Harrison v. NAACP Motion to Affirm

    I n  t h e

Bnpmm (Emirt of the Hutted Utatpa
No. 1093—October Term, 1957

A lb er tis  S. H a rrison , J r., A tto rn ey  G en er a l  of 
V ir g in ia , et al.,

Appellants,

N a tio n a l  A ssociation  for  t h e  A d v a n cem en t  of C olored 
.Pe o pl e , a Corporation, and NAACP L egal D e f e n s e  
and  E d u cational  F u n d , I ncorporated , a Corporation,

Appellees.

on a ppea l  from  t h e  u n it e d  states d istr ic t  court for t h e

E A ST E R N  D IST R IC T  OF V IR G IN IA , R IC H M O N D  D IV ISIO N

MOTION TO AFFIRM

R obert Ij . Carter
20 West 40th Street 
New York, N. Y.

Oliver W. H ill
118 E. Leigh Street 
Richmond, Va.
Attorneys for Appellee, National Association 
for the Advancement of Colored People, Inc.

T hurgood Marshall 
10 Columbus Circle 
New York, N. Y.

Spotswood W. R obinson, III  
623 North Third Street 
Richmond, Va.
Attorneys for Appellee, NAACP Legal De­
fense and Educational Fund, Inc.

I rma R obbins F eder 
J ack Greenberg 
Constance Baker Motley 

Of Counsel



INDEX TO MOTION

Opinion Below................................. ..................... .........

Jurisdiction ................ ........... .......................... ..............

Questions Presented ....... .............. ......................... ......

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

Statement of the Facts .................. ...............................

R eason  fo e  G r a n t in g  t h e  M o t io n : T h e  
Q u e st io n s  P r esen ted  A re  U n su b st a n t ia l

I. The Court below was unquestionably correct 
in holding Chapters 31, 32, and 35 unconsti­
tutional as they clearly violate the Fourteenth 
Amendment and Article III, Section 2 of the 
Constitution of the United S tates_______

II. The Court below did not abuse its equitable 
discretion in entertaining the instant suits for 
declaratory judgments and injunctive relief 
or in restraining the enforcement of the 
criminal statutes involved ........... ................

III. The Court below did not abuse its equitable 
discretion in enjoining the enforcement of the 
state statutes involved although they had not 
been authoritatively construed by the state 
courts.................... .................... ...... ...............

C o n c lu sio n



T able of C ases

page

Adkins v. School Board of City of Newport News, 148 
F. Supp. 430 (E. D. Va. 1957), aff’d 246 F. 2d 325
(4th Cir. 1957), cert. den. 355 U. S. 869 ______.___17

Aiken v. Insull, 122 F. 2d 746, 749 (7th Cir. 1941),
cert. den. 315 U. S. 806 ............................................. 9

Alabama Public Service Commission v. Southern Ry.,
341 U. S. 341....................... .................... ....................  16

Albertson v. Millard, 345 U. S. 242 _____ ___________ 16
American Federation of Labor v. Watson, 327 U. S.

582 ......... ............... ....................................................12,16

Barbier v. Connally, 113 U. S. 27 ...................     8
Bartels v. Iowa, 262 U. S. 404 ___   10
Beal v. Missouri Pacific R. Corp., 312 U. S. 45 ..........  13
Bryan v. Austin, 148 F. Supp. 563 (E. D. S. C. 1957),

vacated as moot 354 U. S. 933 ..........    15
Buchanan v. Warley, 245 U. S. 6 0 ......      6
Burford v. Sun Oil Co., 319 U. S. 315 __ ______ ____ 16
Bush v. Orleans Parish School Board, 138 F. Supp. 337 

(E. D. La. 1956), aff’d 242 F. 2d 156 (5th Cir. 1957)
16-17

Carter v. Carter Coal Co., 298 U. S. 238 ____________ 13
Chicago v. Fieldcrest Dairies, 316 U. S. 168       16
City of Birmingham v. Monk, 185 F. 2d 859 (5th Cir.

1950), cert. den. 341 U. S. 940 ...... ............................  6
Consumers’ Gas Co. v. Quimby, 137 F. 882 (7th Cir.

1905), cert. den. 198 U. S. 585 .................................... 9
Cotting v. Kansas City Stock Yards Co., 183 U. S. 79 .... 11 
Crandall v. Nevada, 73 U. S. (6 Wall.) 35....... ........... 8

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949), 
aff’d 336 U. S. 933 ..................................................... 16

ii



Doud v. Hodge, 350 U. S. 485 .......................................  15
Douglas v. Jeannette, 319 U. S. 157........... .......... .......... 12

Euclid v. Ambler Realty Co., 272 U. S. 365 ............ .....  12
Ex parte Endo, 323 U. S. 283 ........................ ........... . 6
Ex parte Young, 209 U. S. 123................... ...................  13

Fenner v. Boykin, 271 U. S. 240 ................... ...... .........  12
First Congregational Church v. Evangelical & R. Ch.,

160 F. Supp. 651 (S. D. N. Y. 1958) ________ ___ 9
Follet v. McCormick, 321 U. S. 573 ........... ............ ........ 8

Gibbs v. Buck, 307 U. S. 66___ _____________ ____ _ 13
Government & Civic Employees Organizing Committee

v. Windsor, 353 U. S. 364 .................................. ......15,16
Grosjean v. American Press Co., 287 U. S. 233 .............. 7
Gunnels v. Atlanta Bar Ass’n, 191 Ga. 366, 12 S. E.

