Bennett v. N.A.A.C.P.

370 S.W.2d 79, 236 Ark. 750, 1963 Ark. LEXIS 697

• Court: Supreme Court of Arkansas
• Decided: June 3, 1963
• Docket: 5-2575
• Status: Published

Opinions

Ed. F. McFaddin, Associate Justice.

This appeal poses the question of the constitutionality of four Acts adopted at the Second Extraordinary Session¹ of the 1958 General Assembly of Arkansas. The Acts adopted at that session, and here involved, are: Act No. 12, which empowered the county judge of any county to require certain organizations engaged in specified activities connected with the schools to furnish stated and required information; Act No. 13, which empowered the Attorney General of Arkansas to obtain access to the files, records, correspondence, etc. of certain organizations; Act No. 14, which added additional definitions to the crime of barratry and prescribed penalties; and Act No. 16, which added additional definitions to the crime of maintenance and prescribed penalties. The full text of each of these Acts may be found in Pages 2023 et seq. of Volume 2 of the printed Acts of the 1959 General Assembly.

The National Association for the Advancement of Colored People, joined with some of its officers, filed this suit in the Pulaski Chancery Court, seeking a declaratory judgment to the effect that each of the four Acts was unconstitutional.² The defendants in this suit were the Attorney General of Arkansas, the Prosecuting Attorney of the District of which Pulaski County is a part, and the County Judge of Pulaski County. Upon issues joined, the cause was heard ore terms, and the Chancery decree was that Acts 12, 14 and 16 were unconstitutional, and that Act No. 13 was valid. The correctness of that decree is challenged by both direct and cross appeal.³

I. A Justiciable Issue. At the outset, the Attorney General insists that this is not a proper case for a declaratory judgment because there is no effort being made by anyone to proceed against the plaintiffs (appellees) under any of these Acts. This insistence fails to meet the issue. The NAACP first filed suit in the United States District Court for the Western Division of the Eastern District of Arkansas and challenged the four Acts here involved. A three-Judge Federal Court held, on October 8,1959, that the NAACP should first proceed in the Arkansas Courts.⁴ The NAACP and the other plaintiffs then filed this present suit for declaratory judgment in the Pulaski Chancery Court, and we hold— as did the Chancellor—that a justiciable controversy is presented.

II. Acts Nos. 12, 14 and 16. The Chancery Court held each of these Acts to be unconstitutional; and we quote the Chancellor’s opinion on each of these Acts:

“ACT NO. 12.

“Act No. 12 has for its stated purpose the maintaining of law, peace and order in the administration of public schools. Briefly it provides that whenever any organization (which includes civic, fraternal, political, mutual benefit, medical, trade or other kind) engaged in ‘activities designed to hinder, harass and interfere with powers and duties of the State of Arkansas to control and operate its public schools’ the County Judge may ‘request’ that the organization file with the County Clerk certain information, under oath, revealing the name, members, officers and purposes of the organization. Assumedly an objectionable feature of the Act is the requirement that a list of the members must be made public, thus depriving the members of their asserted right to privacy. . . .

“Regardless of how laudable its purpose, Act No. 12 is too broad in its scope to meet constitutional requirements. Under its plain language, any organization which questions the State’s ‘power or duty’ in the operation of the public schools must comply with its provisions and subject its members to publication of their names. It is fundamental that every citizen has the legal and inherent right to access to the Courts to question in a lawful and peaceable manner any action of the State in the exercise of any of its powers and duties. This applies to the action of the State, not only with regards to the public schools, but to any other activity in which it may exercise its powers and duties. The effect of Act No. 12 is to subject any organization whose members desire to seek a ruling of the Court on the legality or constitutionality of the action of the State towards the public schools or with relation to the public schools to publicity which to some constitutes harassment. Any act of the Legislature which has as its purpose or effect the denial of the right of the citizen to free and untrammeled access to the Courts or which seeks by intimidation, vexation or otherwise, to discourage the exercise of that right is plainly unconstitutional. No obstacle can be legally placed between the citizen and his Court. Article 2, Section 13 of the Arkansas Constitution provides :

‘Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws. ’

