Dombrowski v. Pfister

227 F. Supp. 556

• Court: District Court, E.D. Louisiana
• Decided: June 15, 1964
• Docket: Civ. A. 14019
• Status: Published

Opinions

FRANK B. ELLIS, District Judge.

This is a suit by James A. Dombrow-ski, Executive Director of Plaintiff Southern Conference Educational Fund, Inc. (hereinafter referred to as the SCEF) and the SCEF seeking to have declared unconstitutional LSA-Revised Statutes, Title 14, Sections 358 through 388, referred to as the Subversive Activities and Communist Control Law, and LSA-Revised Statutes, Title 14, Sections 390 through 390.5, referred to as the Communist Propaganda Control Law.

The alleged purpose of the SCEF is to (1) promote the general welfare, and (2) to improve the economic, social and cultural standards of the Southern people in accordance with the highest American democratic institutions and ideals.

Defendants are James H. Pfister, a Louisiana State Representative and Chairman of the Joint Legislative Committee on Un-American Activities of the Louisiana Legislature, Russel R. Willie, a Major in the Louisiana State Police, Jimmie H. Davis, Governor of the State of Louisiana, Jack P. F. Gremillion, Attorney General of the State of Louisiana, Thomas D. Burbank, Commanding Officer of the Division of Louisiana State Police, and Jim Garrison, District Attorney for the Parish of Orleans, State of Louisiana. All parties defendant are sued individually and in their official capacities.

Jurisdiction of the Court over the complaint is sought under Title 28, United States Code, Sections 1331(a), 1343(3) and (4), 2201 and 2202; Title 42, United States Code, Sections 1981, 1983, and 1985.

Plaintiffs basically set forth their cause of action in ten paragraphs set forth in Appendix A.

After suit was filed a petition of intervention and complaint was filed by Benjamin E. Smith and Bruce C. Waltzer (hereinafter referred to as Inter-venors). Mr. Smith is Treasurer of the SCEF and Mr. Waltzer is a “friend and supporter” of the SCEF. The petition of intervention and complaint is fully set forth in Appendix B.

Plaintiffs seek that a permanent injunction issue “ * * * restraining the defendants, their agents and attorneys from the enforcement, operation or execution of [the statutes in question] and, restraining the defendants, their agents, and attorneys from impeding, intimidating, hindering and preventing the plaintiffs or members, friends and supporters of plaintiff corporation from exercising the rights, privileges, and immunities guaranteed to them by the Constitution and laws of the United States * * The complaint terminates with a demand that a declaratory judgment issue declaring the statutes iii question void on their face, and null and void as violative of the Constitution of the United States. Plaintiffs requested that a three-judge Court be convened to hear and determine the proceeding.

Intervenors ask for similar relief and also request that Foreman of the Orleans Parish Grand Jury, the individual members thereof and the Honorable Malcolm V. O’Hara, Judge, be made parties defendant. In addendum to the complaint the intervenors ask that a permanent injunction issue restraining the Orleans Parish Grand Jury and the Judge in Charge thereof, the Honorable Malcolm V. O’Hara, from enforcing the statutes in question.

Pursuant to plaintiff’s .request, a three-judge court was convened by the Honorable The Chief Judge for the Fifth Circuit to hear and determine the controversy.

In open court, and prior to a hearing, the court ordered that the motion for leave of court to intervene be granted, there being no objection by defendants. However, the intervention, insofar as it names the Foreman of the Orleans Parish Grand Jury, the individual members thereof and the judge presently in charge of the Grand Jury, the Honorable Malcolm V. O’Hara, as parties defendant, is denied.

The first phase of this case was argued on December 9, 1963, and was limited to the constitutionality of the statutes on their face, which was decided in the affirmative by a divided court, and a second hearing was held on January 10, 1964, for the sole purpose of determining after the statute had been constitu-tionalized whether or not these plaintiffs should be granted a “full blown” trial on the merits, in an attempt to show an unconstitutional application.

In considering this application the judges in the majority have assumed to be true all of the averments made in the petition.

Generally it may be soundly said that if the statutes in question are constitutional then the State Grand Jury, its Foreman, the Judge in charge and other state law enforcement officials may validly proceed with the enforcement and operation of same; and if the statutes are unconstitutional, the proper state or federal court, upon proper application by parties affected, would be the competent forum to enjoin the enforcement and operation of the statute by all officials.