2d 602 .................................... ..... ............. .......... ........ 9

In re Ades, 6 F. Supp. 467 (D. Md. 1934) .............. ......  9
Irving v. Neal, 209 F. 471 (S. I). N. Y. 1913) .................  9

Jahn v. Champagne Co., 157 F. 407 (W. D. Wise. 1908),
aiF.I 168 F. 510 (7th Cir. 1909) .........................  9

Joint Anti-Fascist Refugee Committee v. McGrath, 341 
U. S. 123 ............................... ............................. ........ 8

Konigsberg v. State Bar of California, 353 U. S. 252 .... 10
Korematsu v. United States, 323 U. S. 214..... ........... - 6

Lonesome v. Maxwell, 220 F. 2d 386 (4th Cir. 1955),
aff’d 350 U. S. 877 ..................................... .. ............ - 6

Ludley v. Board of Supervisors, 150 F. Supp. 900 
(E. D. La. 1957) .................................. .......................  17

McCloskey v. Tobin, 252 U. S. 107.......................... -....  10



IV

PAGE

Meredith v. Winter Haven, 320 U. S. 228 ..................... 15
Mexican Nat. Coal, Timber & Iron Co. v. Frank, 154

F. 217 (C. C. S. D. Tex. 1907) ........ ........................... 9
Meyers v. Nebraska, 262 U. S. 390 .................. .......... 10
Missouri P. R. Co. v. Tucker, 230 U. S. 340 ...... ..........  13
Morey v. Bond, 354 U. S. 457 ........................... ..... ......  11
Morgan v. Commonwealth of Virginia, 328 U. S. 373 .... 6
Murdock v. Pennsylvania, 319 U. S. 105.......... ..............  8

National Association for the Advancement of Colored
People v. Alabama,-----U. S .------ , 26 L. W. 4489,
decided June 30, 1958 .................... .............................  5, 7

Oklahoma Operating Co. v. Love, 252 U. S. 331 .....—  13

Pennsylvania v. Williams, 294 U. S. 176 ...... .............. . 16
Pierce v. Society of Sisters, 268 U. S. 510 ................ ..10,12
Propper v. Clark, 337 U. S. 472 .................................. 15

Hhiblic Utilities Co. v. United Fuel Gas Co., 317 U. S.
456 ....................... ......................................................  13

Railroad Commission of Texas v. Pullman Co., 312
U. S. 496 ..... ................... .......... .................................  16

Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1947), cert. den.
333 U. S. 875 ....................... .................... ..... .............  16

Rinderknecht v. Toledo Association of Credit Men, 13 
F. Supp. 555 (N. D. Ohio 1936) ............. ............. .....  9

Schware v. Board of Bar Examiners, 353 U. S. 232 .... 10
Slaughter House Cases, 83 U. S. (16 Wall.) 36 ..........  8
Slochower v. Board of Education, 350 U. S. 551......... . 10
Spector Motor Co. v. McLaughlin, 323 U. S. 101     16
Speiser v. Randall,-----U. S. ------, 26 L. W. 4479, de­

cided June 30, 1958 ------------------- ............................ 7
Spielman Motor Sales Co. v. Dodge, 295 U. S. 89..........  12
Sweezy v. New Hampshire, 354 U. S. 234 ................... . 5, 8



V

PA G E

Terrace v. Thompson, 263 U. S. 197................. ..........-13,14
Terral v. Burke Construction Co., 257 U. S. 529 ........ - 8
Thallheimer v. Brinckerhoff, 3 Cow. 623, 15 Am. Dec.

308 (N. Y. Court of Errors 1824) ................... ......... 10
Toomer v. Witsell, 334 U. S. 385 .................................. 15
Truas v. Corrigan, 257 U. S. 312 .................................... 8
Truax v. Raich, 239 U. S. 33 ............................. -............  12

United Public Workers v. Mitchell, 330 U. S. 75 ........... 12
United States v. CIO, 335 U. S. 106..... .....— .............. - 8
United States v. Rumley, 354 U. S. 41........ .................. 5, 8

Wadley S. R. Co. v. Georgia, 235 U. S. 651 .................  13
Watkins v. United States, 354 U. S. 178 .....................  5, 8

^Watson v. Buck, 313 U. S. 387 ............... .......................  12
Wheeler v. Denver, 229 U. S. 342  ......... ~.........—- ........ 9
Wieman v. Updegraff, 344 U. S. 183 ..... ........... .......5, 8,10

-Yakus v. United States, 321 U. S. 414    ........... ....... 13
Yick Wo v. Hopkins, 118 U. S. 356  ..... ............ ...... ....  11



Isr t h e

S u p r e m e  (f lm ir t  o f  tbi* M uitrJi S t a t e s
No. 1093—October Term, 1957

A lb er tis  S. H a rrison , J r., A tto rn ey  G en er a l  oe 
V ir g in ia , et al.,

Appellants,

N atio n a l  A ssociation  for t h e  A d v a n cem en t  of C olored 
P e o pl e , a Corporation, and NAACP L egal D e f e n s e  
and E ducational  F u n d , I ncorporated , a Corporation,

Appellees.