“By the above language the framers of our Constitution have stated specifically that justice may be obtained without purchase and without vexation, freely and promptly. This right of the citizen cannot be infringed by legislative act. St. Louis Iron Mtn. Railway v. Williams, 49 Ark. 492; Riggs Co. v. Martin, 5 Ark. 506. ‘ ‘ There is yet another ground upon which this Act must fail. Although under Section 2 the term ‘organization’ is given a wide definition, under the provisions of Section 3 of the Act only those organizations are required to comply with the terms of that Act which are subject to the ‘request’ of the County Judge. Thus, the discretionary act of the County Judge is necessary to bring into play the provisions of the Act against any organization. The applications of the law must not depend upon the uncontrolled discretion of any public official or else there will be an unconstitutional delegation of power prohibited by Article 4, Section 1 of the Arkansas Constitution. The Arkansas Supreme Court has construed that constitutional provision to prohibit the Legislature from delegating to any public official the power to select those against whom state laws shall apply. To avoid the proscription against unconstitutional discrimination the law must apply to all persons within a named class equally and without favor or exception. It must be so complete in all of its terms and provisions when it leaves the legislative branch of the government, that nothing is left to the judgment of any appointee or delegate of the Legislature. State v. Davis, 178 Ark. 153; 11 Am. Jur. Sec. 215, p. 924.

“For the above reasons, it is the opinion of this Court that Act No. 12 is unconstitutional and invalid ?? ⁵

“ACTS NO. 14 AND 16

“Acts 14 and 16 will be considered together because they deal with subjects so inter-related that it is almost impossible to consider one without the other.

“The subject of these two Acts are ‘Champerty’, ‘Maintenance’ and ‘Barratry’.

“Act No. 14 purports to define the crime of barratry and includes nine separate sections of definitions.

“Sub-section B of Section 1 is so vague, indefinite, uncertain, yet inclusive, that it would make difficult or impossible life in a society in relation to access to the judiciary and particularly is this true under a constitutional form of government. Acts which may ‘tend to breach the peace’ are so numerous as to beg description. Our form of government guarantees to all of us the right of free and uninhibited access to the judiciary, and this certainly implies that we must not be so fearful of every day and common acts that this access to the judiciary is actually fettered because of fear. This definition tends to impair freedom of thought and action with relationship of access to the judiciary.

“The proposed definition in Sub-section C of Section 1 makes the single act of proposing that a fellow man litigate, regardless of intention or the merits of the proposed litigation, or regardless of the good intentions of the proposer, a felonious act in this society punishable by heavy fine and imprisonment. It is well established in our law today in this State that a labor union cannot sue or be sued in its own name, but must do so through the individuals or representations of the individuals within that group. It would appear to this Court that if this provision could conceivably be held valid, that this would effectively bar labor unions and other unincorporated associations from access to the judiciary; and, as previously stated, under our Constitution this cannot be done.

“Sub-section D of Section 1 is equally as invalid as are sub-sections B and C aforesaid, and for the same reasons, and in addition the Court would observe that the practice of law would be an extremely hazardous profession to pursue in face of the serious penalties imposed by the Act.

“Sub-sections F, G, H, and I of Section 1 do not ' make complete sentences or complete thoughts and for that reason define nothing.

“Act No. 16 deals with the common law crimes of maintenance and champerty, as therein greatly enlarged to include the giving, receiving, accepting of assistance or inducements to commence or prosecute any proceeding in any Court or before an administrative agency.

“Once again we call attention to the situation that unincorporated associations would find themselves inhibited, as well as many well intentioned and highly motivated people, in assisting indigent people in defending themselves against criminal charges or in prosecuting or defending civil actions. This definition goes considerably beyond, not only proprietary but constitutional limitations, and clearly violates the 14th Amendment to the Constitution of the United States and Article 2, Section 8 of the Arkansas Constitution.

“Sections 3 and 4 of Act 16 would seemingly destroy and certainly impair the power or right to make contracts between attorney and client.

“Section 5 of Act 16 provides penalties for filing-false affidavits as required in Sections 3 and 4; and among other things imposes a heavier and more severe penalty upon non-resident attorneys than it does upon resident attorneys. For this reason the Act is discriminatory and violates the equal protection clause of both the Constitution of Arkansas and the United States.

“Section 6 would require a person to appear before a grand jury and would require testimony to be given regardless of whether such testimony or evidence would tend to incriminate him. This would seem to this Court to violate the Fifth Amendment to the United States Constitution and would also clearly violate Article 2, Section 8 of the Arkansas Constitution.

“Paragraph 7 purports to exempt certain types of litigation from the provisions of Act 16; and in the opinion of this Court constitutes an unlawful classification within a class without reasonable relation and is therefore discriminatory.