The pleadings reveal that the plaintiffs and intervenors have been engaged, among other things, in urging the southern negro to exercise his constitutional rights to vote, to attend the school of his choice, and to have and enjoy all rights which are foreclosed to him by segregation barriers. The Court would like to first point out that these endeavors, if properly sought, are praiseworthy indeed for we will never enjoy a first class democracy as long as there walks second class citizens among the nearly two hun•dred million Americans.

However, this should never operate as to bar the state from proceeding in an •orderly manner to enforce its own protective statutes, particularly where the federal government has not pre-empted the field. The State should, and does, have the right to determine in an orderly manner which organization or organizations are primarily or secondarily designed to overthrow, destroy, or to assist in the overthrow or destruction of the constitutional form of local government by violence, force or any other unlawful means.

Can we deny the State the basic right of self-preservation; the right to protect itself? If so, truly this would be a massive emasculation of the last vestige of the dignity of sovereignty. This brings us to the specific statutes in question and the injunction requested.

“Federal injunctions against state criminal statutes either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional,” Watson v. Buck, 313 U.S. 387, 400, 61 S.Ct. 962, 966, 85 L.Ed. 1416. Federal Courts traditionally have refused, except in rare instances to enjoin criminal prosecutions under state penal laws. This principal is impressively reinforced when not merely the relations between coordinate courts, but between coordinate political authorities are in issue, Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. This has been manifested in numerous decisions of the Supreme Court involving a State’s enforcement of its criminal law, e. g. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Watson v. Buck, supra; Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390.

Also see England v. Louisiana State Board of Medical Examiners, 84 S.Ct. 461, wherein Mr. Justice Douglas, in a special concurring opinion, uses the following language setting forth the circumstances under which the federal injunc-tive power has been denied.

“A federal court will normally not entertain a suit to enjoin criminal prosecutions in state tribunals, with review of such convictions by this Court being restricted to constitutional issues. Beal v. Missouri Pac. R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577. A federal court declines to entertain an action for declaratory relief against state taxes because of the federal policy against interfering with them by injunction. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407. Where state administrative action is challenged, a federal court will normally not intervene where there is an adequate state court review which is protective of any federal constitutional claim. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Alabama Public Service Comm’n v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002. The examples could be multiplied where the federal court adopts a hands-off policy and remits the litigants to a state tribunal.”

These basic principles have been qualified under exceptional circumstances to allow interference when there is a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights, Spielman Motor Sales Company v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596; Tyson & Bro. United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718; Cline v. Frink Dairy Company, 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146; City of Houston v. Jas. K. Dobbs Company of Dallas, 5 Cir., 232 F.2d 428; Morrison v. Davis, 5 Cir., 252 F.2d 102; United States v. Wood, 5 Cir., 295 F.2d 172.

Assuredly the Supreme Court did not, intend to countenance the application of this exception to the use of injunctive process by the federal system in such a way as to deprive the state and local courts of this nation in the exercise of their sovereign rights of self-protection. This Court should jealously guard these plaintiffs in their constitutional rights to equal protection of the laws, yet in our zeal to protect we should not consciously or unconsciously undermine the whole fabric of state and federal relationship as it struggles to survive its inherent constitutional posture.

The instant case postulates the basic constitutional issue whether threatened prosecution in the state courts imbued as it is with an aura of sedition or treason or acts designed to substitute a different form of local government by other than lawful means, may properly be blocked and effectively thwarted by Federal action.¹

The general rule of Watson v. Buck, supra, is to be applied where the paramount right of a state to self-preservation is at issue.

Mr. Justice Frankfurter, for the majority of the court, cautioned us in Stef-anelli v. Minard, supra, 342 U.S. at pages 123-124, 72 S.Ct. at pages 121-122, 96 L.Ed. 138, that

“[W]e would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range— would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to [the Supreme] Court to determine the issue.”

The Court will not presuppose incompetency or inability of the State Court judges to enforce federally protected constitutional rights. If the evidence has been illegally seized, it may be so declared in those courts; if the statutes in question are unconstitutional, they may be so declared by those Courts, Courts of Appeal, State Supreme Court, and an unsatisfied litigant still has ample opportunity for ultimate review by the United States Supreme Court of the federal questions involved, Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927. A three-judge federal court should not be used as a vehicle to enjoin future enforcement of state statutes, constitutional or otherwise, Watson v. Buck, supra.

