Ed. 2d at 

7 0 5 - 7 0 6 .

See  a l s o ,  Hobbs v . Thompson. 448 F. 2d 456 (5th 

C ir .  1971) and C h ief Judge Brown's d isse n t  in Perkins v, 

M is s is s ip p i  . No. 3 0 4 1 0 ,  5th C ir .  (January 14 , 1972) as  to 

p o ss ib le  im plications of the Younger c a s e s .

THE COMPLAINT AND FINDINGS IN THIS CASE

An a n a ly s is  of Appellants' complaint and its  prayers 

revea ls  that the main thrust of that instrument was to ask  for 

declaratory re l ie f  and an in junction regarding the u n co n sti­

tutionality  of the City of Perry's parade ord inance. No 

s p e c i f ic  a lleg a tio n s  of "bad faith  harassm ent" were made, • 

no damages were prayed for and no re lie f  concerning brutality 

charges was asked for ex ce p t in relation to the application  

of the parade ordinance. The brutality charges were apparently 

a very minor part of the complaint and certain ly  were not 

c learly  demonstrated by the ev id en ce .

W hat Appellants were se ek in g , though they may not 

admit i t  now, was a d eclaration  that the parade ordinance was

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unconstitu tional and an in junction a g a in s t  pending criminal 

prosecutions to re liev e  them from "e x p e n siv e  l i t ig a t io n " ,  

" in co n v en ien ce  and v e x a t io n " ,  (A-19)

The tr ia l judge heard the evidence fully and entered 

thorough findings of fa c t  and co n clu sio n s  of law , (A-4 2 1 -4 3 3 )  

These fa c ts  should be accep ted  u nless  "c le a r ly  erro n eo u s".

S e e ,  Perkins v , M i s s i s s i p p i , No, 3 0 4 1 0 ,  5th C ir .  (January 

14 , 1972 ) ,  a Se c t io n  1443 removal c a s e  but dealing with the 

same general s u b je c t  m atter a s  this ap p eal.

Of great s ig n if ic a n c e  a t this juncture are the trial 

co u rt 's  findings that: (1) p la in tiffs  failed to prove the e s s e n ­

t ia l  a l le g a tio n s  of the com plaint; (2) there was no arbitrary or 

capriciou s ap p lication  of the parade ordinance; (A-424) , (3) 

p la in tiffs  were not d e a lt  with unfairly; and, (4) p la intiffs  were 

in no danger of suffering "any irreparable in ju ry " .  (A-429).

In s u b s ta n c e ,  the Court found no bad faith  act io n s  on the part 

of the d e fen d a n ts .

APPLICATION OF THE YOUNGER CASES TO THIS APPEAL 

The tr ia l co u rt 's  opinion, while relying heavily  upon the 

a n ti- in ju n ctio n  statu te  (28 U . S . C .  Section  2283) and the d ec is io n  

in Atlantic C o ast  Line Railroad Company v . Engineers , 398 U .S .  

2 8 1 ,  26 L. Ed. 2d 234 (1970) ,  was a remarkably accu rate  fo reca s t

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of what was to come in Younger. If the Court had had Younger

and Its companions before him when his findings were e n te red , 

perhaps they would have been in more p rec ise  conformity to 

the factu a l predicate of those c a s e s .  However, in the f inal 

a n a ly s is ,  they amount to the same thing. The trial Court's 

statem ent of the law is accu rate  concerning the "p o licy "  

which was fully implemented by Younger . The findings of 

fa c t  and the Record require the application  of the Younger 

c a s e s  in th is Court and an affirmance of the Court below .

Appellants have shown no "irreparable injury" within 

the meaning of Younger and have neither a lleged  nor proved 

bad faith  p ro secu tio n s . To the contrary, the record shows 

a tremendous good faith  effort by the Perry city  o f f ic ia ls  to 

control a very d iff icu lt  and te n se  situation  and the e x e rc ise  

of remarkable restraint on their part when they were in fact  

the "h a ra sse d "  p a rt ie s .  F irst Amendment rights reach their 

outer lim its when they interfere with the rights of others and 

render it  im possib le  or d iff icu lt  for order and d isc ip lin e  to 

be maintained by o f f ic ia ls  charged with a duty in that re sp e c t .  

Such unlawful disruptive conduct is  not co nstitu tionality  

protected . S e e ,  B lackw ell v ,  Issaquena County Board of 

Education , 363 F. 2d 749 (5th C ir .  1966); C f .  , Tinker v .

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D es M oines School D is t r i c t , 393 U . S .  5 0 3 ,  21 L. Ed. 2d

731 (1969).

No reason  e x is t s  a s  to why the Appellants cannot 

e lim inate  any co n stitu tio n al problem they have by a defense 

of the few c a s e s  being a c t iv e ly  prosecuted a t  the lo ca l  s ta te  

le v e l .  Their a l le g a tio n s  of c o s t ,  anxiety and inconvenience 

are naught under Younger and that c a s e  a ls o  requires the 

co n stitu tio n al merits of the parade ordinance to be le ft  in 

the f irs t  in stan ce  to the s ta te  co u rts .

No su b stan tia l  question of future re l ie f  was presented 

to the trial court s in c e  the evidence revealed that the p lain­

ti f fs  were permitted to parade whenever they saw fit  su b je c t  

only to reasonable  requirements of some notice  to the city 

and concerning the route to be trav ersed . P la intiffs  were not 

interfered with after  they ce a sed  their i l le g a l  parades and 

followed the very simple parade permit procedure.

CONCLUSION

The crim inal c a s e s  underlying this appeal were made 

in M ay, 1970 , and have been held in limbo s in c e  that tim e.

As a p ract ica l  m atter, Appellants have had the same protection 

a s  a federal in junction s in ce  that tim e. A full hearing has been 

held a t the trial court le v e l and the record reveals  no b a s is  for

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a rev ersa l  and no purpose could be served a t  this point by 

any further federal proceed ings. We submit that this Court 

should affirm the judgment of the Court below on the strength 

of the findings entered there and the Younger d e c is io n s  so 

that the "fed era l cloud" w ill be removed from the pending 

prosecutions allowing them to take their natural course in 

the s ta te  sy s te m , whatever that may be a t  th is la te  d a te .

Respectfully  subm itted,

ADAMS, O'NEAL & HEMINGWAY

M anley F.
Attorneys for Appellees

549 Mulberry S treet 
M a co n , Georgia 31201

* * * * * * * * * * * * * * * *

CERTIFICATE OF SERVICE

This is  to certify  that I have today served a copy of the 

foregoing supplemental brief upon the attorney of record for 

A ppellants, M r. Thomas M . Ja ck so n ,  by mailing a copy of same 

to his proper address a t 655 New S tre e t ,  M acon , G eorgia.

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