Brown v Leake County School Board Brief for Appellant

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I n  t h e

llttttpfr States (tort 0! Appeals
F oe t h e  F i f t h  C ir c u it  

No. 21224

I n  t h e  M a t t e r  of  

E. J e ss  B r o w n ,
Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

Louis H. P o l l a k  
Of Counsel

J a c k  G r e e n b e r g  
D e r r ic k  A . B e l l , J r .

10 Columbus Circle 
New York 19, New York

W il l ia m  R .  M in g , J r .
G eorge  N. L e ig h t o n

123 West Madison Street 
Chicago 2, Illinois

J a c k  H . Y o u n g  
C a r s ie  A . H a l l

115% North Farish Street 
Jackson, Mississippi

Attorneys for Appellant



I N D E X

Statement of the Case.........................................................  1

Negro Parents Retain Appellant.............................. 1

The Filing of the Suit ...............................................  4

The McBeth Motion and Affidavit ..........................  5

The Citation Order ...................................................  5

Appellant’s Return to the Citation O rder............... 7

Hearings on Citation O rder...................................... 8

The District Court’s Finding........................ ...........  11

Specification of Errors .....................................................  13

A r g u m e n t

Preliminary Statement .......................... -........ ,........  14
I. There Was No Professional Misconduct by the 

Appellant and Therefore No Justification for 
the Imposition of a Fine Under the Guise of 
Costs ...———......................... -............................. — 15
1. The Method Employed to Challenge Appel­

lant’s Authority as Counsel for One of His 
Clients Was Im proper..................................  15

2. Judge Cox Was Responsible for the Hear­
ings .......................    18

3. The Allegation Concerning the Shootings
Was Proper ...................................................  19

4. The Order Assessing Costs Exceeded the
Lower Court’s Authority Under 28 U. S. C. 
§1927 ........          20

PAGE



XI

5. Appellant in This Situation Was Entitled 
to Judicial Protection Rather Than Pun­
ishment ...........................................................  22

II. The Vindication of Civil Rights Through 
Legal Processes Will Be Seriously Restricted 
Unless the Unreasonable Standard of Profes­
sional Conduct Imposed by the Court Below 
Is Set Aside .........................................................  24

C o n c l u s i o n ..........................................................................  30

A u t h o r it ie s  C it e d

Cases:

Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss. 
1961), 368 U. S. 346, 369 U. S. 1; 323 F. 2d 201 (5th
Cir. 1963) .........................................................................  1

Beckley v. Newcomb, 24 N. H . 359 (1852) ......................  16
Bone v. Walsh Construction Co., 235 Fed. 901 (S. D.

Iowa 1916) ....................................................................... 21
Brislin v. Killanna Holding Corporation, 85 F. 2d 667

(2d Cir. 1936) .................................................................  21
Brotherhood of Railroad Trainmen v. Virginia, 32 U. S.

Law Week 4374 (April 20, 1964) ..................................  14
Brown v. Board of Education, 347 U. S. 483 (1954) .... 24 
Buchanan v. Warley, 245 U. S. 60 (1917) ......................  19

Cammer v. United States, 350 U. S. 399 (1956)............... 22
Commonwealth v. Serfass, 5 Pa. Co. 139 (1888)    16
Cooper v. Aaron, 358 U. S. 1 (1958) ........................... . 19
Coyne and Delaney Co. v. G. W. Onthank Co., 10 

F. R. D. 435 (S. D. Iowa 1950) ...................................... 21

Darby v. Daniel, 168 F. Supp. 170 (D. Miss. 1958) ____ 2

PAGE



I l l

Enochs v. Sisson, 301 F. 2d 125 (5th Cir. 1962) ........... 16
Evers v. Jackson Mun. Sep. School Disk, 328 F. 2d 408

(5th Cir. 1964) .... ...... ............................ ...........  . .49. 24, 27
Ex Parte Secombe, 19 How. 9 (1857) ....- ........................ 22

Farmer v. Arabian American Oil Co., 324 F. 2d 359 (2d
Cir. 1963), cert, granted March 10, 1964 ..................... 15

Farrington v. Wright, 1 Minn. 241 (1856) ......................  16

Henry v. Clarksdale Municipal Sep. Seh. Hist., Civ. No.
BC 6428 (N. D. Miss.) ......_............................................ 2

Henry v. Coahoma County Board of Education, 8 Race
Eel. Law Rep. 1480 (1963).............................................  2

Herron v. Herron, 255 F. 2d 589 (5th Cir. 1958) ........ . 16
Hudson, et al. v. Leake County School Board, Civil No.

3382 .................................... .................. .......... ............ .1,4, 27

Kemart Corp. v. Printing Arts Research Laboratories,
232 F. 2d 897 (9th Cir. 1956).................................... 15

Kennard v. State of Mississippi, 128 So. 2d 572 (Miss. 
1961), cert, den., 368 U. S. 869 (1961) ......................  2

Lichter Foundation Inc. v. Welch, 269 F. 2d 142 (6th 
Cir. 1959) .......................................- ............ .......... ........  15

Mason v. Biloxi Muni. Sep. Sell. Hist., 328 F. 2d 408
(5th Cir. 1964) ............. ...... ....... .................................... 1-2

McDowell v. Fair, 8 Race Rel. Law Rep. 459 (1963) .... 1
Meredith v. Fair, 298 F. 2d 696, 305 F. 2d 343 (5th

Cir. 1962)............................................. .......................1, 24, 28
Motion Picture Patents Co. v. Steiner, 201 Fed. 63 (2d 

Cir. 1912)

PAGE

2 1



IV

NAACP v. Button, 371 U. S. 415 (1963) ...........14, 24, 28, 29

In Re Stern, 121 N. Y. S. 948 (1910) ..............................  22

Toledo Metal Wheel Co. v. Foyer Bros. & Co., 223 
Fed. 350 (6th Cir. 1915) ................................................ 21

United States ex rel. Goldsby v. Harpole, 263 F. 2d 
71 (5th Cir. 1959) .....................................................2,14, 25

Weiss v. United States, 227 F. 2d 72 (2d Cir. 1955) .... 21

Statutes:

7 U. S. C.
§901 et seq...................      26

28 U. S. C.
§1291 .........................................................................  15
§1927 ..............................................     20,21,22

Miss. Code 1942 Annot.
§3841(3) .................        4
§4065.3 ...........................................................................4, 24
§6220.5 ..........................................................................  24
§6334-11 ......    24

F. R. C. P., Rule 6(d) .................................................. 16

Other Authorities:

Campbell, The Lives of The Lord Chancellors, Vol. VI,
pp. 390-97 (1847).............................................................  20
7 C. J. S. 884-85 .............................................................  16

1963 Report of the United States Commission on Civil 
Rights, pp. 117-119......................................................... 14, 25

PAGE



V

PAGE

6 Moore’s Federal Practice 1309 (1953) ------ --------- ---- 15
Opinions of Committee on Professional Ethics and

Grievances, p. 89 (American Bar Assoc., Op. 17) ....... 17
Parry, The Seven Lamps of Advocacy, p. 30 (1923) .... 23 
Canon 25, American Bar Association ..................... ....  16



In the

Hutted States (Enurt uf Appeals
F ob t h e  F i f t h  C ir c u it  

No. 21224

I n  t h e  M a t t e r  o f  

R . J e ss  B r o w n ,
Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

Statement of the Case

Negro Parents Retain Appellant

Appellant is a Negro attorney duly licensed and a prac­
ticing member of the Mississippi Bar. He is also a member 
of the Bar of the United States District Court for the 
Southern District of Mississippi.1 In 1961, he was retained

1 Appellant is 51 years old and was admitted to practice in 1954, 
after two years of law school at Texas Southern University in 
Houston (R  39-40). Prior to that time, he had been a school 
teacher in Mississippi, Texas and Kentucky (R  41).