Nor is the instant case similar to Aelony v. Pace and Harris v. Pace, Civil Actions Nos. 530 and 531 respectively, Middle District of Georgia, decided Nov. 1. 1963,-F.Supp.-, for those cases involved the enjoining of a threatened prosecution under the Georgia “Insurrection Statute” which has been held unconstitutional in its application in Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066, and the “Unlawful Assembly Statute” which had just recently been held unconstitutionally vague in Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349.² The Aelony and Harris cases involved the purely unconstitutional situation of a defendant being held without bail for a misdemeanor.³

It was said by Mr. Justice Holmes in The Saeco-Vanzetti Case, Transcript of the Record 5516, that “[t]he relation of the United States and the Courts of the United States is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years and cannot be disposed of by a summary statement that justice requires me to cut red tape and to intervene.”

This brings us first to the narrow question of supersession, that is, or whether the State of Louisiana can investigate, indict and prosecute for sedition, subversion, or communist activity directed against the state or local government.

First of all the statutes differ from the others found in Title 14 of the Louisiana Revised Statutes, better known as the Louisiana Criminal Code, in that the balance of the Code deals with the protection of the individual member of society, whereas, the statutes under consideration deal solely with the protection of the constitutional form of local government chosen collectively by all of the members of society.

Louisiana is not the only state in the Union with sedition or treason or subversive activities and communist control laws. [See Appendix C]

Com. of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, involved the first such statute to be subjected to constitutional interpretation. Defendant-Respondent Steve Nelson, an acknowledged communist, was convicted under Section 207 of the Pennsylvania Penal Code, commonly referred to as the Pennsylvania Sedition Act which pro.scribed sedition against the State of Pennsylvania and the United States. He was sentenced to imprisonment for twenty years and was ordered to pay a fine of '$10,000.00 and to pay the costs of prosecution in the sum of $13,000.00. The •Superior Court affirmed and the Supreme •Court of Pennsylvania reversed on the narrow issue of supersession of the state law by the Federal Smith Act, 18 U.S. •C.A. § 2385.

The United States Supreme Court affirmed, “[s]ince we find that Congress has occupied the field to the exclusion ■of parallel state legislation, that the dominant interest of the Federal Government precludes state intervention, and "that administration of state Acts would •conflict with the operation of the federal plan, we are convinced that the decision of the Supreme Court of Pennsylvania is unassailable.” Com. of Pennsylvania v. 'Nelson, supra, 350 U.S. at page 509, 76 'S.Ct. at page 484, 100 L.Ed. 640.

Thus it appeared that the federal government had completely pre-empted the field of sedition against the State and Federal Governments.⁴ The question then arose as to whether the “exclusion •of parallel state legislation precluded the ■state from protecting itself from sedition.” ⁵

The question was laid to rest in Up-haus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090:

“In Nelson itself we said that the ‘precise holding of the court * * * is that the Smith Act * * * which prohibits the knowing advocacy of the overthrow of the government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act which proscribed the same conduct.’ (350 U.S. at 499 [76 S.Ct. at 478, 100 L.Ed. 640]) The basis of Nelson thus rejects the notion that it stripped the States of the right to protect themselves. All the opinion proscribed was a race between federal and state prosecutors to the courthouse door. The opinion made clear that a State could proceed with prosecutions for sedition against the State itself; that it can legitimately investigate in this area follows a fortiori.” (360 U.S. at 76, 79 S.Ct. at 1044, 3 L.Ed.2d 1090) (Italics supplied)

“Nor did our opinion in Nelson hold that the Smith Act had proscribed state activity in protection of itself either from actual or threatened ‘sabotage or attempted violence of all kinds.’ ” (360 U.S. at 77, 79 S.Ct. at 1044, 3 L.Ed.2d 1090) ⁶

Thus it would appear that the state may validly proceed with prosecutions of sedition, treason, subversive activities and communist activities, carried on within the State and directed at the State alone.⁷ It is unnecessary, therefore, and this court will not pass on the constitutionality of the Communist Propaganda Control Law and will also leave to the State Courts the questions of unfounded search warrants and warrants of arrest, improper use by the Joint Legislative Committee of the documents allegedly improperly seized, etc.

If the action taken by this Court on January 10, 1964, is construed as validating the Communist Control Act as to its constitutionality this action is, of the Court’s own motion, hereby vacated, the Court here refraining from taking any action in advance of appropriate proceedings in the State Courts at the State level. All these matters we commit to the hands of the state criminal tribunals who are equally competent to conscientiously apply protected constitutional rights, subject, of course, to proper supervision by the State Appellate-level courts and the United States Supreme Court.

