Adell Kirkland, as Mother and Next Friend of Libbie Kirkland, an Infant v. George C. Wallace, as Governor of the State of Alabama

403 F.2d 413, 1968 U.S. App. LEXIS 5177

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 22, 1968
• Docket: 24296_1
• Status: Published

Opinions

THORNBERRY, Circuit Judge:

Appellant Kirkland, a 16-year old Negro resident, and appellants Tyler and Felber, white civil rights workers, were arrested while distributing leaflets upon a public sidewalk in Eutaw, Alabama, on July 9, 1966. The leaflets concerned alleged discriminatory employment practices of local businesses and urged members of the Negro community to trade only with those merchants who hired Negroes.¹ Appellants were charged with violation of Section 56 of Title 14, Code of Alabama, which reads:

Printing or Circulating notice of boycott forbidden. — Any person, firm, corporation or, association of persons who prints, or circulates any notice of boycott, boycott cards, stickers, dodgers or unfair lists, publishing or declaring that a boycott or ban exists or has existed or is contemplated against any person, firm, corporation, or association of persons doing a lawful business, shall be guilty of a misdemeanor.

While prosecution was pending in the state court, appellants brought the present action in the United States District Court for the Northern District of Alabama, moving under 28 U.S.C. §§ 2281 and 2284 for the convening of a three-judge district court. The complaint asserted that the statute under which appellants were being prosecuted was unconstitutional and sought an injunction against its enforcement.²

On July 13, 1966, the district court ordered appellees to show cause why a preliminary injunction should not issue and ordered the state trial court to stay proceedings against appellants pending a determination on the show cause order.

On July 18, the charges pending against appellants in the state court were dismissed. Subsequently, the appellees filed a motion to dismiss appellants’ complaint in the federal court and the matter came on for a hearing on August 12. At the hearing, Mr. Boggs, the district attorney in whose jurisdiction the charges against appellants had been brought, stated that the arrests had been a “slip-up” and that he had always “avoided this boycott statute.” He stated further that civil rights workers “were not threatened in the future or in the past” by enforcement of the statute. The appellants stated that they intended to continue to pass out leaflets in the same manner as when arrested,

On September 7, the district court rendered a memorandum opinion denying appellants all relief sought and dismissing the complaint. The district court was of the opinion (1) that appellants lacked standing in that prosecutions were neither pending nor threatened’, and (2) that federal abstention should be exercised under the facts of the case.

We reverse.³

L

The recent Supreme Court decisión, Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444, confirms that the district court erred in applying the doctrine of abstention. See

Davis v. Francois, 5th Cir. 1968, 395 F.2d 730. There a state anti-handbill statute was challenged as being void for “overbreadth” and therefore violative of the first-amendment right of free speech, The lower court applied the doctrine of abstention but the Supreme Court reversed and remanded. The Court emphasized the special duty of federal courts to vindicate federal rights, espeeially when the challenge is that a statute on its face is repugnant to the first amendment. 88 S.Ct. at 395. The Court squarely held that the abstention doctrine is inappropriate for cases in which the statute is justifiably attacked on its face for an “overbreadth” that abridges free expression. Id. at 396, 399 ⁴

II.

We pass now to a consideration o;£ ac^jon be required of the district court upon remancL Generally, suits attacking the constitutionality of a state statute and seeking an injunction against jts enforcement must be heard by a three-judge district court. If, however, “prior decisions make frivolous any claim that [the] * * * state statute on its face 4is not unconstitutional,” a three-judge court is not required. Bailey v. Patterson, 1962, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (Emphasis added), Having been given an opportunity to study the dissent, we take note of the argument that under the statutory frame-work we have no alternative but to vacate and remand. We do not understand what legal doctrine limits our jurisdiction in the manner urged by the dissent. As we view it, we have assumed jurisdiction of a final decision of a district court under 28 U.S.C. § 1291. See Sehackman v. Arnebergh, supra, fn. 3; Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, fn. 3. If a substantial constitutional question were presented, we would remand for the convening of a three-judge district court as required by 28 U.S.C. § 2281. See Two Guys from Harrison-Allentown, Inc. v. McGinley, 3d Cir. 1959, 266 F.2d 427. If the claim of unconstitutionality were patently frivolous, we would direct the dismissal of the action. Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. But since prior decisions make frivolous any claim that the state statute on its face is not unconstitutional, we must direct the entry of an order to that effect. Bailey v. Patterson, supra. We are not appropriating by judicial fiat the Supreme Court’s supervisory power under 28 U.S.C. § 1253 but rather are disposing of a final decision of a single district judge (28 U.S.C. § 1291) in the way that we deem “just under the circumstances” (28 U.S.C. § 2106). In relying on Bailey v. Patterson, we cannot be subverting' the three-judge court framework because this is not a three-judge matter.

Extended discussion is hardly necessary to show the patent invalidity of a statute such as Section 56. Clearly, on its face, this statute prohibits actions protected by the First Amendment, and this overbreadth of coverage is fatal. Support for this conclusion is legion.⁵ This case, therefore, presents precisely the type of situation to which the Bailey v. Patterson holding should be applied. The issue of constitutionality can be answered merely by reading Section 56 and applying prior decisions of the Supreme Court. Furthermore, where, as here, an appellate court speaks to the merits of the controversy, the policies of federalism meant to be preserved through adjudication by a three-judge court are fully satisfied.

