Cameron v. Johnson , 262 F. Supp. 873 ( 1966 )

COLEMAN, Circuit Judge.

This is the. second time this case has been before this Court for hearing and decision. Invoking Title 42, U.S.C. §§ 1971, 1983, and 1985, the plaintiffs originally filed their complaint on April 13, 1964, against the governor of Mississippi and various officials in Forrest County, Mississippi. They sought a declaratory judgment and injunction, attacking the constitutionality of House Bill No. 546 of the Laws of Mississippi of 1964.¹ By appropriate amendments, the suit became a class action and plaintiffs seek to enjoin the prosecutions already begun as well as the future enforcement of the statute.

The first hearing was before Circuit Judge Rives and District Judges Mize and Cox. Upon full hearing, relief was denied. The findings of fact, conclusions of law, and opinion of the Court are reported at 244 F.Supp. 846 (1964).

Judge Rives dissented, being of the view that it would be “difficult to conceive of a statute drawn in broader or more vague and sweeping terms than that here under attack. In my opinion, the statute is so clearly unconstitutional that this case is hardly ‘one required * * * to be heard and determined by a district court of three judges.’ [citing authorities].” Moreover, he was of the opinion that the doctrine of abstention should not have been invoked and that the plaintiffs were clearly entitled to an injunction.

Upon appeal to the Supreme Court, the judgment was vacated, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715 (June 7, 1965). The case was remanded “for reconsideration in the light of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct.1116, [14 L.Ed.2d 22].” We were given the following specific directions:

“On remand, the District Court should first consider whether 28 U.S.C. § 2283 (1958 ed.) bars a federal injunction in this case, see 380 U.S., at 484, n. 2, 85 S.Ct. [1116], at 1119. If § 2283 is not a bar, the court should then determine whether relief is proper in light of the criteria set forth in Dombrowski.”

Mr. Justices Black, Harlan, Stewart, and White dissented, 381 U.S., beginning at p. 742 and concluding at p. 759, 85 S.Ct. 1752-1761.

Upon the death of Judge Mize, the present writer was designated to serve in his stead.

In the meantime, the criminal prosecutions here sought to be enjoined were removed from the State Court to the United States District Court for the Southern District of Mississippi. That Court remanded the cases (approximately 48 in number). This was appealed. The United States Court of Appeals for the Fifth Circuit affirmed the remand, sub. nom. Hartfield et al. v. State of Mississippi, 363 F.2d 869 (July 21, 1966), the Court being of the opinion that the order should be sustained on the authority of City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944.

On September 23, 1966, this Court stayed the criminal prosecutions in the State courts until such time as the instant proceedings are finally heard and determined.

In the meantime, on October 15, 1965, we heard further proof and oral arguments on behalf of the parties. Later, the plaintiff and the defendants filed written briefs.

We now come to a consideration of the questions which the Supreme Court directed this Court to answer.

I

FACTS

Before giving our views of what the answers should be, we allude briefly to the facts. We do not disturb, of course, the findings of fact already made by the Court as they appear in 244 F.Supp. at 847.² *****8 Pursuant to the hearing of October 15, 1965, we supplementally find the following to have been established by the evidence:

These plaintiffs, after arrest on the courthouse grounds, were charged in the State court substantially in the language of the statute. The blocking of the sidewalks and entrances and interfering with the free use of the courthouse sidewalks and entrances was the gravamen of the offense. We do not sit in this proceeding to determine the guilt or innocence of the plaintiffs but it may be said that we are here to determine whether there is substantial cause in law and fact supporting the right of duly constituted state authorities to have these questions of guilt or innocence determined by appropriate criminal prosecution.

In any event, from all the evidence, including testimony of witnesses on the stand, we find that for many days prior to the arrest and prosecution here in question these complainants and others, carrying banners proclaiming their views, marched around the entire courthouse building. The Sheriff, charged by law with the custody of the courthouse and its grounds, requested the leaders to limit their march to the south half of the front of the courthouse and around the narrow concrete walks at the northwest corner of the building, fronting northerly on North Main Street. For many days, the demonstrators honored this request. Then, a larger group appeared and began marching so close together that they blocked certain vital entrances to the courthouse, particularly the entrance to the Cooperative Extension Service, a function in which the United States participates. At last, on April 10, 1964, the Sheriff read the statute to the participants and warned them that if they violated it he would have no choice but to arrest them. Those participating in the picketing conferred among themselves for most of the night, obtained legal advice, and decided to march on the courthouse grounds the next day. We find that there was no harassment, intimidation, or oppression of these complainants in their efforts to exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that part of the statute which denounces interference with the orderly use of courthouse facilities by all citizens alike.

This brings us face to face with the validity or invalidity of Section 2318.5 of the Mississippi Code, and we consider only the questions which the Supreme Court was of the view that we should consider in determining the fate of this litigation.

II

Does 28 U.S.C.A. § 2283³ deny this Court the power to enjoin these criminal prosecutions ? We think it does.