A very recent case dealing with the State’s overriding and compelling interest and how it is affected by the Fourteenth Amendment is Jordan v. Hutch-eson, 4 Cir., 323 F.2d 597, wherein it was pointed out that:

“When the court does act under the Fourteenth Amendment it must weigh the state’s interest in the product of this effort against the interest of the citizen in his constitutional rights. Only if the state’s interest is overriding and compelling will the courts condone an invasion of those rights for which the plaintiffs here seek protection.” (Footnote omitted)

The case at bar presents one of the most basic and compelling interests that the state could have, i. e. the basic interest of self-preservation and the right to enforce this interest in a lawful manner, through its grand juries and district attorneys, the organic law of the state protecting it against subversion and treason where directed against the state alone.

Moreover, the Jordan case, supra, dealt with an injunction directed to a state legislative committee as distinguishable from the instant case which strikes at the very heart of the state’s organic authorities dealing with law and order.

It has also been urged upon us that this very court has declared LSA-Revised Statutes 14:385 as unconstitutional, State of La. ex rel. Gremillion v. NAACP, D.C., 181 F.Supp. 37, probable jurisdiction noted, 364 U.S. 869, 81 S.Ct. 112, 5 L.Ed. 2d 90, affirmed 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301. The Court would like to point out that that case involved-the unconstitutional application of the-statutes to the National Association. for Advancement of Colored People, a valid, lawful, private activity. Whether or not. these statutes may be constitutionally applied to an invalid, unlawful, secret activity remains an open question which we likewise commit into the hands of the-state tribunals.⁸

During the first hearing of the matter it was indicated that the court would' hear the arguments on the motion to-quash and on the constitutionality of the-act insofar as the face of it was concerned. It was determined that if the Court should hold the statute constitutional on its face that there would be-another hearing for the reception of evidence. A second hearing was held on the-question of whether a full trial would be permitted to show unconstitutional application.

The Court is of the opinion that a hearing for the admission of evidence is not necessary where only questions of law are presented, and where plaintiff’s1 allegations for the purpose of this motion were admitted to be true and' would not either in law or in fact entitle-him to injunctive relief, Securities & Exchange Commission v. Graye, D.C., 156 F.Supp. 544; Schlosser v. Commonwealth Edison Company, 7 Cir., 250 F.2d 478, cert. den. 357 U.S. 906, 78 S.Ct. 1150, 2 L.Ed.2d 1156; Cf. Sewell v. Pegelow, 4 Cir., 291 F.2d 196, and if a hearing reveals that plaintiff has not stated a claim-upon which relief can be granted, and cannot state such a claim, the court may dispose of the case finally by dismissing the complaint. Mast, Foos & Company v. Stover Mfg. Co., 177 U.S. 485, 20 S.Ct. , 44 L.Ed. 856, and that is what this court proposes to do.

Plaintiffs argued vociferously that the Court should hold a special hearing for the reception of evidence that these statutes, if constitutional, have been unconstitutionally applied as to them. This court will not gainsay the rule that evidence has been frequently admitted to show unconstitutional application of statutes. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301; Gibson v. Florida, 372 U.S. 539, 83 S.Ct. 889, 9 L. Ed.2d 929; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; but here the very vitals of our constitutional system of government are on the line.

The reception of evidence is a double-edged blade. It will cut to the quick both ways. If plaintiffs are permitted to introduce evidence of an unconstitutional application of the statutes, respondents would certainly be entitled to follow with evidence that the individual plaintiff is a Communist and that the corporate plaintiff is a Communist-fronted organization, and that the statute, as applied, was a constitutional application. In effect, these litigants, plaintiffs, defendants and inter-venors, would indulge in a Star Chamber proceeding with all the “foldorol” and publicity attendant therewith.

For the good of all it is to be hoped that this case will reach the Supreme Court so that the matter of State-Federal relations in the judicial field may be clarified. If the federal district judges are to act as a police force to ride herd over state and municipal courts then we had best be so instructed and the matter for once and for all laid to rest along with a vital part of the state judicial system already weakened by a constant federal encroachment in both the statutory and judicial fields.

This country was nurtured to maturity by leaders who, in the nineteenth century, constantly alerted the people of this nation to the danger of giving preferential treatment to any one branch of our three-pronged governmental system over the other. Apprehension was expressed by Jefferson when he stated:

“The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot, and in alarming advance, gaining ground step by step, and holding what it gains, is engulfing insid-uously the [State] governments into the jaws of that which feeds them.” Thomas Jefferson to Spencer Roane (1821)

We must stride forward at all times to purify our democracy but let it not be said that the judiciary functioning as both a court and a congress took away inherent rights from one group, religious, ethnic, etc., in our society in order to bestow it upon another. All should be treated alike.

