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    I n t h e

Crntrt of %  Inttefi Btntm
O ctobeb. T e r m , 1970 

No. 732

S tate  oe A labama, et al.,

v.
Appellants,

U n it e d  S tates of A m erica , et al.,
Appellees.

on  a ppea l  fro m  t h e  u n it e d  states district  court
FO R  T H E  S O U T H E R N  D IST R IC T  OF ALABAMA

MOTION TO DISMISS OR AFFIRM

J ack  Green berg  
J am es M. N abrit , I I I  
C h a rles  S t e p h e n  R alston  
N orman  C h a c h k in  
L ow ell  J o h n sto n

10 Columbus Circle 
Suite 2030
New York, New York 10019

V er n o n  C rawford 
A. J .  C ooper, J r .

1407 Davis Avenue 
Mobile, Alabama

Attorneys for Appellees 
Ollie Mae Davis,
Betty Ann Davis,
James Allen Davis, and 
Birdie Mae Davis



I N D E X

PAGE

Jurisdiction .................................................................... 1

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

Statement ...........................................   2

A r g u m e n t

I. The Appeal Should Be Dismissed Because the 
Case Was Not Required to Be Heard by a
Three-Judge Court ......................................... 6

II. The Decision Below Should Be Summarily 
Affirmed as Clearly Correct ....   8

C o n c lu sio n  ..........................................................................................  9

T able op  A u t h o r it ie s

Cases:
Bailey v. Patterson, 369 U.S. 31 (1962).........................  6
Brown v. Board of Education, 347 U.S. 483 (1954)..... 2

Carter v. West Feliciana School Board, 396 U.S. 226,
290 (1970) .................................................................... 4

Davis v. Board of School Commissioners of Mobile 
County, Oct. Term 1970, No. 436 .............................. 3

Ex Parte Bransford, 310 U.S. 354, 361 (1940).......... . 6
Ex Parte Collins, 277 U.S. 565 (1928).......... ........... . 6

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) .......................................... ......... 2,3



11

PAGE

Hunter v. Erickson, 393 U.S. 385 (1969)..................... 2

Jackson v. Choate, 404 F.2d 910 (5th Cir. 1968)..........  4

Lee v. Macon County Board of Education, 267 F. Supp.
458 (M.D. Ala, 1967) afPd sub nom. Wallace v.
United States, 389 U.S. 215 ................ ....................  3

Lee v. Macon County Board of Education (M.D. Ala.
Civ. No. 604-E) ........................................... ...............  4

Lee v. Nyquist, —— F. Supp.-----  (Oct. 1, 1970)......  8

Mitchell v. Donovan, 398 U.S. 427 (1970)..................... 7

North Carolina State Board of Education, et al. v. 
Swann, et al., Oct. Term 1970, No. 498 ..................... 8

Oklahoma Gas & Electric Co. v. Oklahoma Packing Co.,
292 U.S. 386 (1934) ....... ...... ........................ .............  6

Reitman v. Mulkey, 387 U.S. 369 (1967)....................... 2
Rockefeller v. Catholic Medical Center, 397 U.S. 820 

(1970) ........................................................................  7

Swift & Co. v. Wickham, 382 U.S. I l l  (1965).............. 6

Statutes:
28 U.S.C. §1253 ...................................... ......................  1
28 U.S.C. §2281 ............................................................  2, 6
28 U.S.C. §2282 ...........................................................2, 6, 8



I n  t h e

Supreme (Emut of %  Intfrft £>tat?jg
O ctobeb T e r m , 1970 

No. 732

S tate  of A labama , et al.,
Appellants,

v.

U n ited  S tates of A m er ic a , et al.,
Appellees.

O N  A P P E A L  FR O M  T H E  U N IT E D  STA TES D IST R IC T  COURT 
FO R T H E  S O U T H E R N  D IS T R IC T  OF ALABAMA

MOTION TO DISMISS OR AFFIRM

Appellees, pursuant to Rule 16 of the Rules of the Su­
preme Court of the United States, move that the appeal 
herein be dismissed on the ground that it is not within 
the jurisdiction of the Court, or, in the alternative, move 
that the final judgment and decree of the district court be 
affirmed on the ground that it is manifest that the ques­
tions are so unsubstantial as not to warrant further 
argument.