Since his admission to the Mississippi bar, appellant has been 
involved in many of the civil rights cases filed in that state, in­
cluding Meredith v. Fair, 298 F. 2d 696, 305 F. 2d 343 (5th Cir. 
1962); McDowell v. Fair, 8 Race Rel. Law Rep. 459 (1963) (Uni­
versity of Mississippi desegregation); Bailey v. Patterson, 199 F. 
Supp. 595 (S. D. Miss. 1961), 368 U. S. 346, 369 U. S. 1, 323 
F. 2d 201 (5th Cir. 1963) (public travel desegregation); Hudson 
v. Leake County School Board and Mason v. Biloxi Muni. Sep.



2

by a group of Negro parents to assist them in efforts to 
desegregate public schools of Leake County, Mississippi.

A dozen of these parents had come to Jackson during 
the summer of 1961 to request lawyers to help them de­
segregate their schools, and met appellant during this visit 
(R 46, 48). They explained that a Negro school in their 
community, the Harmony School, had been closed, and they 
had made unsuccessful efforts to have it reopened, but 
were now abandoning such efforts in favor of desegregating 
all schools (R 51). No retainers were prepared, but the 
group was promised legal assistance (R 52).

Subsequently, a petition requesting the Leake County 
School Board to desegregate its schools was prepared and

Sch. Dist., 328 F. 2d 408 (5th Cir. 1964) ; Henry v. ClarJcsdale 
Municipal Sep. Sch. Dist., Civ. No. BC 6428 (N. D. Miss.) (public 
school desegregation); Henry v. Coahoma County Board of Edu­
cation, 8 Race Rel. Law Rep. 1480 (1963) (right of public school 
teacher and husband to take part in civil rights activity); United 
States ex rel. Goldsby v. Harpole, 263 F. 2d 71 (5th Cir. 1959); 
Kennard v. State of Mississippi, 128 So. 2d 572 (Miss. 1961), 
cert, den., 368 U. S. 869 (1961) (jury discrimination); Darby v. 
Daniel, 168 F. Supp. 170 (D. Miss. 1958) (voting discrimination). 
In addition to the above cases, appellant has participated in the 
defense of approximately 1500 persons arrested in Mississippi as 
a result of protest demonstrations against racial segregation, in­
cluding more than 300 “ freedom riders”  who tested public trans­
portation facilities in 1961, 1,000 persons arrested during protest 
demonstrations in Jackson in 1963, and approximately 125 arrested 
in similar demonstrations in Biloxi, Greenville, Canton, Clarks- 
dale, Greenwood, Winona, Indianola and Lexington, Mississippi.

Appellant has raised the issue of jury discrimination or other 
similar constitutional issues in more than 8 felony cases including 
cases of Negroes charged with raping white women. Convictions 
in 2 of these cases have been reversed on this point. One client, 
Mack Charles Parker, was lynched in April, 1959, a few days 
before his trial for rape of a white woman, and a few days after 
appellant had moved to quash the indictment based on jury 
discrimination (April Term 1959, Cir. Ct., Pearl River Co., Miss.).

While appellant is now one of three Mississippi attorneys who 
handle “ civil rights” cases, from 1954 until about 1961 he was 
the only Mississippi attorney who did so.



3

signed by 53 parents (E 56-57). This petition was mailed 
to appellant who then prepared retainer forms authorizing 
him to bring a school desegregation suit, and went to Leake 
County, a rural farming community 50 miles from his office 
in Jackson (E 183). Appellant met with a group of parents, 
explained that he needed their authorization to file the peti­
tion and if necessary a lawsuit (E. 75), obtained signatures 
of those present on retainers and left blank retainer forms 
with leaders of the group who promised to obtain the signa­
tures of the other parents who wished to join in the suit 
(E 76).

In February 1962, appellant forwarded this petition to 
the Leake County Board of Education, and while he re­
ceived no response from the Board (E 65), the principal 
of the Negro high school wrote each of the petitioners ad­
vising against desegregation (E 6). Two white men, the 
game warden and the owner of a local milk dairy, visited 
the Negro community to persuade persons to withdraw their 
names from the petition (E 261-62).

Following submission of the petition to the Board, ap­
pellant learned through newspaper reports that several 
petitioners had withdrawn their names (E 58, 63). They 
were, in general, sharecroppers living on land owned by 
whites, and according to one witness, withdrew under pres­
sure (E 245). None of these persons personally reported 
to appellant their decision to withdraw, but as he learned 
of their decisions, he ceased including them in the desegre­
gation effort (E 58, 65).

Eeceiving no response to the original petition, appellant 
in August 1962 prepared and filed a second petition re­
questing the Board to desegregate the public schools (E 
65, 83). Appellant heard nothing from the Board. How­
ever, in October 1962, appellant was informed that several 
homes in the area where petitioners live were shot into 
(E 96-97). This information was deemed sufficiently con-



4

nected to the school desegregation efforts to justify men­
tion in the complaint (E 98-100).

Because he had learned that many of the persons who 
originally signed retainers had withdrawn, appellant made 
another trip to Leake County prior to filing suit to ascer­
tain which persons wished to continue (E 83-84).

The Filing of the Suit

In March 1963, appellant filed in the United States Dis­
trict Court for the Southern District of Mississippi, Hudson, 
et al. v. Leake County School Board, Civil No. 3382, on 
behalf of 13 parents who represented 28 minor children. 
In response, the Leake County Board of Education filed a 
motion to dismiss alleging that the plaintiffs had failed to 
exhaust administrative remedies under the Mississippi 
Pupil Assignment Law. The Board noticed its motion for 
April 5, 1963 and hearing was set for that date (SE 301). 
The Board was represented by its attorneys J. E. Smith 
and H. W. Davidson and by Will S. Wells, an assistant to 
the State Attorney General, who, in accordance with state 
law joined with the school board attorneys in defending 
this suit.2

2By State Statute, enacted in 1958 (§3841(3), Miss. Code 
1942 Annot.), the Attorney General is authorized to represent any 
school official in suits challenging the constitutional validity of 
state law determining inter alia which person shall attend or be 
enrolled in state colleges and schools.