ON A P P E A L  FR O M  T H E  U N IT E D  STA TES D IS T R IC T  CO U RT FO R T H E  

E A ST E R N  D IST R IC T  OF V IR G IN IA , R IC H M O N D  D IV ISIO N

MOTION TO AFFIRM

Appellees in the above-entitled case move to affirm on 
the ground that the questions presented are so unsub­
stantial as not to need further argument.

Opinion Below

The opinion of the three-judge United States District 
Court for the Eastern District of Virginia, Richmond 
Division, is reported at 159 F. Supp. 503 (1958), sub nom. 
National Association for the Advancement of Colored 
People v. Patty, and is printed in Appellants’ Appendix 
in their Statement of Jurisdiction at pages 1-95.1

1 Appellants’ Appendix in their Statement of Jurisdiction is 
hereafter referred to as J.S., App.



2

Jurisdiction

Appellees adopt the section on “The Jurisdiction of the 
Court” in appellants’ Statement of Jurisdiction at page 1. 
The three statutes involved are printed verbatim at J.S., 
App. page 95.

Questions Presented

Appellees adopt the “Questions” as presented by appel­
lants at page 3 of their Statement of Jurisdiction.

Statement of the Case

Appellees, the National Association for the Advancement 
of Colored People (the Association) and the NAACP Legal 
Defense and Educational Fund (the Fund) filed separate 
complaints in the district court against the Attorney Gen­
eral of Virginia and five Commonwealth’s Attorneys who 
are charged by law with the enforcement of one or more 
of the various provisions of certain legislation enacted by 
the General Assembly of Virginia at the 1956 Extra Ses­
sion. Both complaints sought judgment declaring the 
invalidity of Chapters 31, 32, 33, 35 and 36 of the Act of 
said Extra Session of the General Assembly on the ground 
that they abridged rights secured under the equal protec­
tion and due process clauses of the Fourteenth Amend­
ment, the First Amendment and the Commerce Clause of 
the Federal Constitution. The complaints also sought in­
junctions restraining defendants from enforcing these 
statutes.

On April 30, 1958 the court below entered its judgment 
declaring Chapters 31, 32 and 35 unconstitutional and en­
joined their enforcement on the ground that they violated 
the requirements of equal protection and due process.



3

Chapters 33 and 36 were retained on the docket for a rea­
sonable time to allow plaintiffs an opportunity to proceed 
in the state courts to secure an interpretation of these two 
statutes.

Statement of the Facts

Appellees disagree with the facts recited in appellants’ 
Statement of Jurisdiction and adopt the statement of facts 
set forth in the opinion of the court below at J.S., App. 
pages 1-10.

“ T he S ta tu tes”

The three statutes involved in this appeal may be sum­
marized as follows: Chapter 31 prohibits a corporation 
from soliciting or expending funds to commence or con­
tinue proceedings to which it is not a party and in which 
it has not a pecuniary right or liability unless it annually 
files with the State Corporation Commission the names 
and addresses of its members; also, detailed information 
must be filed with respect to its income, expenditures and 
activities, including a certified statement showing the 
source of every contribution or other items of income dur­
ing the preceding calendar year plus, if requested, the 
name and address of every contributor. Noncompliance 
subjects a corporation to a $10,000 fine, for which each 
director, officer, or other person responsible for the man­
agement or control of appellee’s affairs may be held per­
sonally liable; to revocation of its authority to do business 
in Virginia; and to a court order enjoining its activities. 
Moreover, any individual acting as an agent or employee 
of the corporation is deemed guilty of a misdemeanor and 
fined $500 or sentenced to 12 months imprisonment or both.

Chapter 32 requires annual registration of any corpo­
ration which has as one of its principal functions or activi­



4

ties the advocating of racial integration or which raises 
or expends funds for the employment of counsel or pay­
ments of costs in connection with litigation in Virginia 
on behalf of any race or color. In order to register, each 
such corporation (save those which conduct their activi­
ties solely through the mails or other media for interstate 
communications and those which engage in a political 
campaign or political activities connected with it) must 
supply for public inspection detailed data itemizing, inter 
alia, the names and addresses of its members, the source 
of each contribution or other income received during the 
preceding calendar year, and the object of each expendi­
ture for the same period. Noncompliance with these 
requirements subjects corporations and individuals to the 
penalties and liabilities imposed by Chapter 31; in addi­
tion, this statute provides that each day’s failure to register 
is a separate offense punishable as such.