Jurisdiction

Appellees submit that the Court does not have jurisdic­
tion of a direct appeal pursuant to 28 U.S.C. §1253 because 
the ease is not a “civil action, suit or proceeding required 
by any Act of Congress to be heard and determined by a 
district court of three judges” (emphasis added). Appel­
lees’ argument in support of the contention that a three 
judge court was not required appears infra in argument I.



2

Questions Presented

1. Whether the appeal should be dismissed on the ground 
that no direct appeal from the district court is provided 
where the case was not one required to be heard by a dis­
trict court of three judges since the action was brought by 
the State of Alabama to seek a declaratory judgment that 
a state statute was constitutional and no injunction was 
sought or granted as specified by either 28 U.S.C. §2281 
or §2282?

2. Whether the judgment below that a part of the Ala­
bama anti-bussing law was not constitutional should be 
affirmed:

(a) on the ground that it violates the equal protection 
clause by interfering with school boards’ affirmative duty 
under Brown v. Board of Education, 347 U.S. 483 (1954), 
and Green v. County School Board of New Kent County, 
391 U.S. 430 (1968), to eliminate dual school systems;

(b) on the ground that it effects a racial classification 
which violates the principles stated in Hunter v. Erickson, 
393 U.S. 385 (1969), and in Reitman v. Mulkey, 387 U.S. 
369 (1967);

(c) on the ground that it violates the Supremacy Clause 
by seeking to overturn the desegregation decisions of the 
federal courts?

Statement

This is a direct appeal by the State of Alabama from an 
order by the United States District Court for the Southern 
District of Alabama dismissing a complaint filed by Ala­
bama seeking a declaratory judgment that a state statute 
was constitutional. The defendants in that action, appellees 
here, are the United States of America, officials of the



3

United States Departments of .Justice and Health, Educa­
tion and Welfare responsible for enforcing statutes relat­
ing to school desegregation, and the individual plaintiffs in 
Davis v. Board of School Commissioners of Mobile. County, 
Oct. Term 1970, No. 436. It is on behalf of these individuals 
that the present Motion to Dismiss or to Affirm is filed.

This case arises in the context of continuing efforts to 
disestablish segregated schools in Mobile County and 
throughout the State of Alabama. The history of these 
efforts need not be repeated here, and appellees refer the 
Court to the brief for petitioners filed in Davis v. Board of 
School Commissioners of Mobile County, No. 436, and to 
the decision of the Middle District of Alabama in Lee v. 
Macon County Board of Education, 267 F. Supp. 458 (M.D. 
Ala. 1967), aff’d, sub nom. Wallace v. United States, 389 
U.S. 215. Suffice it to say that early this year the State of 
Alabama, acting through its legislature, embarked on yet 
one more attempt1 to interfere with the desegregation of 
its public schools.

The device this time was Act No. 1, Special Session of 
the Alabama legislature 1970, approved on March 4, 1970. 
The statute, as the court below recognized (see Appendix A 
to the Jurisdictional Statement herein, p. 18) was an at­
tempt to limit school systems to so-called “freedom-of- 
choice” plans2 in the face of decisions of this Court (Green 
v. County School Bd., 391 U.S. 430) and of orders of vari­
ous district courts entered in conformance to Green and 
decisions of the Fifth Circuit.

1 See, Lee v. Macon County, supra, for accounts of earlier and 
equally abortive attempts.

2 Thus, the statute purports to prohibit not only pupil assign­
ment to achieve desegregation, but also the establishment, re­
organization, or maintenance, of any school district, school zone, 
or attendance unit for the same purpose.