In addition, §4065.3 Miss. Code 1942 Annot., requires the entire 
executive branch of the state government:

“ to prohibit, by any lawful, peaceful and constitutional means, 
the implementation of or the compliance with the integration 
decisions of the United States Supreme Court of May 17, 
1954 (347 U. S. 483, 74 S. Ct. 686, 98 L. ed. 873) and of 
May 31, 1955 (349 U. S. 294, 75 S. Ct. 753, 99 L. ed. 1083), 
and to prohibit by any lawful, peaceful and constitutional 
means, the causing or mixing or integration of the white and 
Negro races in public schools, . . .  by any branch of the fed­
eral government. . . . ”



5

The McBeth Motion and Affidavit

At the conclusion of the hearing and with no prior no­
tice to appellant, Assistant Attorney General Wells filed 
a second motion to dismiss the suit, or in the alternative 
to remove the name of Gwennell McBeth, a minor by Ruthie 
Nell McBeth (R 10, 102). The motion alleged that Mrs. 
McBeth did not authorize appellant to bring suit in her 
name, and that she has no complaint with the operation of 
the schools. The motion also stated that the allegation in 
the complaint that Mrs. McBeth’s home was shot into was 
“wholly and utterly false.” The motion was supported by 
an affidavit by Mrs. McBeth swearing that statements in 
the motion were true and made by her “ freely and volun­
tarily and without any undue influence” (R 12).

Appellant was “ shocked” and “ completely amazed” when 
he heard this motion (R 103). He did not have plaintiffs’ 
retainers with him, but in accord with his policy of immedi­
ately releasing those who decided to withdraw, readily con­
sented to striking Mrs. McBeth’s name from the complaint 
because he did not desire her to be a party if she wished to 
withdraw (R 102-03, 129). Therefore, with appellant’s full 
acquiescence, District Judge Mize granted the motion and 
struck the name of Ruthie Nell McBeth from the complaint 
(R 13).

After the hearing, appellant checked his records and 
found a retainer signed by Ruthie Nell McBeth (R 104,110) 
which authorized him to take any action he deemed neces­
sary including the filing of petitions and institution of liti­
gation, to desegregate the public school system in Leake 
County (R 23, SR 346-47).

The Citation Order

The following day, April 6, 1963, appellant met with 
Judge William Harold Cox, Southern District, Mississippi,



6

in Ms chambers on another matter. During the course of 
their conversation Judge Cox informed appellant that the 
McBeth affidavit had been brought to his attention and that 
based on its allegations, he was in the process of preparing 
a citation order (E 107). Judge Cox did not solicit any 
information from appellant about the validity of the charges 
made in the affidavit, and gave appellant to understand 
that he would take up the whole matter later (E 108-109). 
For this reason, appellant did not seek to explain why he 
had been unable to contradict the allegations in the affidavit 
on the preceding day and did not produce the McBeth re­
tainer. It was his belief that Judge Cox did not want to 
hear anything on the matter at that time (E 107-09). As 
appellant explained on the stand:

“ Now, if he had a said to me at that time uh in talk­
ing he usually refers to me as Jess he says well, Jess, 
what happened on that thing yesterday, what was the 
situation, what was it about, but he didn’t do that be­
cause at least if he did I didn’t get the understanding 
that he did, let’s put it that way, I don’t want to say 
what he didn’t do but I want to say what I didn’t under­
stand. If I had of understood it that a way I would 
have been happy to explain it in his chambers uh and 
showed him everything that I had with that respect. 
That’s the reason why I didn’t do it it didn’t appear 
to me that the door was open at that time to explain 
it to him in his chambers” (E 108-09).

Later during the same day, appellant was served with 
an order for citation for contempt issued by District Judge 
Cox. The order recited that there were probable irregu­
larities on the part of appellant in the institution of the 
Leake County school suit. Specifically, the order referred 
to the circumstances surrounding the employment of appel­
lant as counsel by Euthie Nell McBeth and “ serious charges



7

made [in the complaint] against an entire community in 
this sta ted irectin g  appellant, in this regard:

[T ]o show the Court the factual foundation of para­
graph 5(e) of the complaint to the effect that “during 
the nights of October 4th and 5th, 1962, the homes 
of Plaintiffs Mr. James Overstreet and Mrs. Ruthie 
Nell McBeth and other [N]egroes, were shot into by 
parties whose identity local law enforcement authorities 
have failed to ascertain” and as to the intended rele­
vancy and pertinency and purpose of said charge in 
this suit (R 14).

The citation was returnable on April 20, 1963. On April 
12th the Court asked appellant to decide whether or not 
he wanted a jury because the matter was thought to be in 
the nature of a criminal contempt procedure. However, 
at the outset of the hearing on April 20th, Judge Cox stated 
that the proceeding was not for contempt, but was a pro­
ceeding for the discipline of an attorney at the bar of the 
court (SR 295).

Appellant’s Return to the Citation Order

Appellant prepared a sworn return to the order of cita­
tion for contempt which he filed at the April 20th hearing 
(B 16-19). The return averred that all the named plaintiffs 
in the case had duly retained appellant to represent them 
and their children in an effort to desegregate the public 
school system of Leake County, Mississippi, and to take 
any and all steps available to that end (R 16). With re­
spect to the factual foundation of the allegation of para­
graph 5(e) of the complaint, appellant averred (R 18):

[T]here are numerous witnesses to the fact that some 
person or persons did on or about October 4-5, 1962, 
shoot into buildings and structures used and occupied



8

by the plaintiffs named in paragraph 5(e) of the com­
plaint and other Negro citizens of Leake County. So 
far as [appellant] was informed at the time of the 
filing of the complaint, local law enforcement authori­
ties had not ascertained the identity of the persons 
responsible for these attacks on Negro residents of 
Leake County. These allegations are deemed by [ap­
pellant] and other counsel for plaintiffs to be relevant 
to the issue of necessity for prior exhaustion of admin­
istrative remedies of plaintiffs raised by defendants. 
But defendants have raised no issue as to the relevancy 
of these allegations so that [appellant] respectfully 
urges that any inquiry by this court at this time as to 
their relevancy is premature.

Appellant’s return prayed the court to discharge the cita­
tion or, in the alternative, grant him notice and hearing 
of any charges of improper conduct (R 19).3

Hearings on Citation Order

At the April 20th hearing, appellant’s counsel attempted 
to postpone the proceeding pending disposition of the main 
case explaining that Judge Mize had entered an order strik­
ing Ruthie Nell McBeth’s name from the complaint and 
that appellant’s willingness to have this done was based on 
the fact that he had no notice of the motion and that Mrs. 
McBeth could withdraw from a lawsuit at anytime (SR 
301-02). Judge Cox responded that he had not heard those 
facts before but:

3 Appellant also urged the Court to exercise its supervisory 
power over members of the bar to inquire into the relationship, 
if any, between counsel for the defendants and Mrs. McBeth 
(R 18-19). A t the April 20th hearing, appellant questioned the 
propriety of the introduction of the McBeth affidavit to the court 
by counsel for the defendant (SR 308-09). Judge Cox replied that 
in the absence of a charge o f impropriety, he was not “ looking for 
any trouble”  (SR 309).



9

“That is something I think I ought to hear on a hearing 
of all the facts and all the evidence in its proper setting 
and perspective” (SR 303).