The application for the injunction will be denied and the suit dismissed, each party to bear its own costs, for failure to state a claim upon which relief can be granted.

WEST, District Judge, concurs.

APPENDIX A

THE CAUSE OF ACTION AS ALLEGED IN THE COMPLAINT

11. The defendants herein, under col- or of certain statutes of the State of Louisiana, have allegedly entered into a plan or conspiracy with other persons to the plaintiffs unknown to subject or cause to be subjected the plaintiffs, citizens of the United States, to the deprivation of rights, privileges and immunities secured to them by the Constitution and laws of the United States.

12. Pursuant to this plan or conspiracy the defendants have attempted to and threaten to continue to attempt to prosecute the individual plaintiffs under the color and authority of certain state statutes, namely LSA-Revised Statutes 14 :- 358 et seq. and 14:390 et seq.

13. Defendants Pfister and Willie, so say the plaintiffs, without proper legal authority, attempt to institute the prosecution of the individual plaintiffs by obtaining on October 2, 1963, certain warrants of arrest as well as search warrants based upon sworn affidavits alleging that the plaintiffs had conspired to violate the aforementioned statutes. These arrest and search warrants were served and acted upon by police officers under the control of the defendants herein. Despite the fact that the warrants of arrest were summarily vacated by a state Criminal District Court for the Parish of Orleans which gave the plaintiffs, without delay, the full relief sought upon a holding that there was no probable cause for the issuance of the warrants, defendant Pfis-ter nevertheless threatened and continues to threaten to attempt to obtain new prosecutions of the plaintiffs and to hold legislative hearings under the same statutes.

14. It is averred that on Friday, November 8, 1963, the Joint Legislative Committee on Un-American Activities of the Louisiana Legislature held an “open hearing” in Baton'Rouge, Louisiana, at which hearing defendant Pfister, as well as counsel for the said committee, Rogers, utilized photostats of certain documents seized on October 4, 1963, under the alleged authority of the aforesaid search warrants. The Committee thereupon adopted a resolution naming plaintiffs corporation as a “communist front” and further calling upon defendant Garrison to prosecute officials of this corporation including plaintiff Dombrowski, under the provisions of the statutes herein cited. Pfister and Rogers have further publicly announced their intention of delivering to Garrison copies of documents illegally seized from the plaintiffs for the purpose of presenting the said copies to the Orleans Parish Grand Jury and for institution of criminal proceedings under the same statutes.

15. It is alleged that LSA-Revised Statutes 14:358 through 14:388 and LSA-Revised Statutes 14:390 through 14:390.5 are void and illegal on their face as applied to the plaintiffs herein, in that they violate the Constitution of the United States and in particular the First, Fourth, Fifth, Eighth and Fourteenth Amendments thereto. These state statutes violate the fundamental guarantees of free speech, press, assembly and the right to petition the government for a redress of grievances. They violate the guarantee of due process of law in that they are vague and indefinite and fail to meet the requirements of certainty in criminal statutes. They violate the prohibitions against ex post facto legislation and bills of attainder and represent an unconstitutional delegation of legislative power, all in violation of the Constitution of the United States.

16. The aforesaid state statutes are likewise void and illegal and of no force or effect in that they invade areas preempted to the exclusive jurisdiction of the United States by statutes and laws enacted by the Congress of the United States.

17. Pursuant to the aforesaid conspiracy and plan the defendants have threatened and continue to threaten to enforce the said unconstitutional void and illegal state statutes against the plaintiffs herein for the sole purpose of subjecting and causing to be subjected the plaintiffs and the members, friends and supporters of the plaintiff corporation to the deprivation of rights, privileges and immunities secured to them by the Constitution and laws of the United States.

18. The plaintiffs and the members, friends and supporters of the plaintiff corporation have been attempting through peaceful and non-violent means to achieve the elimination of all forms of racial segregation in the states of the South and the State of Louisiana and to assist and encourage Negro citizens to exercise their rights to register and vote in federal and state elections. These objectives are specifically protected and guaranteed by the Constitution of the United States and the Thirteenth, Fourteenth and Fifteenth Amendments thereto. In their constant efforts to achieve these constitutionally protected efforts, the plaintiffs and the members, friends and supporters of the plaintiff corporation have been attempting to exercise rights guaranteed under the First and Fourteenth Amendments to freedom of speech, press, assembly and association and the right to assemble, associate and petition for a redress of grievances.