4

Following passage of Act No. 1, the Mobile County 
School Board, relying on it, announced that it would not 
obey the order of the Southern District of Alabama en­
tered following the remand of the Davis case after this 
Court’s decision in Carter v. West Feliciana School Board, 
396 U.S. 226, 290. The District Court quite properly re­
quired the school board to conform to its order and held 
that Act No. 1 was no more than an unlawful attempt 
of the State legislature to annul the judgments of courts 
of the United States (see, App. B, Jurisdictional State­
ment, p. 22). Similarly, the three-judge federal court sit­
ting in Lee v. Macon County Board of Education (M.D. 
Ala. Civ. No. 604-E), refused on three occasions to modify 
school desegregation orders to allow school boards to con­
tinue to operate freedom-of-choice plans in purported re­
liance on Act No. 1 (see, App. A, Jurisdictional State­
ment, p. 19, n. 16).

At this point, the State of Alabama, through its Attor­
ney General, commenced the present action. In its com­
plaint, the state sought a declaratory judgment that Act 
No. 1 was constitutional, modification of pending orders 
in school desegregation cases, and an injunction against 
federal officers to require them to act in accordance with 
the Act’s provisions. No attack on the constitutionality 
of any federal statute was made, nor was any injunction 
sought against the enforcement of any such statute.

The district judge requested the chief judge of the Fifth 
Circuit to appoint a three-judge court which would deter­
mine in the first instance whether such a court was required 
to hear the case. This was in accordance with a standing 
policy of the circuit adopted because of the numerous re­
quests for three-judge courts in the circuit and the result­
ing difficulties such requests had engendered. See, Jackson 
v. Choate, 404 F.2d 910 (5th Cir. 1968). The three-judge



5

court convened, heard the matter, and unanimously con­
cluded that a three-judge court was not required under any 
applicable statute. Thus, it remanded the case to the orig­
inal single district judge, who adopted the decision of the 
three-judge panel that Act No. 1 was not constitutional 
and therefore dismissed the complaint for declaratory re­
lief (App. A, Jurisdictional Statement, pp. 20-21.)

However, out of “an abundance of caution” and in order 
to avoid any delays in resolving the important issues in­
volved, the other two judges concurred in the single judge’s 
order to assure that an appeal could be perfected to what­
ever court was appropriate {Ibid). Simultaneous notices 
of appeals were filed to this Court and to the Fifth Circuit. 
On motion of Appellants, the Court of Appeals has de­
ferred action on the appeal to it pending disposition of the 
appeal here.

On the merits the court below held that Act No. 1 was 
clearly an attempt to nullify decisions of this Court and 
lower federal courts requiring school districts to act af­
firmatively to disestablish segregated school systems by 
whatever means were necessary, by limiting boards to so- 
called “freedom-of-choice” plans. Such an attempt to inter­
pose the state and block orders of federal courts violated 
the Supremacy Clause of the Constitution of the United 
States (Article YI). Therefore, the declaration requested 
by the state was denied and the action dismissed.



6

ARGUMENT

I.

The Appeal Should be Dismissed Because the Case 
Was Not Required to Be Heard by a Three-Judge Court.

It is now axiomatic that the statutes dealing with three- 
judge courts (and with appeals to this Court therefrom) 
are to be narrowly construed against the necessity for 
convening such courts. See, Bailey v. Patterson, 369 U.S. 
31, 33 (1962). Taking that approach, it is clear that this 
was not a case “required” to be heard by a three-judge 
court under either 28 U.S.C. §2281 or §2282.

With respect to §2281 we point out four requisites for a 
three-judge court which are settled by this court’s deci­
sions :

1. There must be a request for an injunction to restrain 
the enforcement of a “state statute.” Ex Parte Collins, 277 
U.S. 565 (1928); Ex Parte Bransford, 310 U.S. 354 (1940).

2. The injunction must be sought “upon the ground of 
the unconstitutionality of such statute.” Swift & Co. v. 
Wickham, 382 U.S. I l l  (1965).

3. The suit must seek to restrain an “officer of such 
State.” Oklahoma Gas & Electric Co. v. Oklahoma Packing 
Co., 292 U.S. 386 (1934).