Later Judge Cox stated:

“ . . . let’s try this thing and if Jess is innocent and I 
hope he is let’s find out that from the evidence” (SR 
305-06).

Appellant’s counsel suggested that the return fully an­
swered the citation order and that the citation should be 
discharged.

Judge Cox replied:
“ I don’t know what you have got in your response to 
the citation but I will let you file it but I want to hear 
a full development on the facts . . . ” (SR 306).

Judge Cox then refused to discharge the citation but 
amended it to direct appellant to “ show cause why he should 
not be disciplined by this Court for any impropriety or 
impermissible irregularity” (R 21, SR 304).

At the outset of the hearing on May 11, 1963, counsel for 
appellant again moved the court to discharge the citation 
order on the ground that the return is sufficient so as to 
require no further proceedings by the court (SR 316-17). 
Judge Cox promptly overruled the motion.

Counsel for the Court rested after calling Ruthie Nell 
McBeth, her mother Bertha Kirkland, and the appellant. 
Based on their testimony which fully supported the allega­
tions in appellant’s return to the citation order, appellant 
moved the Court to find “ that the respondent had not been 
guilty of any improper conduct as a member of the Bar of 
this Court” (R 157). However, the Court stated:



10

I am going to let you put your evidence on and I will 
hold your motion. I want to hear everything that there 
is to be said in connection with a matter of this kind 
and I will just reserve ruling on your motion (R 158).

Appellant’s counsel then introduced testimony from seven 
witnesses and various documents which detailed the first 
steps of a small group of Negro parents to implement the 
Supreme Court’s school desegregation decision in a rural 
Mississippi county, and appellant’s good faith efforts to 
help them attain this goal.

As to the allegations in the affidavit of Ruthie Nell Me- 
Beth, the testimony showed that Mrs. McBeth, despite her 
sworn motion, had signed a retainer in December 1961, 
authorizing appellant to bring a school desegregation suit 
on her behalf (SR 346-47). On the stand, she testified that 
she had not read the retainer before signing it and thought 
it merely another petition to the school board to win re­
opening of the Harmony School (SR 361, 372), but there 
was ample testimony that she carefully read and understood 
the petition and the retainer (R 165-66, 246-47), and that 
she and her mother, Mrs. Bertha Kirkland, who attended 
NAACP meetings on the school desegregation problem 
when her daughter couldn’t come (SR 400) were quite aware 
of, and in accord with, the group’s goal of desegrated 
schools. Ruthie Nell McBeth in signing the petition re­
portedly stated with reference to her child: “ . . . I don’t 
mind Pun kin going to a white school because I know she 
will have plenty of protection . . . ” (R 189). Her mother 
at one point volunteered to sign for her daughter (R 85), 
and later indicating impatience at the delay in filing the 
suit, suggested that perhaps another attorney should be 
hired because, “ Jess Brown ain’t got sense enough to file 
the suit” (R 217)



11

Their positions changed, however (R 250), although they 
did not report to appellant their decision not to go further 
(R 120). When the suit was filed listing Mrs. McBeth as a 
plaintiff, and listing her home as one of those shot into in 
October 1962, her mother reading a newspaper story of the 
suit, and making no effort to contact appellant at the 
address he had given her (E 205), went to the newspaper 
office to inquire how her daughter’s name could be removed 
from the suit (SR 326-27). Called by an employee of the 
newspaper, school board attorney J. E. Smith came im­
mediately to the newspaper office and conferred with Mrs. 
Kirkland (SR 391), with the result that two weeks later 
she and Ruthie Nell McBeth returned to Attorney Smith’s 
office and signed the motion and affidavit prepared by him 
(SR 353, 363). Neither woman knew or was told by At­
torney Smith that he represented the school board in this 
case (SR 384, 426, 432), or that the motion and affidavit 
would be filed in the case (SR 420). Moreover, while he 
had knowledge of the facts contained in the motion on 
March 9, 1963, two days after the suit was filed (SR 363), 
and two weeks before the motion and affidavit were signed 
on March 23, 1963, he made no effort to inform appellant 
of the information concerning one of the plaintiffs which 
he possessed.

It also appeared that while Mrs. McBeth’s home was 
not shot into as alleged in the complaint, the allegation 
was not ‘■'wholly and utterly false,” in that her cafe located 
some 400 yards from her home had been shot into (SR 338, 
370, 410), as were the homes of at least six of her neigh­
bors (SR 370-71), including her brother who lives only 
200 yards from her cafe (SR 357).

The District Court’s Findings

On August 20, 1961, Judge Cox submitted his Findings 
of Fact and Conclusions of Law. He found that appellant 
“ in good faith understood and actually intended the instru­



12

ment [executed by Euthie Neil McBeth] to employ bim 
as her attorney in this case” (R 24). Judge Cox failed to 
find any “ causal connection” between the complaint’s al­
legations that homes of the plaintiffs had been shot into and 
the subject matter of the case, but regarded the allegations 
as innocuous under the circumstances (R 24).

Nevertheless, Judge Cox assessed appellant with all costs 
of the disciplinary proceeding. Judge Cox assigned the 
following reason for assessment of costs (R 24):

[T]he respondent was advised by the Court on April 
6,1963, that he was being citated to explain his conduct 
in the instances mentioned to the Court prior to the 
signing of the order therefor, but he made no attempt 
to make any explanation, or showing to the Court at 
the time although he had his brief case with him.

Judge Cox concluded that “ Forthrightness and candor 
and honesty” required appellant “ to voluntarily explain 
his action in instituting this suit in the name of this woman 
after she presented her affidavit and motion to the effect 
that she had not authorized him to include her name in this 
suit” (emphasis added, R 24-25). It was appellant’s failure 
to explain this situation that necessitated two and a half 
days hearing in this matter, Judge Cox found and while 
he ordered the citation discharged because “ . . . it is not 
shown by a preponderance of the evidence that the respon­
dent is guilty of any wanton impropriety in the respects 
in question;” appellant was assessed with all costs (R 
25-26).

Pursuant to the Court’s order of August 20, the bill of 
costs in the amount of $263.87 was filed on September 17 
(R 27). Thereupon, appellant moved to vacate the order 
assessing the taxing of costs contending “that there is 
no basis in fact or law for assessing the taxing of costs 
upon respondent” (R 28).



13

On October 25, 1963, Judge Cox overruled appellant’s 
motion. Reviewing Ms earlier action, be reported “ that 
this Court had no intention of completely, fully and finally 
exonerating the respondent, R. Jess Brown, from any im­
propriety or wrong doing. . . . ” (R. 29). He again found 
that the failure to promptly report that he had a retainer 
for Ruthie Nell McBeth violated appellant’s duty of “ forth­
rightness, candor and honesty” owed the court, and this 
failure impelled the court to spend two and a half days 
hearing this matter (R 30).

Notice of appeal to this Court from the denial of ap­
pellant’s motion to vacate the order assessing costs was 
filed on October 28, 1963 (R 31). Appellant’s motion for 
stay of the order assessing costs pending appeal was sus­
tained by Judge Cox on that date (R 33).