At the outset, the Supreme Court directed our attention to note 2, 380 U.S. at 484, 85 S.Ct. 1116, 14 L.Ed.2d 22. This was a note to the opinion of the Court in Dombrowski v. Pfister, supra, which will be set out in the margin.⁴ 4

Dombrowski sought injunctive and declaratory relief prior to arrest or prosecution, it being alleged that such was threatened to harass the plaintiffs and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana. Note 2 at p. 484 of 380 U.S., p. 1119 of 85 S.Ct., contains the following specific language, “this statute [§ 2283] and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bar stays of suits already instituted”. The footnote continued, however, to the effect that it was unnecessary to resolve the question of whether suits under 42 U.S.C. § 1983 (1958 ed.) come under the “expressly authorized” exception to § 2283.

In Hill v. Martin, 296 U.S. 393, at 403, 56 S.Ct. 278 at 282, 80 L.Ed. 293, (1935) the Supreme Court (opinion by Mr. Justice Brandéis) referred to the provisions of this Section, then § 265, as a prohibition, saying:

“The prohibition of section 265 is against a stay of ‘proceedings in any court of a State.’ That term is comprehensive. It includes all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process. It applies to appellate as well as to original proceedings; and is independent of the doctrine of res adjudicata.”

Leaving aside any dissertation on “jurisdiction” or “comity”, we think the plain language of the statute means what it says and constitutes a positive direction by Congress which this Court should obey. The 1948 Revisors did not change the mandatory language as above expounded by the Supreme Court.

Since this Court rendered its first decision, the Fourth Circuit Court of Appeals has decided Baines v. City of Danville, 337 F.2d 579, August 10, 1964.

Section 2283 was there thoroughly analyzed. The authorities were exhaustively examined. It was held that the section is a limitation on the exercise of the equity jurisdiction of District Courts. The Court declined to enjoin prosecutions pending for violation of ordinances of the City of Danville. It was held that 42 U.S.C. § 1983 does not create an exception to the anti-injunction statute.

We, therefore, are of the opinion that § 2283 of Title 28, U.S.C., prohibits this Court from enjoining or abating the criminal prosecutions instituted against the plaintiffs prior to the filing of the suit for injunction.

We are of the further opinion, following the decision in Baines, that § 1983, 42 U.S.C., creates no exception to this anti-injunction statute.

The prayer that this Court enjoin or abate the pending prosecutions will be denied.

The matter does not end here, however, for Baines held that restraints upon future prosecutions are beyond the reach of § 2283. No doubt this principle is what prompted the second portion of the directions from the Supreme Court, which may here be restated as follows:

Applying the principles of Dombrowski, did State conduct in this case justify declaratory or injunctive relief against further enforcement of the statute?

We answer this question in the negative.

We accept as correct the statement of plaintiff’s counsel appearing at page seven of his excellent brief that:

“Dombrowski sets forth two separate and distinct categories of circumstances in which the exercise of federal equity power to restrain state criminal prosecutions is appropriate. The first * * * relates to situations in which state statutes are challenged on their face as ‘overly broad and vague regulations of expression’ * * *. [The second] is actually threatened prosecutions under the statute.”

The posture of this case necessitates discussion only of the first category.

We therefore deal only with the contentions of plaintiffs that the statute is so broad, vague, indefinite, and lacking in definitely ascertainable standards as to be void on its face.

We think it is as specific and definite as the Florida statute sustained against such an attack in Adderley et al., Petitioners v. State of Florida, 1966, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149. That statute denounced “Every trespass upon the property of another, committed with a malicious and mischievous intent * * * The Florida Court defined a malicious act as one done knowingly and wilfully and without any legal justification.

House Bill 546 of the Laws of Mississippi does not prohibit picketing or mass demonstrations on courthouse grounds. The prohibited factor is the obstruction or unreasonable interference With free ingress or egress to and from the courthouse.

In Adderley, the Supreme Court expressed the following observations:

“The sheriff, as jail custodian, had power, as the state courts have here held, to direct that this large crowd of people get off the grounds”, and “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”, and

“The United States Constitution does not forbid a State to control the use of its own property for its own lawful non-discriminatory purpose”.

The record shows that these plaintiffs for about three months had been picketing the courthouse and they had not been arrested because they picketed in space which did not interfere with the normal use of courthouse facilities by all citizens alike, regardless of color or other consideration.

April eleventh, however, was another matter. The Legislature passed a law attempting to prescribe some order to these activities, not really interfering with plaintiffs even on courthouse grounds so long as they did not interfere with others. The record shows that these individuals, though “frightened” as they claimed, deliberately came to a contest of wills with the sheriff, who had lawful custody of the premises, who had a duty to enforce the statute, and who had a duty to see that they obeyed it. Plaintiffs knew what they were doing, they knew what the statute proscribed, but they went ahead.

Plaintiffs, in their very able and brilliantly written brief, argue that the addition of the word “unreasonably” to the statute made it even more vague and indefinite, but we disagree. The word “unreasonable” seems to have been well understood by the founders of the Republic when they used it in the Fourth Amendment, where it remains, and is enforced, as it should be, to this day.