4. The suit must seek an injunction on the ground that 
the statute itself is unconstitutional and not merely on the 
ground that a statute has been used in an unconstitutional 
manner. Ex Parte Bransford, 310 U.S. 354, 361 (1940).

The present case does not satisfy any of these four requi­
sites for a three-judge court under 28 U.S.C. §2281. We



7

examine the case in terms of the relief sought in the com­
plaint and the relief granted in the court below.

The complaint filed by the State of Alabama did not 
meet either the first or second requisites. There was no 
claim or even suggestion that any state law should be 
enjoined or that any state law was unconstitutional. On 
the contrary, the state asserted the validity under the 
federal constitution of Act No. 1 and claimed that it was 
a basis for granting them relief. Thus, the action sought 
(1) a declaration that the act was constitutional, and (2) 
modification of school desegregation orders to conform 
with the act.

Similarly, requisite three was not met, since the state 
did not seek to restrain any state officers (the request for 
an injunction against certain federal officers will be dis­
cussed below). Bather, the whole object of the suit was 
to permit state school officials to operate school systems 
in certain ways. Finally, the fourth requisite wTas ipso 
facto not fulfilled since no claim was made as to the un­
constitutionality, on its face or as applied, of any state 
statute.

Further, none of these requisites was fulfilled by any 
of the responsive pleadings filed by the defendants in this 
action. No cross-complaint was filed that challenged the 
constitutionality of the statute or that asked for an in­
junction against its enforcement. The lower court simply 
denied the declaration requested by Alabama and there­
fore dismissed the complaint. Since even a declaration of 
unconstitutionality, without an injunction, is insufficient 
to give this Court jurisdiction over a direct appeal (Rocke­
feller v. Catholic Medical Center, 397 U.S. 820 (1970); 
Mitchell v. Donovan, 398 U.S. 427 (1970)), surely a re­
fusal to give a declaration of constitutionality is not ap­
pealable under §1253.



8

With respect to 28 U.S.C. §2282, it is likewise plain that 
this action was not required to be heard by a three-judge 
court. No injunction was sought against “any Act of 
Congress for repugnance to the Constitution of the United 
States.” Injunctive relief was sought against certain fed­
eral officers, viz., officials of the Departments of Justice 
and Health, Education and Welfare. However, the order 
sought was to require those officers to conform their ac­
tions to the requirements of the Alabama statute once it 
had been held to be constitutional. No challenge whatso­
ever to the constitutionality of any federal statute was 
made by any party to this litigation.

II.

The Decision Below Should Be Summarily Affirmed 
as Clearly Correct.

For the reasons set out above, appellees believe it is 
clear that this Court lacks jurisdiction over this appeal, 
and it should be dismissed. However, if this Court does 
reach the merits we believe the decision of the court below 
should be summarily affirmed as clearly correct. We will 
not here discuss at length the reasons for affirmance since 
they have been presented fully to this Court in the case 
of North Carolina State Board of Education, et al. v. Swann, 
et al., Oct. Term 1970, No. 498. We respectfully refer the 
Court to the Brief for Appellees in that case, to the deci­
sion below herein, and to the decision of the Western Dis­
trict of New York in Lee v. Nyquist,----- F. Supp. ------
(October 1, 1970), which struck down the New York statute 
on which the Alabama statute in question here was modeled 
(Copies of the decision in Lee v. Nyquist have been filed 
with this Court in No. 498).



9

CONCLUSION

For the foregoing reasons the appeal should be dis­
missed for want of jurisdiction or, in the alternative, the 
decision below should be affirmed without further briefing 
or argument.

Respectfully submitted,

J ack  G reenberg  
J am es M. N abr.it , III 
C h a rles  S t e p h e n  R alston  
N orm an  C h a c h k in  
L ow ell  J o h n sto n

10 Columbus Circle 
Suite 2030
New York, New York 10019

V er n o n  Crawford 
A. J .  C ooper , J r.

1407 Davis Avenue 
Mobile, Alabama

Attorneys for Appellees 
Ollie Mae Davis,
Betty Ann Davis,
James Allen Davis, and 
Birdie Mae Davis



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