Specification of Errors

1. The court below erred in finding that appellant’s 
conduct constituted a breach of duty to the court.

2. The court below erred in assessing costs upon ap­
pellant on the ground that appellant’s conduct necessitated 
two and one half days of hearings.

3. The court below erred in assessing a fine under the 
guise of costs in this case, which assessment violates ap­
pellant’s right to due process under the Fifth Amendment.

4. The court below erred in holding appellant to a stand­
ard of conduct which is unreasonable as applied to Mm and 
restrictive of the constitutional right of association to vindi­
cate legal rights by litigation.



14

A R G U M E N T  

Preliminary Statement

While the question before this Court may be framed in 
terms of whether the District Court abused its discretion in 
assessing appellant with the $263.87 costs in the discipli­
nary proceeding, this Court’s decision will determine 
whether Negroes in Mississippi who associate for the pur­
pose of vindicating legal rights through litigation may be 
deprived of the constitutional protection in such activities 
set. forth by the Supreme Court of the United States. 
NAACP v. Button, 371 U. S. 415 (1963); cf. Brotherhood 
of Railroad Trainmen v. Virginia, 32 U. S. Law Week 4374 
(April 20, 1964). Moreover, this case poses the issue of 
the integrity of that small segment of the Southern bar 
that will handle civil rights issues. See, 1963 Report of the 
United States Commission on Civil Rights, 117-119; United 
States ex rel. Goldshy v. Harpole, 263 P. 2d 71, 82 (5th 
Cir. 1959).

Therefore, appellant contends that his conduct in repre­
senting Negro parents who sought his professional help in 
their efforts to desegregate the Leake County, Mississippi, 
public schools was entirely proper. Indeed, he rendered his 
duty to the district court with as much forthrightness, 
candor, and honesty as his information and the situation 
would allow. And he submits that to hold him, and those few 
Mississippi attorneys willing to represent Negroes in civil 
rights cases, to the unreasonable standard set by the court 
below, will greatly increase the difficulty of an already ex­
tremely hazardous area of practice, seriously restricting



15

efforts of Mississippi Negroes to seek judicial protection 
of their constitutional rights.4

I.

There Was No Professional Misconduct by the Appel­
lant and Therefore No Justification for the Imposition 
of a Fine Under the Guise of Costs.

The court below abused its discretion in taxing costs 
upon appellant for failing to explain his employment by 
Ruthie Nell McBeth to the court on April 5-6, 1963. The 
court found this failure was a breach of appellant’s duty of 
forthrightness, candor, and honesty with the court which 
necessitated two and one half days of hearings.

Appellant submits, however, that his inability to explain 
his employment by Ruthie Nell McBeth on April 5-6, 1963, 
was not a breach of duty and neither necessitated two and 
one half days’ hearings, nor justified imposition of a fine 
under the guise of costs.

1. The method employed to challenge appellant’s
authority as counsel for one of his clients
was improper.

Appellant committed no breach of duty on either April 
5th or 6th. The motion presented to the court on April 5th 
by an assistant attorney general of the State of Mississippi, 
took appellant entirely by surprise (R 102, 103, 129).

4 This Court has jurisdiction of this appeal, from a final judg­
ment for costs under 28 U. S. C. §1291. The issue presented is not 
whether the district judge should have allowed or disallowed par­
ticular items of costs, but is rather whether he exceeded, and there­
fore abused, his discretion. Farmer v. Arabian American Oil Co., 
324 F. 2d 359 (2d Cir. 1963), cert, granted March 10, 1964; 
Lichter Foundation Inc. v. Welch, 269 F. 2d 142 (6th Cir. 1959); 
Kemart Corp. v. Printing Arts Research Laboratories, 232 F. 2d 
897 (9th Cir. 1956) ■ 6 Moore’s Federal Practice 1309 (1953).



16

The motion was offered in direct violation of Rule 6(d), 
F. R. C. P., which required a minimum of five days notice 
to appellant of Mrs. McBeth’s motion and affidavit. Herron 
v. Herron, 255 F. 2d 589 (5th Cir. 1958); Enochs v. Sisson, 
301 F. 2d 125 (5th Cir. 1962).

Appellant suffered here the very harm which this Court 
has found Rule 6 was intended to prevent. Herron v. Her­
ron, supra, at 593. Nor are the federal rules unique in the 
requirement of notice, particularly in motions questioning 
an attorney’s right to represent a client. Indeed, applicable 
and ancient authority holds that the failure to give notice 
of a motion objecting to an attorney’s right to appear is 
of itself grounds for reversing an adverse order on such 
motion. Thus, it was held in Beckley v. Newcomb, 24 N. H. 
359 (1852), the presumption that an attorney is authorized 
to appear may not be rebutted without previous notice to 
the attorney, and in Farrington v. Wright, 1 Minn. 241 
(1856), an order compelling an attorney to file evidence of 
his authority was held void as obtained without notice. 
Cf. Commonwealth v. Serfass, 5 Pa. Co. 139 (1888). See 
generally, 7 C. J. S. 884-85.

But the Assistant Attorney General’s failure to give no­
tice of the McBeth motion not only disregarded the Federal 
Rules of Civil Procedure, but also violated the Canons of 
Ethics of the American Bar Association. Canon 25 of the 
American Bar Association admonishes:

“ A lawyer should not ignore known customs or prac­
tice of the Bar or of a particular Court, even when the 
law permits, without giving timely notice to the oppos­
ing counsel.”

The American Bar Association’s Committee on Ethics 
found that adherence to Canon 25 is “ . . . the invariable 
practice of the Bar, in all courts of this county . . . ” and



17

“any other practice would defeat that fair impartial ad­
ministration of justice for which our courts are instituted 
and which the members of the Bar are sworn to uphold.” 
The failure to give notice of a motion to substitute attor­
neys to the attorney sought to be displaced, irrespective of 
rules of court and irrespective of the movant’s belief that 
the attorney was guilty of negligence in his handling of the 
case and would demand an unreasonable fee which would 
delay settlement was deemed unprofessional conduct. 
American Bar Association, Opinions of Committee on Pro­
fessional Ethics and Grievances, p. 89 (opinion 17).

The record reveals no reason why counsel for the school 
board failed to notify appellant either that one of the 
plaintiffs did not desire to be a party in the suit, which 
knowledge he obtained on March 9, 1963 (SB 391), or that 
he intended to file Mrs. McBeth’s motion and affidavit which 
he prepared and had signed on March 23, 1963. But what­
ever their reasons, the opposing counsel’s omission vio­
lated the federal rules, generally accepted rules of court 
conduct, and professional ethics. I f the time of the district 
court was misspent in this inquiry, appellant respectfully 
submits that it was because of the opposing counsel’s failure 
to notify appellant by motion or otherwise of his intended 
inquiry into appellant’s right to represent one of the peti­
tioners.

Nevertheless, at the April 5th hearing, appellant was as 
candid as it was possible for him to be under the circum­
stances. Appellant’s first concern was that Ruthie Nell 
McBeth’s name be stricken from the suit if she no longer 
wished to be a party. Since appellant had received no ad­
vance warning of the McBeth motion, he did not have the 
McBeth retainer in court at the time and thus could not 
present it to the court. Appellant did the only thing he 
could d o : he returned to his office and verified the existence 
of the retainer.