Chapter 35 creates and punishes the offense of barratry. 
Barratry is defined as instigating litigation, i.e., bringing 
about a suit at law or in equity in which all or part of the 
expenses of the litigation are defrayed by a “nonparty,” 
i.e., a person or corporation which has no direct interest 
(personal right or pecuniary right or liability) in the sub­
ject matter of the litigation, and occupies no position of 
trust in relation to the plaintiff, and is not duly consti­
tuted as a legal aid society approved by the Virginia State 
Bar. The Act also provides that it does not apply to con­
tingent fee contracts, and excepts from its provisions in 
effect all suits challenging state action save those involving 
the civil or constitutional rights of Negroes. The punish­
ment provided for barratry is $500 fine or a year’s im­
prisonment, or both; if the barrator is a corporation, a 
$10,000 fine and revocation of its authorization to do busi­
ness in Virginia as a foreign corporation applies.



5

REASON FOR GRANTING THE MOTION: THE
QUESTIONS PRESENTED ARE UNSUBSTANTIAL

I.
The Court below was unquestionably correct in hold­

ing Chapters 31, 32, and 35 unconstitutional as they 
clearly violate the Fourteenth Amendment and Article 
III, Section 2 of the Constitution of the United States.

It cannot be gainsaid that in advocating and seeking the 
betterment of the Negro’s status in America, appellees’ 
members and contributors are invoking their constitution­
ally protected rights of free speech and free association 
guaranteed under the due process clause of the Fourteenth 
Amendment. National Association for the Advancement of
Colored People v. Alabama,----- U. 8 .------ , 26 L. W. 4489,
decided June 30, 1958. Nor are appellees’ activities outside 
the area of state restriction or prohibition absent some 
overriding valid interest of the State. National Association 
for the Advancement of Colored People v. Alabama, supra; 
See Sweezy v. New Hampshire, 354 U. S. 234, 265, 266; 
Watkins v. United States, 354 U. S. 178, 250-251; United 
States v. Rumley, 354 U. S. 41; Wieman v. Updegraff, 344 
U. S. 183,196.

Appellants’ justification for requiring a list of appellees’ 
members and contributors under Chapter 32 is as follows:
(1) to help in law enforcement (Tr. 422, 426, 446, 468) ;
(2) to help in the selection of deputies, and prevent deputiz­
ing a person participating actively in an organization 
agitating violence (Tr. 431, 452-453, 469, 475); (3) to 
identify certain known troublemakers and their associates 
(Tr. 468, 502) ; (4) to keep a check on agitators from outside 
the community (Tr. 452, 468, 474); (5) to possibly deter 
agitators from coming in the community (Tr. 469); (6) to



6

curb race tension that might ultimately lead to violence 
(Tr. 502); (7) to deter the breach of public or private 
rights (Tr. 502) ; (8) to make the names a matter of public 
record so that direct responsibility could be placed on the 
organizations and the individuals engaging in any of the 
activities they undertook to do (Tr. 521).

Chapter 31’s demand for a list is justified as an aid in 
detecting those persons who are engaging in barratry, 
maintenance, unauthorized practice of law, and related 
offenses (Tr. 558-559).

Desirable as it may be for the state to be able to detect 
law violators, to suppress racial violence and tensions, and 
to avoid racial antagonisms, such ends may not be achieved 
by denying rights secured by the Constitution. Morgan v. 
Commonwealth of Virginia, 328 U. S. 373, 380; Ex parte 
Endo, 323 U. S. 283, 302; see Korematsu v. United States, 
323 U. S. 214, 216; Buchanan v. Warley, 245 U. S. 60, 81; 
Lonesome v. Maxwell, 220 F. 2d 386 (4th Cir. 1955) aff’d, 
350 U. S. 877; City of Birmingham v. Monk, 185 F. 2d 859 
(5th Cir. 1950), cert. den. 341 U. S. 940.

Also, the record discloses an uncontroverted showing 
that persons identified with or dedicated to appellees’ 
causes have been subjected to harassment, intimidation, 
loss of employment, and other manifestations of public 
hostility (Tr. 171, 173, 176-8, 184-7, 193-201, 205, 209-212, 
218-225, 229-232). Under circumstances similar to these, 
this Court upheld the right to preserve from disclosure 
the names and addresses of persons dedicated to appellees’ 
aims:

We think that the production order, in the respects 
here drawn in question, must be regarded as entailing 
the likelihood of a substantial restraint upon the exer­
cise by petitioner’s members of their right to freedom 
of association. Petitioner has made an uncontroverted



7

showing that on past occasions revelation of the iden­
tity of its rank-and-file members has exposed these 
members to economic reprisal, loss of employment, 
threat of physical coercion, and other manifestations 
of physical coercion, and other manifestations of public 
hostility. Under these circumstances we think it appar­
ent that compelled disclosure of petitioner’s Alabama 
membership is likely to affect adversely the ability 
of petitioner and its members to pursue their collective 
effort to foster beliefs which they admittedly have the 
right to advocate, in that it may induce members to 
withdraw from the Association and dissuade others 
from joining it because of fear of exposure of their 
beliefs shown through their associations and of the con­
sequences of this exposure. National Association for 
the Advancement of Colored People v. Alabama, supra, 
at 4493.