19. Unless this Court restrain the operation and enforcement of these void, invalid and unconstitutional state statutes, the plaintiffs, and the members, friends and supporters of the plaintiff corporation will suffer immediate and irreparable injury.

The sole purpose, intention and effect of threatening to enforce said statute is to deter, intimidate, hinder and prevent the plaintiffs and the members, friends and supporters of plaintiff corporation from exercising their fundamental constitutional rights guaranteed under the First and Fourteenth Amendments in their efforts to enforce the equality under the law guaranteed by the Thirteenth, Fourteenth and Fifteenth Amendments.

It is prayed that unless this court restrains the operation and enforcement of these void, invalid and unconstitutional state statutes, the plaintiffs and the members, friends and supporters of the plaintiff corporation will continue to suffer the most serious, immediate and irreparable injury in that they will continue to be deterred, intimidated, hindered and prevented from exercising elementary and fundamental Federal constitutional rights.

It should be noted that the only time these plaintiffs sought relief in a state tribunal the relief was forthwith granted by the state criminal district court.

APPENDIX B

PETITION OF INTERVENTION AND COMPLAINT

The petition of intervention and complaint of Benjamin E. Smith and Bruce C. Waltzer, plaintiffs in intervention for their verified petition allege that:

I.

Benjamin E. Smith and Bruce C. Waltzer are both citizens of the State of Louisiana and the United States of America and are attorneys at law admitted to practice before the State and: Federal bars;

II.

That plaintiffs in intervention, Benjamin E. Smith and Bruce C. Waltzer,. both were illegally arrested on the same-date as plaintiff, James A. Dombrowski,. and under color of warrants of arrest similarly drawn as to those affecting; James A. Dombrowski;

III.

That records and confidential legal files-belonging to plaintiffs in intervention,. Benjamin E. Smith and Bruce C. Waltzer;. were illegally seized under color of search: warrants similarly drawn as to those affecting James A. Dombrowski and Southern Conference Educational Fund, Inc.;

IV.

That plaintiffs in intervention, Benjamin E. Smith and Bruce C. Waltzer are also under threat of imminent prosecution and harassment by Legislative bodies under color of authority granted' in LSA — Revised Statutes 14:358 et seq-,. and 14:390 et seq. and are further under-imminent danger of having action takem by the duly constituted Grand Jury for-the Parish of Orleans.

Petitioners are plaintiffs in intervention and show that after their illegal arrest they applied to the Criminal District Court for the Parish of Orleans for a preliminary hearing pursuant to State-Law under proceedings entitled Benjamin E. Smith, et al. versus State of' Louisiana, et al., No. 181-975, Section-. “E”; that said hearing was held upon-, their application and the Judge of the-said Court discharged plaintiffs in intervention for the reason that no legal evidence was adduced sufficient to bind them; over and further no legal evidence was-adduced sufficient to justify the issuanee-of the warrants of arrest previously mentioned herein;

That James A. Dombrowski filed a similar pleading in the State Court which was consolidated for hearing with the-pleadings filed by Benjamin E. Smithi and Bruce C. Waltzer and James A. Dom-browski was similarly discharged.

Plaintiff in intervention, Benjamin E. Smith, serves as Treasurer of Southern Conference Educational Fund, Inc., while James A. Dombrowski serves as its Executive Director. Plaintiff in intervention, Bruce C. Waltzer is a friend and supporter of Southern Conference Educational Fund, Inc., and has appeared as such at some of its public functions.

Plaintiffs in intervention, Benjamin E. Smith and Bruce C. Waltzer as attorneys at law have represented and counselled the legal interest of Southern Conference Educational Fund, Inc.

For their verified complaint, plaintiffs in intervention, Benjamin E. Smith and Bruce C. Waltzer allege:

That they adopt all of the allegations contained in the petition entitled James A. Dombrowski & Southern Conference Educational Fund, Inc., versus James H. Pfister, Russel R. Willie, Jimmie H. Davis, Jack P. F. Gremillion, Colonel Thomas D. Burbank, Jim Garrison;

Further, that they are informed and believe that various documents and confidential legal files seized from them have been subpoenaed by the Grand Jury for the Parish of Orleans and that the said Grand Jury could meet momentarily for purposes of returning either indictments or No True Bills under 14:358 et seq. and 14:390 et seq., which statutes plaintiffs in intervention, Benjamin E. Smith and Bruce C. Waltzer reiterate are unconstitutional on their face;