18

By the following day, April 6th, appellant knew that he 
had a retainer for Mrs. McBeth which appeared to contain 
her signature (E 110). He had not yet been able to check 
the matter with Mrs. McBeth or the Leake County parents 
(E 112), when Judge Cox advised him that he had just 
learned about the matter and was preparing a citation order 
(E 107).

Appellant, concluding from this statement that an ex­
planation was neither expected nor desired, testified:

“ . . . I got the understanding that at that time I was 
not supposed to explain to him [Judge Cox] what had 
happened because the first thing that he mentioned in 
regard to the affidavit was that he was preparing a 
. . . citation order for me. . . . ” (E 108).

In short, appellant submits that he was not attempting to 
be evasive with Judge Cox, but was merely attempting to 
be as responsive to the Judge’s wishes as the situation into 
which he was thrust by opposing counsel’s motion would 
permit.

2. Judge Cox was responsible for the hearings.

Appellant’s failure to explain his employment by Euthie 
Nell McBeth to the court on April 5th and 6th did not 
necessitate two and one half days of hearings. Appellant 
did explain his employment by Euthie Nell McBeth to the 
court in his sworn return to the order of citation. There, 
appellant showed that he had been duly retained by all of 
the named plaintiffs, including of course, Euthie Nell Mc­
Beth (E 16).

Judge Cox permitted appellant to file the return but said 
(SE 306):

“ I don’t know what you have got in your response to the 
citation, but I will let you file it. But I want to hear 
a full development of the facts . . . ”



19

Appellant was prepared and attempted several times at 
the April 20th hearing to offer exculpatory evidence, but 
was given no opportunity to do so (SR 301-02). At the 
outset of the hearing on May 11th, appellant moved the 
court to discharge the citation order (SR 316-17), and re­
newed this motion after counsel for the court rested (R 
157), but to no avail.

Thus, in the face of the showing, under oath, that appel­
lant had been properly retained by all the named plaintiffs, 
Judge Cox refused to discharge the citation insisting: 
“ I want to hear everything that there is to be said in con­
nection with a matter of this kind. . . . ” (R 158).

3. The allegation concerning the shootings was proper.

In addition to the matter of his employment by the peti­
tioners, the citation order required appellant to explain 
the allegation that petitioners’ homes were shot into, which 
allegation the district court reviewed as a serious charge 
against an entire community in the state (R 14, 20). While 
appellant subsequently proved that several homes in the 
community where petitioners live had been shot into 
(R 225-29; SR 338, 370), and explained that the incident 
was thought to be one of a series of efforts to intimidate 
petitioners from seeking their constitutional rights which 
would affect the issue of exhaustion of administrative reme­
dies (R 18, 98-99), the district court concluded that “ No 
causal connection between the shooting and the subject 
matter of the complaint is shown by the evidence” , dis­
missing it as “ an innocuous statement under the circum­
stances” (R 24).

But far from “ innocuous”, the allegations in the com­
plaint illustrating the determination of the state and com­
munity to retain segregated schools was not only relevant 
and material, see Evers v. Jackson Mun. Sep. School Dist., 
328 F. 2d 408 (5th Cir. 1964), Cooper v. Aaron, 358 IJ. S. 1 
(1958), and Buchanan v. Warley, 245 U. S. 60 (1917), but



20

in the highest traditions of onr jurisprudential system, 
performed the service of calling the court’s attention to 
actions intended to dissuade petitioners from even bringing 
their constitutional claims to the federal court.5

4, The order assessing costs exceeded the lower court’s 
authority under 28  U. S. C., §1927.

Appellant’s liability for costs is controlled by 28 U. S. C., 
§1927 which provides:

“Any attorney or other person admitted to conduct 
cases in any court of the United States or any Territory 
thereof who so multiplies the proceedings in any case 
as to increase costs unreasonably and vexatiously may 
be required by the court to satisfy personally such ex­
cess costs.” (Emphasis added.)

5 See, Campbell, The Lives of The Lord Chancellors, Yol. VI, 
pp. 390-97 (1847), where Lord Thomas Erskine (1750-1823) de­
scribed by Campbell, p. 368 as “ the brightest ornament of which 
the English Bar can b oastrep resen ted  a Captain Baillie in a 
situation analogous to aj)pellant’s. Captain Baillie, a veteran sea­
man, was appointed director of a naval hospital. Appalled by the 
abuses he found there, Captain Baillie tried in vain to obtain 
reforms, from his superiors. Finally he published a statement of 
the hospital’s case detailing the real facts without exaggeration, 
which facts reflected rather severely on one Lord Sandwich, First 
Lord of the Admiralty, who had been using the hospital facilities 
to further his personal ambitions. Captain Baillie was suspended 
and, at the prompting of Lord Sandwich, who took no active part, 
was charged with criminal libel by the Board of Admiralty.

Erskine in addressing the Court not only argued his client’s 
innocence of the charges, pointing out that it was the Captain’s 
duty to expose the corruption he found, but named Lord Sandwich 
as the real wrongdoer. One of the judges, Lord Mansfield, observed 
that Lord Sandwich was not before the Court. Erskine replied: 

“ I know that he is not formally before the Court, but for that 
very reason I will bring him before the Court. . . .  I will drag 
him to light, who is the dark mover behind this scene of 
iniquity.”

The libel charges were dismissed and Captain Baillie was even­
tually reinstated.



21

Under this section, the lower court is empowered to tax 
costs against appellant only upon a proper finding that 
he so multiplied the proceedings as to increase costs “unrea­
sonably and vexatiously.” But courts have applied the sec­
tion rarely and only when the attorney’s conduct in the 
litigation was found to be intentionally vexatious.

In Weiss v. United States, 227 F. 2d 72 (2d Cir. 1955), 
an attorney who brought four similar and unsuccessful ac­
tions to collect the proceeds of government life insurance 
policies, was merely warned by the Court that “ further 
vexatious litigation to reopen this hopeless case will sub­
ject the counsel personally to the cost thereof, as provided 
in 28 U. S. C., §1927.”  Similarly in Coyne and Delaney Co. 
v. G. W. Onthank Co., 10 F. R. D. 435 (S. D. Iowa 1950), 
the court construed §1927 as requiring a clear showing of 
an intent “ to knowingly and deliberately” increase costs. 
In Brislin v. Killanna Holding Corporation, 85 F. 2d 667 
(2d Cir. 1936), the court affirmed the trial judge’s refusal 
to award costs against an attorney who extended the rec­
ord to an “ inordinate length.” Even where an attorney de­
layed dismissal until the eve of trial, a court refused to 
construe the predecessor of §1927 to permit assessing de­
fendant’s costs of procuring expert witnesses. Bone v. 
Walsh Construction Co., 235 Fed. 901 (S. D. Iowa 1916).