Thus, the court below, appellees submit, was eminently 
correct in striking down legislation which would produce 
the same reprisals and impinge the same First Amendment 
rights.

Moreover, the list of exceptions set forth in §9 of Chapter 
32 excludes from the operation of the statute every con­
ceivable group but those (like appellees) involved in the 
field of racial discrimination. To make the statute appli­
cable only to persons who engage in advocating racial 
integration is in effect to penalize them for such advocacy 
in violation of First Amendment protections. See Speiser
v. Randall,----- U. S. ------ , 26 L. W. 4479, 4480, decided
June 30, 1958.

There can be no question that corporate businesses may 
be formed not only for the purpose of engaging in free 
speech, Grosjean v. American Press Co., 287 U. S. 233, but 
also for the purpose of aiding others through the extension



8

of charity, Joint Anti-Fascist Refugee Committee v. Mc­
Grath, 341 U. S. 123.

The crime of barratry is so defined in Chapter 35, how­
ever, that appellees’ activities, which are essential to the 
exercise of their members’ and contributors’ basic First 
Amendment freedoms, are thereby made criminal. When 
appellees take concerted action in the form of sponsorship 
of litigation by furnishing counsel and sharing expenses, 
these organizations are exercising the rights of their mem­
bers and contributors to freedom of expression on public 
issues and the right to pool their resources for their 
mutual benefit. Cf. Sweezy v. New Hampshire, supra; see 
Watkins v. United States, supra at pp. 250-251; Wieman v. 
Updegraff, supra; United States v. Rumley, supra, at 46; 
Murdock v. Pennsylvania, 319 U. S. 105; Foiled v. McCor­
mick, 321 U. S. 573; cf. United States v. C. I. 0., 335 U. S. 
106, 143-144 (concurring opinion).

In Virginia, since both the legislative and executive branch 
of the government oppose elimination of state enforced 
racial restrictions, the only avenue of redress for one seek­
ing to remove such restrictions is access to the courts. 
The primary right of Virginia residents to resort to the 
federal courts for relief from state imposed racial segre­
gation stems from the Constitution itself. See Article III, 
Section 2, Clause 1. The right of persons to resort to 
federal courts for protection against unlawful state action 
has been recognized and applied by this Court in a long line 
of cases, including Terral v. Burke Construction Co., 257 
U. S. 529; Truax v, Corrigan, 257 U. S. 312, 334; Barbier 
v. Connally, 113 U. S. 27, 31; Slaughter House Cases, 83 
U. S. (16 Wall.) 36; and Crandall v. Nevada, 73 U. S. (6 
Wall.) 35, 44. Moreover, this right was specifically and ex­
pressly secured by the Civil Eights Acts2 which give a right

2E.g., Title 42, United States Code, §§1971, 1981, 1982, 1983.



9

of action at law or in equity to every person deprived of a 
Constitutional right by one acting under color of state law, 
and confer jurisdiction upon the federal district courts to 
hear and determine such cases. Title 28 U. S. C. §1343 (3).

Implied in this right of access to the federal courts is the 
right to assist, and the right to accept assistance, when 
necessary to adequately present the issues to these courts. 
The question of state imposed racial segregation is of great 
public interest, and litigation attacking such discrimination 
is too costly for the average individual litigant to bear. By 
the provisions of Chapter 35, Negroes are denied the right 
to obtain financial or legal assistance in this kind of litiga­
tion. To leave the federal courts open only to litigants able 
to finance such cases is to effectively close the door to the 
great majority of aggrieved Negro citizens.

It has long been recognized that charitable or nonprofit 
organizations may proffer legal assistance to persons un­
able to bear the costs of litigation or where important public 
issues are involved. See In re Ades, 6 F. Supp. 467, 478 (D. 
Md. 1934); Gunnels v. Atlanta Bar Assn., 191 Ga. 366, 12 
S. E. 2d 602; Irving v. Neal, 209 F. 471, 475 (S. D. N. Y. 
1913); Wheeler v. Denver, 229 U. S. 342, 351. See also 
Canon 35, Canons of Professional Ethics of the Ameri­
can Bar Association; Opinion of A. B. A. Committee on 
Professional Ethics and Grievances, Opinion 148 (1935); 
First Congregational Church v. Evangelical & R. Ch., 160 
F. Supp. 651 (S. D. N. Y. 1958); Aiken v. Insull, 122 F. 2d 
746, 749 (7th Cir. 1941), cert. den. 315 U. S. 806; Rinder- 
knecht v. Toledo Association of Credit Men, 13 F. Supp. 555, 
557 (N. D. Ohio 1936); John v. Champagne Co., 157 F. 407, 
418 (W. D. Wise. 1908) aff’d 168 F. 510 (7th Cir. 1909); 
Mexican Nat. Coal, Timber & Iron Co. v. Frank, 154 F. 217, 
224 (C. C. S. D. Tex. 1907); Consumers’ Gas Co. v. Quinby, 
137 F. 882, 893 (7th Cir. 1905), cert. den. 198 IJ. S. 585;