That plaintiffs in intervention, Benjamin E. Smith- and Bruce C. Waltzer are informed and believe that the Honorable Malcolm V. O’Hara, Judge of the Criminal District Court, presently in charge of the Orleans Parish Grand Jury, has pursuant to the said aforementioned statutes, which plaintiffs reiterate are unconstitutional, instructed the Grand Jury for the Parish of Orleans to investigate whether there are or have been any violations under the said statutes;

Plaintiffs in intervention Benjamin E. Smith and Bruce C. Waltzer aver that it is necessary not only that they be permitted to intervene in this suit, but that they be permitted to join as parties defendant the Foreman and individual members of the Orleans Parish Grand Jury, namely: Messrs. Harry Plant, Foreman, John Leslie Bonnett, John Don-elson Eagan, Andrew F. Gonczi, Jr., Rufus Louis Matthews, John Thomas McNamara, George Josiah Marsh, Joseph Hillary Morvant, Lloyd H. Pierre, James Craig Roth, Robert Mallard Seago, Sr., and Edward Alvis Hodge and the Honorable Malcolm V. O’Hara, Judge of the Criminal District Court, who is presently in charge of the Orleans Parish Grand Jury.

APPENDIX C

ALABAMA

Code of Alabama, Title 14, Sections 22(1) and 22(2), Sections 97(1) through 97(8).

ALASKA

Sedition Act, Alaska Statutes 1962, Section 11.50.010 et seq.

ARIZONA

Arizona Revised Statutes, Title 16, Sections 205 and 206.

ARKANSAS

Arkansas Statutes, Title 41, Sections 4125 through 4131.

CALIFORNIA

California Codes, Title 5, Chapter 1, Sections 35000-35007.

COLORADO

Colorado Revised Statutes, Chapter 40, Article 23, Section 7.

CONNECTICUT

Conn.Gen.Stat.Ann. Title 53, Sections 1 through 8.

DELAWARE

Delaware Code Annotated, Title 11, Chapter 3, Subchapter LII, Sections 861 through 863.

FLORIDA

Florida Statutes Annotated, Title 44, Chapter 876, Sections 1 through 4, F.S.A.

GEORGIA

Georgia Code Annotated, Title 26, Chapter 9A, Sections 901a through 912a.

HAWAII

Revised Laws of Hawaii, Title 40, Chapter 361, Sections 1 through 12.

IDAHO

Idaho Constitution, Article 5, Section 5.

ILLINOIS

None.

INDIANA

Burns Indiana Statutes, Title 10, Chapter 52, Sections 5201 through 5209.

IOWA

Iowa Code Annotated, Chapter 689, I.C.A.

KANSAS

Corrick’s General Statutes, Chapter 21, Article 3, Sections 301 through 308.

KENTUCKY

Kentucky Revised Statutes, Chapter 432, Section 010 et seq.

LOUISIANA

LSA-Revised Statutes, Title 14, Sections 358 through 388 and 390 through 390.5.

MAINE

Revised Statutes of Maine, Chapter 143, Section 4.

MARYLAND

Michie’s Annotated Code of Maryland, Article 85A, Sections 1 through 19.

MASSACHUSETTS

Massachusetts General Laws Annotated, Chapter 264, Sections 16 through 23.

MICHIGAN

Rice’s Michigan Statutes Annotated, Title 28, Chapter 84, Sections 812: through 813(4), Comp.Laws 1948, Supp.1956, §§ 750.544-750.545d.

MINNESOTA

Minnesota Constitution, Article 1, Section 9.

MISSISSIPPI

Mississippi Code Annotated, Sections. 4194.01 through 4194.10.

MISSOURI

Missouri Revised Statutes, Chapter 562.

MONTANA

Smith’s Revised Code of Montana, Chapter 44, Sections 4401 through 4410.

NEBRASKA

Revised Statutes of Nebraska, Title 28, Article 7(i), Sections 747 through 750.

NEVADA

Nevada Constitution, Article 1, Section 19.

NEW HAMPSHIRE

New Hampshire Revised Statutes Annotated, Chapter 588, Sections 1 through 16.

NEW JERSEY

New Jersey Statutes Annotated, Title 2A, Chapter 148, Articles 1 through 5.

NEW MEXICO None.

NEW YORK

McKinney’s Consolidated Laws of New York, c. 40, Penal Code, § 2380.

NORTH CAROLINA

Michie’s General Statutes of North Carolina, Chapter 14, Articles 3 through 3A.

