227 F.Supp. 556 (E.D.La. 1964), Civ. A. 14019, Dombrowski v. Pfister

Docket Nº:Civ. A. 14019
Citation:227 F.Supp. 556
Party Name:Dombrowski v. Pfister
Case Date:February 20, 1964
Court:United States District Courts, 5th Circuit, Eastern District of Louisiana

Page 556

227 F.Supp. 556 (E.D.La. 1964)

James A. DOMBROWSKI et al.


James H. PFISTER, Individually, Etc., et al.

Civ. A. No. 14019.

United States District Court, E.D. Louisiana.

Feb. 20, 1964,

Probable Jurisdiction Noted June 15, 1964, See 84 S.Ct. 1881.

Page 557

Milton E. Brener, New Orleans, La., and Kunstler, Kunstler & Kinoy, New York City, A. P. Tureaud, New Orleans, La., for plaintiffs.

Robert J. Zibilich and Hubert, Baldwin & Zibilich, New Orleans, La., for Benj. E. Smith and Bruce C. Waltzer, intervenors.

Jim Garrison and William A. Porteous, III, Asst. Dist. Atty., New Orleans, La., for Jim Garrison, individually and as Dist. Atty. in and for the Parish of Orleans, State of La.

Jack N. Rogers, Baton Rouge, La., for Jas. H. Pfister.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., John E. Jackson, Jr., Asst. Atty. Gen., Baton Rouge,

Page 558

La., for Jimmie H. Davis, Jack P. F. Gremillion, Thos. D. Burbank, R. R. Willie.

Before WISDOM, Circuit Judge, and ELLIS and WEST, District Judges.

FRANK B. ELLIS, District Judge.

This is a suit by James A. Dombrowski, 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 Intervenors). 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 in 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

Page 559

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 constitutionalized 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 of 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 hundred 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 injunctive 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.

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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....

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