10

Thallhimer v. Brinckerhoff, 3 Cow. 623, 15 Am. Dec. 308 
(N. Y. Court of Errors, 1824).3 By failing to recognize 
this well settled rule, Chapter 35 establishes prerequisites 
and requirements for the conduct of litigation which are 
contrary to one of the basic tenets upon which our legal 
system is predicated. The action of the state, therefore, 
in denying appellees the right to pursue their normal 
and lawful activities is patently arbitrary and dis­
criminatory in contravention of the due process clause of 
the Fourteenth Amendment. See Schware v. Board of Bar 
Examiners, 353 IT. S. 232; Konigsberg v. State Bar of Cali­
fornia, 353 U. S. 252; Sloehower v. Board of Education, 
350 U. S. 551; Wieman of Updegraff, 344 U. S. 183; Pierce 
v. Society of Sisters, 268 U. S. 510.

Attorneys who cooperate with appellees are engaged 
in the lawful and legitimate pursuit of their professions. 
Cf. Meyers v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 
262 U. S. 404; Schware v. Board of Bar Examiners, supra; 
Konigsberg v. State Bar of California, supra. In the 
Schware case, supra, this Court said at pages 238-239:

A state cannot exclude a person from the practice of 
law or from any other occupation in a manner or for 
reasons that contravene the Due Process and Equal 
Protection Clause of the Fourteenth Amendment.

A fortiori, a state cannot impose restrictions on the prac­
tice of law or prohibit practice in certain cases in a manner 
or for reasons inconsistent with the guarantees of due 
process and equal protection.

Furthermore, Chapter 35 exempts from its operation a 
large number of groups which similarly engage in collec­

3 Of course these principles do not apply where a sharing of 
profit is involved. See McCloskey v. Tobin, 252 U. S. 107.



11

tive activities to secure rights through litigation and whose 
activities in this regard do not differ from the activities 
of appellees. The effect of the discrimination is to designate 
as criminal the activities of these organizations in sponsor­
ing litigation while permitting the identical activity by 
others, thus denying to the appellees the equal protection 
of the laws. Cotting v. Kansas City Stock Yards Co., 183 
U. S. 79. Cf. Morey v. Bond, 354 IT. S. 457; Yick Wo v. 
Hopkins, 118 U. S. 356.

For these reasons it is clear that Chapters 31, 32 and 35 
violate the equal protection and due process clauses of the 
14th Amendment as well as Article III, Section 2 to the 
federal Constitution.

II.
The Court below did not abuse its equitable discretion 

in entertaining the instant suits for declaratory judg­
ments and injunctive relief or in restraining the enforce­
ment of the criminal statutes involved.

Appellees, their members, contributors, employees, and 
lawyers to whom they may contribute money toward defray­
ing fees and expenses incident to litigation involving the 
legality of racial discrimination clearly violate Chapters 
31, 32, and 35 in the course of their routine day to day 
activities. These statutes prohibit the continuance of ap­
pellees’ business by (1) declaring illegal “non-party” aid 
to litigants seeking to secure constitutional rights against 
racial discrimination, and (2) requiring disclosure of mem­
bers’ and contributors’ names and addresses as a pre­
requisite to any and all activities concerning racial integra­
tion, including solicitation of funds from the public to defray 
the costs of litigation involving the legality of racial dis­
crimination. Appellees of necessity rely upon public sup­
port and contributions for their continued existence.



12

Not only do these statutes place a “cloud of illegality” 
over all of appellees’ activities, but also (in view of the 
present climate of opinion in Virginia) compliance would 
expose appellees’ members and contributors to harassment, 
abuse and economic reprisals (J.S., App. pp. 20-22). Thus, 
even in the absence of enforcement of these “emergency” 
statutes by state officials, the statutes visit great and im­
mediate danger of irreparable loss upon appellees by de­
priving them of public support, contributions and members, 
seriously impairing the organizations and threatening their 
destruction. Cf. Pierce v. Society of Sisters, 268 U. S. 510; 
Euclid v. Ambler Realty Co., 272 U. S. 365, 386.

It is therefore clear that the complaints herein requesting 
declaratory judgments on constitutional questions involve 
“ ‘concrete legal issues, presented in actual cases, not 
abstractions,’ . . . [where complainants] require[d] the 
use of . . . judicial authority for their protection against 
actual interference.” United Public Workers v. Mitchell, 
330 U. S. 75, 89, 90. Moreover, injunctive relief restraining 
the enforcement of the criminal statutes herein was in­
dicated and properly granted in view of the “ ‘exceptional 
circumstances’ and ‘great and immediate’ danger of ir­
reparable loss” as alleged in the complaints and shown 
at the hearing. See Watson v. Block, 313 U. S. 387, 401; 
see also American Federation of Labor v. Watson, 327 
U. S. 582, 593, 595; Douglas v. Jeannette, 319 U. S. 157, 164; 
Spiehnan Motor Sales Co. v. Dodge, 295 U. S. 89, 95; 
Fenner v. Boykin, 271 U. S. 240, 243; Truax v. Raich, 239 
U. S. 33, 37-38.