In Toledo Metal Wheel Co. v. Foyer Bros. <& Co., 223 
Fed. 350 (6th Cir. 1915), costs were permitted against 
an attorney, but only on a finding that his conduct during 
the taking of depositions was “ obnoxious to the orderly, 
reasonable, and proper conduct of an examination” ; and in 
Motion Picture Patents Co. v. Steiner, 201 Fed. 63 (2d Cir. 
1912) costs were allowed defendant in a patent suit pro­
longed several months after the plaintiff’s attorney had 
officially surrendered his interest in the patent.



22

There is simply no reasonable relationship between the 
standards set by §1927, the facts in the cases where the 
section has been applied, and the appellant’s conduct. Com­
parison accentuates the appropriateness of appellant’s con­
duct, emphasizes his innocence of any impropriety or wrong­
doing, and compels the conclusion that the order of the court 
below should be reversed.

5. Appellant in this situation was entitled to judicial 
protection rather than punishment.

The order assessing costs denies to appellant the pro­
tection of the court to which appellant acting properly under 
difficult conditions was entitled. While appellant owes and, 
respectfully submits, performed the duties of honesty and 
candor to the court, it is equally the duty of the court to pro­
tect appellant’s independence in this case. In Cammer v. 
United States, 350 U. S. 399, 407 (1956) the court stated: 
“ The public have almost as deep an interest in the inde­
pendence of the bar as of the bench.”

This is no new principle. A century earlier, the Supreme 
Court in Ex Parte Secombe, 19 How. 9, 13 (1857), speak­
ing through Chief Justice Taney, made clear that the power 
of the Court to determine the qualifications of attorneys:

“ . . .  is not an arbitrary and despotic one, to be exer­
cised at the pleasure of the Court, or from passion, prej­
udice, or personal hostility; but it is the duty of the 
Court to exercise and regulate it by a sound and just 
judicial discretion, whereby the rights and indepen­
dence of the bar may be as scrupulously guarded and 
maintained by the Court, as the right and dignity of 
the Court itself.”

In short, the duty of the court toward members of the 
bar as stated in In Be Stern, 121 N. Y. S. 948 (1910), “ is not 
only to administer discipline to those found to be guilty



23

of unprofessional conduct, but to protect the reputation of 
those attacked upon frivolous or malicious charges.”

Applying these principles here imposes on the court be­
low the duty to recognize that appellant is representing 
a difficult and unpopular cause, that most members of the 
Bar of Mississippi will not take such cases, and that if un­
checked by the courts the hostility of the state and the com­
munity toward those who do is likely to result in situations 
similar to the one in which appellant now finds himself.

Appellant seeks here no special privilege or favor because 
he represents civil rights litigants. He fully realizes and 
accepts the problems inherent in such litigation in Missis­
sippi. In a similar situation, great public indignation was 
expressed against Erskine in 1762 for daring to defend 
Thomas Paine for publishing the Rights of Man. Erskine 
said:

“ In every place where business or pleasure collects the 
public together, day after day, my name and character 
have been the topics of injurious reflection. And for 
what? Only for not having shrunk from the discharge 
of a duty which no personal advantage recommended, 
and which a thousand difficulties repelled.” Parry, 
The Seven Lamps of Advocacy, p. 30 (1923).

Appellants suggests that it is the duty of the court to 
recognize his position, and to protect him from the malicious 
harassment of those who would see the cause he represents 
fail.



24

II.

The Vindication of Civil Rights Through Legal Proc­
esses Will Be Seriously Restricted Unless the Unreason­
able Standard of Professional Conduct Imposed by the 
Court Below Is Set Aside.

To tax costs for this disciplinary proceeding on the 
grounds of the order below would be unreasonable and an 
abuse of judicial discretion in the ordinary case. But a 
Mississippi Negro attorney who serves as counsel in a 
public school desegregation suit in a rural county, does 
not have just an ordinary case. The failure of the court 
below to recognize the exceptional nature of the litigation 
in which appellant is involved not only magnifies the un­
fairness of the decision as to him, but imposes a standard 
of professional conduct which in the field of civil rights 
can be met only at the expense of rights which litigants 
were found to have in NAACP v. Button, 371 U. S. 415 
(1963).

The State of Mississippi, 10 years after the Supreme 
Court’s decision in Brown v. Board of Education, 347 U. S. 
483 (1954), remains committed to a policy of complete 
racial segregation in its public schools. Evers v. Jackson 
Municipal Separate School District, 328 F. 2d 408 (5th Cir., 
1964); Meredith v. Fair, 298 F. 2d 696 (5th Cir., 1962). The 
State’s Constitution requires school segregation, its stat­
utes forbid enrollment of any child in a school unless assign­
ment is in accord with state statutes (§6334-11 Miss. Code 
1942 Annot.), make attendance at an integrated school a 
crime (§6220.5 Miss. Code 1942 Annot.), and demand that 
the entire executive branch of government prohibit school 
desegregation by any “ lawful, peaceful and constitutional 
means” (§4065.3 Miss. Code 1942 Annot.).



25

Undoubtedly because of the state’s policy, appellant is 
one of the few attorneys licensed to practice in the State of 
Mississippi who will accept a “ civil rights” case.6 An addi­
tional factor might well be the tremendous pressures ex­
erted on persons who seek through litigation the vindication 
of legal rights to desegregated public schools and the re­
sulting difficulties for any attorney representing them. Such 
pressures and difficulties are amply set forth in the record 
of this proceeding:

1. In February 1962, 53 Negro parents residing deep in 
a rural section of Mississippi petitioned the Board of Edu­
cation to assign their children to schools without regard to 
race (R 6). The Board failed even to acknowledge receipt 
of their petition (R 65, 83), but many of the petitioners who 
were sharecroppers living on land owned by whites were 
pressured into withdrawing their names from the petition 
(R 245). One petitioner who worked for a white woman 
withdrew, reportedly under similar pressure (R 245).

2. The principal of the Negro high school in Leake 
County personally wrote each petitioner warning them that 
the white community would react adversely to continued 
efforts to desegregate the system (R 6), a warning proved 
prophetic on the nights of October 4th and 5th when the 
homes and buildings of several persons in the Negro com­
munity, including some of the plaintiffs, were shot into 
(R 225-29; SR 338, 370).

3. The local game warden and the owner of a milk dairy, 
two white men with obvious standing in the community, 
made efforts to get petitioners to withdraw from the de­

6 See generally, 1963 Report of the United States Commission 
on Civil Rights pp. 117-119. Also see United States ex rel. Goldsby 
v. Harpole, 263 F. 2d 71 (5th Cir. 1959) where this Court noted 
that Mississippi lawyers seldom if  ever raise the question of racial 
discrimination in the selection of Juries. Significantly, appellant 
assisted out of state counsel for petitioner in the Goldsby case.



26

segregation effort. These men spoke to Mrs. MeBeth who, 
at the time, took comfort in her belief that the two men did 
not know who she was (R 261-62).

4. Even after the suit was filed, the pressures did not 
stop. Three employees of the R. E. A. (Rural Electrifica­
tion Administration, see 7 U. S. C. §901 et seq.), which sup­
plies electric power in the area, came to the community 
and organized a committee of Negroes, all of whom were 
related to Ruthie Nell McBeth’s step-father, to determine 
whether the real purpose of the desegregation suit was to 
win the return of the Negro school (SR 246-49).