The state, however, points to a decision of the Alabama Supreme Court holding Section 56 constitutional. Kelly v. State, 1962, 273 Ala. 240, 139 So.2d 326. The Alabama court in Kelly stated that the printing and circulating condemned by Section 56 “is the ‘unlawful printing or circulating,’ in other words, ‘printing or circulating without just cause or legal excuse.’ ” Id. at 242, 139 So.2d at 328 (Emphasis added). This construction, it is argued, saves the constitutionality of Section 56, or, at the very least, necessitates the convention of a three-judge court for consideration of the issue.⁶ One need look no further than Thornhill v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, to see the lack of merit in this contention. In Thornhill, the Supreme Court struck down as void on its face Section 55 of Title 14, Code of Alabama, a companion statute to the section now under attack. Section 55 made criminal all picketing and boycott activities near to and directed at any lawful business “for the purpose of hindering, delaying, or interfering” with the same. That section contained the very words of qualification— “without a just cause or legal excuse”— which the Alabama court has read into Section 56. As to the effect of these words, the Supreme Court added:

The phrase “without a just cause or legal excuse” does not in any effective manner restrict the breadth of the regulation; the words themselves have no ascertainable meaning either inherent or historical.

Id. at 100, 60 S.Ct. at 743. Clearly then, an interpretation of Section 56, reading in the above words, does not alleviate its unconstitutional vagueness.⁷

We hold Section 56 of Title 14, Code of Alabama, to be unconstitutional on its face and thereby void. Appellants, therefore, are entitled to a declaratory judgment to that effect.⁸ The propriety and necessity of injunctive relief can be decided by the district court in the first instance. See Davis v. Francois, supra. We also hold that upon remand the district court need not request convention of a three-judge court, but may take all necessary action as a single judge.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

1 . Tile leaflets were hand printed and read:

DON’T BUY HERE!

This Store Does Not Hire Negroes If They Won’t Let You

Work Here Why Should You Spend Your Money Here? Buy at A & P

Fred Jones’ Store Cheatum’s Store Bill’s Dollar Store the two Eutaw drug stores SOLO

2 . The complaint alleged that § 56 is in violation of the First and Fourteenth Amendments to the United States Constitution because on its face it abridges freedom of expression and denies equal protection of the laws by denying appellants the right peaceably to demonstrate, by suppressing the dissemination of information, and by failing to establish criteria for distinguishing a lawful from an unlawful boycott. Appellants also submitted that the statute ■would seriously inhibit the future exercise of constitutionally protected rights in that the threat of criminal arrest would deter future peaceable demonstrations almost as potently as would actual arrests.

3 . Where a case involving the validity of a state statute is disposed of by a single federal district judge rather than a three-judge district court, appeal from his action is to the court of appeals. There is no direct appeal to the Supreme Court as 28 U.S.G. § 1253 provides in cases determined by a three-judge district court. Shackman v. Arnebergh, 1967, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865; Idlewild Bon Voyage Liquor Corp. v. Epstein. 1902, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794.

4 . The fact that the state prosecutions of appellants have been nolle prossed does not deprive appellants of standing. The language of the Court in Zwickler is controlling. Other cases likewise support the proposition that the mere possibility of enforcement of a statute can confer standing upon a party seeking to attack its constitutionality. See Baggett v. Bullitt, 3904, 377 U.S. 300, 303-304, 84 S.Ct. 1316, 1323-1324, 12 L.Ed.2d 377; Baldwin v. Morgan, 5th Cir. 1958, 251 F.2d 7S0, 787; University Committee to End the War in Vietnam v. Gunn, W.D.Tox.l90S, 289 F.Supp. 409; Roberts v. Clement, E.D.Tenn.1960, 252 F.Supp. 835. Cf. Hague v. C.I.O., 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Pierce v. Society of Sisters, 1925, 208 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468; Monk v. City of Birmingham, N.D. Ala.1949, 87 F.Supp. 538, aff’d, 5th Cir. 1950, 185 F.2d 859.

5 . See, e.g., Asliton v. Kentucky, 1966, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469; Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22; Smith v. People of State of California, 1960, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Winters v. People of State of New York, 1948, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Thornhill v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Hague v. C.I.O., supra; Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Guyot v. Pierce, 5th Cir. 1967, 372 F.2d 658; Carmichael v. Allen, N.D.Ga.1967, 267 F.Supp. 985.

6 . In Kelly v. State, the court relied primarily upon Lash v. State, 1943, 244 Ala. 48, 14 So.2d 229 wherein the Supreme Court of Alabama sustained the constitutionality of § 54, a companion statute which makes it a crime for two or more persons to enter into a combination for the purpose of hindering other persons from carrying on a lawful business. The qualifying'words “without a just cause or legal excuse” appeared in the statute. The court held that as a matter of Alabama law this phrase did have meaning “legally, inherently and historically” and meant “an unlawful act or purpose or without legal excuse.” In Kelly, the court read this qualifying language into § 56.

7 . Aside from being instructive as to the proper weight to be given the words “without a just cause or legal excuse,” Thornhill also gives rise to another argument against Section 56’s validity. Section 56 makes criminal the publication and circulation of literature in furtherance of any boycott activities against lawful businesses — conduct prohibited by Section 55. Since Thornhill holds Section 55 to be unconstitutionally broad, it follows that Section 56 suffers from the some defect. Surely the State cannot deem criminal all printing and circulation of literature in furtherance of any boycott activities when it cannot label as criminal all such activities themselves. Carmichael v. Allen, supra. Cf. Shuttles-worth v. City of Birmingham, 1963, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335.

8 . This bolding does not, of course, prohibit the State from seeking in a noncriminal proceeding in state court a narrowing interpretation of the statute that will meet constitutional muster. Dombrowski v. Pfister, supra, 380 U.S. at 491-492, 85 S.Ct. at 1123-1124.