“Exceptional circumstances” are present in addition to 
those previously discussed. First, since the statutes cover 
numerous activities and classifications of persons, a multi­
plicity of suits would be required to determine their con­



13

stitutionality if the complaints in the case at bar had been 
dismissed. See Beal v. Missouri Pacific R. Corp., 312 U. S. 
45, 49. Secondly, members and contributors could not liti­
gate the validity of the registration requirements without 
revealing their identity. Thirdly, the heavy penalties pro­
vided by the statutes inhibit access to the courts for ju­
dicial determination of the constitutionality of the statutes 
by placing such a high price on inviting or awaiting actual 
prosecution. See Ex parte Young, 209 U. S. 123, 147-148; 
see also Missouri P. R. Co. v. Tucker, 230 U. S. 340, 347; 
Wadley S. R. Co. v. Georgia, 235 U. S. 651, 661-666; Okla­
homa Operating Co. v. Love, 252 U. S. 331, 336-338; Carter 
v. Carter Coal Co., 298 U. S. 238, 287-288; Terrace v. 
Thompson, 263 U. S. 197, 216; Gibbs v. Buck, 307 U. S. 
66, 76-78; Public Utilities Co. v. United Fuel Gas Co., 317 
U. S. 456, 468-469; Yakus v. United States, 321 U. S. 414, 
437-438. Indeed the whole panoply of state government is 
arrayed against appellees and their members and contribu­
tors (J.S., App. pp. 12-20).

The court below, therefore, was eminently correct in its 
disposition of appellants’ argument in the following man­
ner :

The defendants also invoke the familiar rule that 
ordinarily a court of equity will not restrain a criminal 
prosecution based on a state statute, even if the con­
stitutionality of the statute is involved, since this 
question can be raised and settled in the criminal case 
with review by the higher court as well as in a suit 
for an injunction, Douglas v. City of Jeannette (Penn­
sylvania), 319 U. S. 157, 163, 164, 63 S. Ct. 877, 87 
L. Ed. 1324, and this is especially true where the only 
threatened action is a single prosecution of an alleged 
violation of state law. However, it is also well recog­
nized that a criminal prosecution may be enjoined



u

under exceptional circumstances where there is a clear 
showing of danger of immediate irreparable injury, 
Spielman Motor Sales Co. v. Dodge, 295 L. S. 89, 95, 
55 S. Ct. 678, 79 L. Ed. 1322, Beal v. Missouri Pacific 
B. Corp., 312 U. S. 45, 49, 61 S. Ct. 418, 85 L. Ed. 
577. It is obvious that the present case falls in the 
latter category. The penalties prescribed by the 
statutes are heavy and they are applicable not only 
to the corporation but to every person responsible 
for the management of its affairs, and under Chapter 
32 of the statutes each day’s failure to register and 
file the required information constitutes a separate 
punishable offense. The deterrent effect of the statutes 
upon the acquisition of members, and upon the activities 
of the lawyers of the plaintiffs under the threat of 
disciplinary action has already been noted, and the 
danger of immediate and persistent efforts on the part 
of the state authorities to interfere with the activities 
of the plaintiffs has been made manifest by the re­
peated public statements. The facts of the cases 
abundantly justify the exercise of the equitable powers 
of the court. Ex parte Young, 209 U. S. 123, 147, 28 
S. Ct. 441, 52 L. Ed. 714; Truax v. Raich, 239 U. S. 
33, 36 S. Ct. 7, 60 L. Ed. 131; Western Union Telegraph 
Co. v. Andrews, 216 U. S. 165, 30 S. Ct. 286, 54 L. Ed. 
430; Sterling v. Constantin, 287 U. S. 378, 53 S. Ct, 
190, 77 L. Ed. 375 (J.S., App. pp. 31-32).

It is submitted that there is no merit in appellants’ con­
tentions and that the facts and applicable law in the in­
stant cases amply warranted the district court’s granting 
the injunctive relief requested. Terrace v. Thompson, 
263 U. S. 197, 214.



15

III.
Tlie Court below did not abuse its equitable discretion 

in enjoining the enforcement of the state statutes in­
volved although they had not been authoritatively con­
strued by the state courts.

The District Court was plainly right in deciding the 
constitutional issues presented by Chapters 31, 32, and 35 
without previous construction of these statutes by the state 
courts.

This appeal does not derive substance from the doctrine 
of abstention, recently restated in Government and Civic 
Employees Organizing Committee v. Windsor, 353 U. S. 
364, 366, that:

In an action brought to restrain the enforcement of 
a state statute on constitutional grounds, the federal 
court should retain jurisdiction until a definitive de­
termination of local law questions is obtained from the 
local courts.

This doctrine is a principle of judicial self-limitation 
rather than a rule enervating jurisdiction. Doud v. Hodge, 
350 U. S. 485. As such, its application is confined to the 
situations justifying its existence. See Propper v. Clark, 
337 U. S. 472; Meredith v. Winter Haven, 320 U. S. 228. 
And it has no application where, as here, “there is neither 
need for interpretation of the statutes nor any other special 
circumstance requiring the federal court to stay action 
pending proceedings in State courts.” Toomer v. Witsell, 
334 U. S. 385, 392 note. See also Bryan v. Austin, 148 F. 
Supp. 563, 567-568 (E. D. S. C. 1957, dissenting opinion), 
vacated as moot 354 U. S. 933.