NORTH DAKOTA

North Dakota Constitution, § 19; North Dakota Code Annotated, Title 12, Chapter 7, Section 1 et seq.

OHIO

Baldwin’s Ohio Revised Code & Service, Title 29, Chapter 2921, Sections 1 through 27.

OKLAHOMA

Oklahoma Statutes Annotated, Title 21, Chapter 52, Sections 1266.1 through 1266.11 and 1267.1 through 1267.2.

OREGON

Oregon Constitution, Article I, Section 24.

PENNSYLVANIA

Purdon’s Pennsylvania Statutes, Title 18, Section 3811.

RHODE ISLAND

General Laws of Rhode Island, Title 11, Chapter 43, Sections 11 through 14.

SOUTH CAROLINA

Code of Laws of South Carolina, Title 16, Chapter 9, Sections 581 through 589.

SOUTH DAKOTA

South Dakota Code, 13.0701.

TENNESSEE

Tennessee Code Annotated, Title 39, Chapter 44, Sections 4405, 4420 through 4423.

TEXAS

Vernon’s Texas Civil Statutes, Title 120A, Article 6889-1.

UTAH

Utah Constitution, Article 1, Section 19.

VERMONT

Vermont Statutes Annotated, Title 13, Chapter 67, Section 3405.

VIRGINIA

Code of Virginia, Title 18, Chapter 8, Article 1, Sections 418 through 422.

WASHINGTON

Revised Code of Washington Annotated, Title 9, Chapter 81, Sections 10 through 130j.

WEST VIRGINIA

West Virginia Code of 1961, Sections 5908 et seq.

WISCONSIN

West’s Wisconsin Statutes Annotated, Section 946.03.

WYOMING

Michie’s Wyoming Statutes, Title 9, Chapter 3, Section 693 through 699.

End

1 . None of the oases cited involved so fundamental an element of state sovereignity as that of self-preservation, e. g. Spielman contested the New York Code of Fair Competition for the Motor Vehicle Retailing Trade; Terrace contested a Washington law forbidding aliens from owning land; Packard contested a New York law requiring motor carriers to post a bond; Tyson contested a New York law forbidding resale of tickets to tbe theatre, etc., as a price in excess of fifty cents of its printed value; Cline tested the Colorado Anti-Trust Act; City of Houston involved an ordinance forbidding the sale of food to airlines by other than franchised concessionaires; Morrison involved the desegregation of the New Orleans public transit system; and Wood involved voter intimidation.

2 . It is significant to note that the Herndon and Wright cases both found their way to the United States Supreme Court via the state courts, and not by the flanking-movemont to a three-judge federal district court.

3 . The dissenting opinion, per Judge Elliott, correctly points out that the equity powers of a federal court should not be invoked to interfere by injunction with threatened criminal prosecutions in a state court. He further states that “ * * * I would require the assessment of reasonable bail in those instances where no bail has been assessed. I would impinge no further upon the prerogatives of the state courts. * * *” After stating that the constitutionality of the same statutes were then pending before the Supreme Court of Georgia, he continues, “ * * * For us at this time to deal with the same questions about to be considered by the Supreme Court of the state strikes me as being an unwarranted interference with an embarrassment to the state court proceedings and a breach of those principles of comity historically governing the relations between the courts of the states and the courts of the United States.”

4 . The Nelson subsequently received critical comments of the prevailing view in various law journals, 6 Am.U.L.Rev. 53; 6 Do Paul L.Rev. 155; 30 So.Cal.L.Rev. 101; 10 Vanderbilt L.Rev. 144; 31 Washington L.Rev. 300.

5 . Subsequently and upon the strength of Nelson, the Louisiana Supreme Court declared an entire package of State Legislation on Communist Control as unconstitutional, see State v. Jenkins, 236 La. 300, 107 So.2d 648.

6 . After tlie Upbaus decision the Louisiana Legislature enacted the statutes in question deleting the prohibitive language making it a crime to advocate the overthrow of the United States Government. Act 270 of 1962, LSA-R.S. 14:358-388.

7 . This is also the prevailing view expressed in a number of legal periodicals, e. g. 73 Harvard L.Rev. 163; 20 Louisiana L.Rev. 599; 28 Geo. Washington L.Rev. 461; 38 Texas L.Rev. 334.

8 . See People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184, wherein the Court held constitutional a similar statute curtailing the activities of the Klu Klux Klan stating that the First Amendment does not protect associations for unlawful purposes.