“It is the opinion of this Court'that both Act No. 14 and Act No. 16 are unconstitutional and invalid.”

We have quoted the opinion of the learned Chancellor to show the care and study he gave to the issues. There is no need for us to accept or reject the reasoning of the learned Chancellor, because our Acts Nos. 12,14, and 16 were borrowed from the State of Virginia; and the Courts of that State, along with the Supreme Court of the United States, have finally destroyed the validity of these Acts. The Special Session of the General Assembly of Virginia in 1956 adopted five Chapters, from which we borrowed the language of our Acts Nos. 12, 14, and 16. In the case of National Association for the Advancement of Colored People v. Robert Y. Button, Attorney General of Virginia, 371 U.S. 415, 9 L. ed. 2d 405, 83 S. Ct. 328, Mr. Justice Brennan, in the Majority Opinion, stated that the Circuit Court of the City of Richmond held most of Chapters 31, 32, and 35 unconstitutional; and that the Supreme Court of Appeals of Virgina, in NAACP v. Harrison, 116 S. E. 2d 55, held Chapter 36 unconstitutional. So there was left only Chapter 33 on barratry and maintenance. The Supreme Court of the United States in the said Button case held the Virginia Chapter 33 to be unconstitutional; and in his concurring opinion in the Button case, Mr. Justice Douglas lists our Act as being modeled from the Virginia Act. We think the Supreme Court of the United States in the Button case has swept the foundations from under the Acts here involved; so we hold Acts Nos. 12, 14, and 16 to be unconstitutional.

III. Act No. 13. The Chancery Court held this Act No. 13 to be constitutional; but we hold that the Act is unconstitutional under the authority of the decision of the Supreme Court of the United States in Bates v. City of Little Rock, 361 U.S. 516, 4 L. ed. 2d 480, 80 S. Ct. 412. The Act No. 13 provides that if the Attorney General of Arkansas should have reason to believe that any organization was attempting to defraud the State of Arkansas of its taxes, the Attorney General might procure an ex parte order from any Chancery Court and have access to all of the files, records, correspondence, and other data of said organization.

When we consider the caption to the Act, the session at which it was adopted, and the circumstances that led to the calling of that session, we are convinced that the Supreme Court of the United States would hold that the Act was aimed at the NAACP and required a compulsory disclosure of information which was proscribed by the decision of the Supreme Court of the United States in Bates v. City of Little Rock, supra. The whole tenor of the decision in the case of NAACP v. Button leads us to the inevitable conclusion that this Act No. 13 would be promptly declared unconstitutional in line with Bates v. City of Little Rock, supra, and NAACP v. Button, supra.

It follows that all four of the Acts here involved are hereby declared' to be unconstitutional.

Holt, J., disqualified and not participating. Johnson, J. and Boyd Tackett, Special J., dissent.

1 The session convened on August 26, 1958, pursuant to a Proclamation of the Governor, which called the session “To consider and, if so advised, enact laws for the following purposes: 1. To regulate the administration and financing of public school and education, and to make appropriation for such purposes. 2. To make appropriation to pay the expenses and per diem of this Extraordinary Session of the General Assembly.”

2 The prayer of the complaint was, inter alia, for “. . . a judgment or decree declaring Acts Nos. 12, 13, 14, and 16 of the 1958 Second Extraordinary Session of the General Assembly to be unconstitutional, in that these measures deny to plaintiffs, the classes they represent, contributors, and lawyers engaged in acting in good faith, the equal protection and due process guaranteed by the 14th Amendment to the Constitution of the United States.”

3 We have delayed our decision in this case because of the pendency in the Supreme Court of the United States of the case of NAACP v. Robert Y. Button, Attorney General of Virginia, which involved a barratry statute of Virginia similar to our Acts 14 and 16. The Supreme Court of the United States decided the case of National Association for the Advancement of Colored. People v. Button, Attorney General of Virginia, on January 14, 1963. See 371 U.S. 415, 9 L. ed. 2d 405, 83 S. Ct. 328.

4 The memorandum opinion of the three-Judge Federal Court is in the transcript before us; and the Judges on that Court were Circuit Judge John B. Sanborn, and District Judges John E. Miller and J. Smith Henley.

5 The Attorney General argues in this Court that any issue about Act No. 12 is moot because—says the Attorney General—-Act No. 12 “was entirely superseded by Act No. 225 of 1959.” We find no language in said Act No. 225 which expressly or impliedly repeals Act No. 12; so we consider such argument about repeal to be beside the point at issue here.