Appellant was well aware of these pressures and exer­
cised as much care as he reasonably could to insure that 
each individual understood the true nature of the suit, and 
that those wishing to withdraw be permitted to do so. There 
was never any doubt in the minds of petitioners that they 
had abandoned hope of getting Harmony School back, and 
were determined to desegregate the schools (R 51,167, 247- 
48). All had signed the first petition (R 56-57), and the 
retainer agreement (R 76, 178), and all those who chose to 
continue were well aware of the object of their efforts and 
the difficulties likely to be encountered before their aims 
could be achieved.

This was, as far as appellant knew, true in the case of 
Ruthie Nell MeBeth. While appellant had not personally 
met her, he knew her mother as one of the more militant 
members of the Leake County group who had to be per­
suaded from signing the retainer form on behalf of her 
daughter’s children (R 85). The petitioners who obtained 
Mrs. McBeth’s signature on the petition and the retainer 
agreement knew that she had read them carefully and that 
her comments indicated that she understood and agreed 
with the idea of desegregating the schools (R 165-66, 189, 
246-47). Her mother, Mrs. Kirkland, was displeased when



27

one of her sharecroppers decided to withdraw (R 243), and 
at another point indicated displeasure with appellant’s fail­
ure to get the suit filed more quickly (R 217). It is not 
surprising then that when Mrs. Kirkland, a few days before 
the suit was filed, indicated to a few of the petitioners 
that her daughter had decided not to go on, they did not take 
her comment seriously and did not report it to appellant.

But, in spite of his care, appellant on April 5, 1963 was 
“ shocked” (R 103) and “ embarrassed” (R 129) by the affi­
davit of his client denying that he represented her. Obvi­
ously, appellant’s predicament that he had tried so hard to 
avoid (R 71, 113), was not caused by any lack of diligence 
on his part; nor did the uncommunicated decision by Ruthie 
Nell McBeth and her mother, Bertha Kirkland, not to pro­
ceed further in the desegregation effort lead to this pro­
ceeding, for several of the original petitioners reached simi­
lar decisions and appellant dropped their names as soon as 
he learned of their withdrawal (58, 65). Even after suit 
was filed the voluntary dismissal of a plaintiff in a school 
desegregation suit is not unique.7 What made the dismissal 
of Ruthie Nell McBeth crucial was not her belated decision 
to withdraw but the supporting affidavit prepared by the 
School Board attorney and moved in open court without 
prior notice to appellant. Nevertheless, the effect of the 
lower court’s findings that appellant had a duty to volun­
teer a complete explanation of the affidavit in court on 
April 5th when he had no notice, and in chambers (where he 
was on another matter) on April 6th when he was unaware 
than an explanation was in order, imposes on an attorney 
in a civil rights case the duty of being ever ready to fully 
explain, without notice, the professional relationship be­

J A  plaintiff in Evers v. Jackson Municipal Separate School Dis­
trict, Civ._ No. 3379, a companion suit to Hudson v. Leake County, 
was dismissed on motion of plaintiff’s counsel a few days before 
the McBeth motion was filed.



28

tween himself and each of his clients, even where a client 
at the instance of an attorney representing the state has 
signed charges which prove to be misleading and false. In 
Mississippi, persons involved in civil rights are given 
ample opportunity by state officials to sign affidavits dis­
claiming such activity.8 It is thus not unreasonable to pre­
dict that the duty to explain immediately such affidavits is 
likely to reduce rather than increase the number of Missis­
sippi attorneys willing to represent clients with cases in the 
civil rights field.

Appellant suggests that it was the likelihood of similar 
interference in Virginia civil rights cases that led the Su­
preme Court in NAACP v. Button, 371 U. S. 415 (1963) to 
strike down laws of that state which, as applied to attorneys 
representing civil rights cases, threatened to unreasonably 
restrict rights which the Court found to be constitutionally 
sanctioned.

The procedures of instituting a school desegregation case 
as shown in NAACP v. Button were quite similar to the 
procedures followed by appellant here. There was even 
evidence in the Button record of persons who had been 
plaintiffs in public school suits and who testified that they 
were unaware of their status as plaintiffs and ignorant 
of the nature and purpose of the suits to which they were 
parties. 371 U. S. at 422. Nevertheless, the Supreme Court 
concluded that in the civil rights field, “ litigation is not a 
technique of resolving private differences; it is a means for 
achieving the lawful objectives of equality of treatment by

_ 8 State attorneys produced five affidavits prepared by them and 
signed by Negroes alleging that James Meredith in requesting them 
to certify as to his character had not told them that such cer­
tificates would be used to help obtain his admission to the Uni­
versity of Mississippi. The affidavits were introduced at the trial 
without notice to Meredith’s counsel, but were given little weight 
by this Court. Meredith v. Fair, 305 F. 2d 343, 358-59 (5th Cir. 
1962).



29

all government, federal, state and local, for the members 
of the Negro community in this country.” 371 U. S. 429.

Civil rights litigation is thus a form of political expres­
sion in that “while serving to vindicate the legal rights of 
members of the American Negro community, at the same 
time and perhaps more importantly, makes possible the 
distinctive contribution of a minority group to the ideas 
and beliefs of our society. For such a group, association 
for litigation may be the most effective form of political 
association.” 371 U. S. 431.

Applying these principles to the record here must lead 
to a conclusion that the standard of conduct imposed by 
the court below will restrict the exercise of constitutional 
rights as effectively as the solicitation statutes under review 
in NAACP v. Button. And for similar reasons, the order 
of the court below punishing appellant by assessing him 
with costs for failing to adhere to this unreasonable stand­
ard should be reversed.



30

CONCLUSION

W h e r e f o r e , f o r  a l l  th e  f o r e g o i n g  r e a s o n s ,  a p p e l la n t  s u b ­
m its  th a t  th e  o r d e r  o f  th e  c o u r t  b e lo w  r e f u s in g  to  s e t  a s id e  
a n  o r d e r  a s s e s s in g  h im  w ith  c o s t s  in  th is  p r o c e e d in g  s h o u ld  
b e  r e v e r s e d .

Respectfully submitted,

J a c k  G r e e n b e r g  
D e r r ic k  A. B e l l , Jr.

10 Columbus Circle 
New York 19, New York

W i l l i a m  R. M in g , J r .
G eorge  N. L e ig h t o n

123 West Madison Street 
Chicago 2, Illinois

J a c k  H . Y o u n g  
C a r s ie  A. H a l l

115% North Farish Street 
Jackson, Mississippi

Attorneys for Appellant

Louis H. P o l l a k  
Of Counsel



31

CERTIFICATE OF SERVICE

This is to certify that I have this day of May, 1964 
served three copies of the foregoing Brief for Appellant 
upon the Honorable L. Arnold Pyle, Counsel for the court 
below, Suite 1347, Deposit Guaranty Bank Building, Jack- 
son, Mississippi, by depositing same in the United States 
mail, airmail, postage prepaid, addressed to him as shown 
above.

Attorney for Appellant



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