This case does not present any “special circumstance” 
warranting state court proceedings within the abstention



16

rationale as applied by the cases from which it developed. 
Unlike Burford v. Sun Oil Co., 319 U. S. 315, and Pennsyl­
vania v. Williams, 294 U. S. 176, the District Court was not 
called upon to address itself to “a specialized aspect of a 
complicated system of local law outside the normal compe­
tence of a federal court,” Alabama Public Service Commis­
sion v. Southern Ry., 341 U. S. 341, 360 (concurring 
opinion), but rather to an issue which by Congressional 
enactments the district courts are peculiarly endowed to 
entertain. 28 U. S. C. §1343. It is not a case involving any 
special application of local law to be preliminarily resolved 
before the Federal constitutional questions are reached. 
Cf. American Federation of Labor v. Watson, 327 U. S. 
582; Spector Motor Co. v. McLaughlin, 323 U. S. 101; Rail­
road Commission of Texas v. Pullman Co., 312 U. S. 496. 
Consideration of the statutes here involved did not in any 
way necessitate “a tentative answer which may be displaced 
tomorrow by a state adjudication.” Railroad Commission 
of Texas v. Pullman Co., supra, 312 U. S. at 500.

Nor is this a case where a constitutional adjudication 
can be avoided by a definitive construction of the statutes 
involved. Cf. Albertson v. Millard, 345 U. S. 242; Chicago 
v. Fieldcrest Dairies, 316 U. S. 168; Government and Civic 
Employees v. Windsor, supra; Spector Motor Co. v. Mc­
Laughlin, supra. Their language occasions no uncertainty 
as to what they undertake to prohibit or as to whom their 
prohibitions are directed, and their unconstitutional pur­
pose is unequivocally established by their legislative his­
tory and effect recited in the majority opinion below.4

4 Although inquiry into the motivation of legislators is pro­
hibited, the intent or purpose of the legislation (as well as its 
effects) is relevant in determining constitutionality. Rice v. 
Elmore, 165 F. 2d 387, 388-389 (4th Cir. 1947), cert. den. 333 U. S. 
875; Davis v. Schnell, 81 F. Supp. 872, 878 et seq. (S. D. Ala. 
1949), aff’d 336 U. S. 933; see also Bush v. Orleans Parish School



17

(J.S., App. pp. 12-22.) The District Court was not left 
in doubt as to the statutes’ reach and impact in respect to 
their application to these appellees. Appellants have 
not been able to support any reasonable interpretation of 
the statutes that could render them valid, and it is incon­
ceivable that a state court could so construe them as to 
avoid their legal infirmities. In sum, the District Court 
was not presented with an alternative to adjudication of the 
constitutional issues thus developed. As Judge Soper 
stated:

We are advised that Virginia is not alone in enacting 
legislation seriously impeding the activities of the 
plaintiff corporations through the passage of similar 
laws. (43 Va. L. Rev. 1241.) As heretofore noted, the 
problem for determination is essentially a federal 
question with no peculiarities of local law. Where the 
statute is free from ambiguity and their remains no 
reasonable interpretation which will render it consti­
tutional there are compelling reasons to bring about 
expeditious and final ascertainment of the constitution­
ality of these statutes to the end that the multiplicity 
of similar actions may, if possible, be avoided. (J.S., 
App. p. 36.)

Appellees submit this conclusion is a wise exercise of 
judicial administration,5 and that no other course was 
open.

Board, 138 P. Supp. 337, 341 (E. D. La. 1956), aff’d 242 F. 2d 
156 (5th Cir. 1957) ; Ludley v. Board of Supervisors, 150 F. Supp. 
900, 902-903 (E. D. La. 1957) ; Adkins v. School Board of City of 
Newport News, 148 F. Supp. 430, 433-439 (E. D. Va. 1957), aff’d 
246 F. 2d 325 (4th Cir. 1957), cert. den. 355 U. S. 869.

6 The care with which the District Court treated the abstention 
rule under consideration is evidence of the fact that it declined 
to pass upon the constitutionality of the 2 other statutes attacked 
in the Complaints in this case.



18

CONCLUSION

For the foregoing reasons, the questions presented by 
appellants are clearly unsubstantial and this motion to 
affirm should be granted.

Respectfully submitted,

R obert L. C arter

20 West 40th Street 
New York, N. Y.

O liv er  W. H il l

118 E. Leigh Street 
Richmond, Va.
Attorneys for Appellee, National 
Association for the Advancement 
of Colored People, Inc.

T hurgood  M arshall  
10 Columbus Circle 
New York, N. Y.

S potswood W, R o b in so n , III 
623 North Third Street 
Richmond, Va.
Attorneys for Appellee 
NAACP Legal Defense and 
Education Fund, Inc.

I rma  R obbins F eder  
J ack  Gr een berg  
C o n sta n ce  B a ker  M otley  

Of Counsel



38