Plaintiffs also say that the action of City (not County) authorities in permitting the use of the streets for school parades and the like, a practice customarily enjoyed by the community as a part of ordinary community activities, participated in by all races, constitutes selective enforcement of the statute and thus invalidates it. We cannot agree with this argument. We are not here dealing with parades carried on by common consent on the public streets. We here confront picketing on the courthouse grounds in such manner as to interfere with the use of the courthouse by other citizens who had an equal right to its use.

We hold that under all the facts and circumstances of this case the principles announced in Dombrowski have not been brought into play, that injunctive or declaratory relief as to future enforcement of the statute is not justified.

By way of epilogue, there are other important reasons, in the exercise of judicial discretion in equity, for declining injunctive or declaratory relief in this case. The plaintiffs allege that they were picketing the courthouse grounds for the purpose of obtaining the right to vote and to encourage others to do so. Since this controversy arose, the people of Mississippi, pursuant to Resolutions of the Legislature, in the summer of 1965, went to the polls and overwhelmingly amended the State Constitution to eliminate all literacy tests for voting, except the ability to read and write. By the Voting Rights Act of 1965, Congress eliminated the use of any literacy test in the State of Mississippi during the next five years. Federal Registrars were provided. In South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 883, 15 L.Ed.2d 769, the Supreme Court upheld the validity of this federal legislation. The right of any Mississippi citizen, of lawful age and not a convict of felony, to vote is now beyond all controversy or unrest. Picketing to obtain the vote or to encourage others to do so is a thing of the past.

This opinion shall constitute our Findings of Fact and Conclusions of Law as provided by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.

An Order may be submitted dismissing the Complaint.

1 . HOUSE BILL NO. 546

AN ACT to prohibit the unlawful picketing of state buildings, courthouses, public streets, and sidewalks.

Be it enacted by the legislature of the state of Mississippi:

Section 1. It shall be unlawful for any person, singly or in concert with others, to engage in picketing or mass demonstrations in such a manner as to obstruct or [unreasonably] interfere with free ingress or egress to and from any public premises, State property, county or municipal courthouses, city halls, office buildings, jails, or other public buildings or property owned by the State of Mississippi or any county or municipal government located therein or with the transaction of public business or administration of justice therein or thereon conducted or so as to obstruct or [unreasonably] interfere with free use of pub-lie streets, sidewalks or other public ways adjacent or contiguous thereto.

Section 2. Any person guilty of violating this act shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than Five Hundred Dollars ($500.00), or imprisoned in jail not more than six (6) months, or both such fine and imprisonment.

Section 3. This act shall take effect and be in force from and after its passage.

NOTE: The word “unreasonably” in brackets in the text was added by amendment to the Statute on July 9th, 1964.

House Bill 546 became Chapter 343 of the Laws of 1964, later codified as § 2318.5 of the Mississippi Code of 1942, annotated.

2 . In summary, at pp. 848 and 849 of 244 F.Supp., the findings were:

1. There was no evidence that there was a plan or a conspiracy on the part of defendants or in the enactment of the statute to suppress, deter, impede or violate any constitutional right of the plaintiffs to free speech, assembly, to

register, to vote, or to demonstrate peacefully and lawfully;

2. The plaintiffs deliberately and intententionally blocked the sidewalk and one of the entrances to the Courthouse; and

3. The prosecution for violation of § 2318.5 is in good faith.

3 . Section 2283, 28 U.S.C.

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. June 25, 1948, c. 646, 62 Stat. 968.

4 . 28 U.S.C. § 2283 (1958 ed.) provides that:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

The District Court did not suggest that this statute denied power to issue the injunctions sought. This statute and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bar stays of suits already instituted. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.714. See generally Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345, 366-378 (1930); Note, Federal Power to Enjoin State Court Proceedings, 74 Harv.L.Rev. 726, 728-729 (1961). Since the grand jury was not convened and indictments were not obtained until after the filing of the complaint, which sought interlocutory as well as permanent relief, no state “proceedings” were pending within the intendment of § 2283. To hold otherwise would mean that any threat of prosecution sufficient to justify equitable intervention would also be a “proceeding” for § 2283. Nor are the subsequently obtained indictments “proceedings” against which injunctive relief is precluded by § 2283. The indictments were obtained only because the District Court erroneously dismissed the complaint and dissolved the temporary restraining order issued by Judge Wisdom in aid of the jurisdiction of the District Court properly invoked by the complaint. We therefore find it unnecessary to resolve the question whether suits under 42 U.S.C. § 1983 (1958 ed.) come under the “expressly authorized” exception to § 2283. Compare Cooper v. Hutchinson, 184 F.2d 119, 124 (C.A.3d Cir. 1950), with Smith v. Village of Lansing, 241 F.2d 856, 859 (C.A. 7th Cir. 1957). See Note, 74 Harv.L. Rev. 726, 738 (1961).