432 F.2d 333 (6th Cir. 1970), 20314, Honey v. Goodman

Docket Nº:20314.
Citation:432 F.2d 333
Party Name:Mike HONEY and Martha Allen, Appellants, v. Jon GOODMAN, Shelby M. Howard, and J. W. Shines, Appellees.
Case Date:October 09, 1970
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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432 F.2d 333 (6th Cir. 1970)

Mike HONEY and Martha Allen, Appellants,


Jon GOODMAN, Shelby M. Howard, and J. W. Shines, Appellees.

No. 20314.

United States Court of Appeals, Sixth Circuit.

October 9, 1970

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[Copyrighted Material Omitted]

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Robert Sedler, Lexington, Ky., for appellants, William H. Allison, Lexington, Ky., Robert E. Delahanty, Louisville, Ky., on brief.

Robert D. Simmons, Bowling Green, Ky., for appellees, Allender, Simmons & Robertson, Bowling Green, Ky., on brief.

Before CELEBREZZE, Circuit Judge, O'SULLIVAN, Senior Circuit Judge, and KALBFLEISCH, District Judge. [a1]

CELEBREZZE, Circuit Judge.

This is an appeal from an order of the United States District Court for the Western District of Kentucky dismissing a complaint filed by Mike Honey and Martha Allen, members of the Kentucky Chapter of the Southern Committee Against Repression, against Jon Goodman, Shelby M. Howard, and J. W. Shines, the county attorney for Hart County, Kentucky, the Commonwealth attorney for the Tenth Judicial District of Kentucky, and the Jailer of Hart County, Kentucky, respectively. The complaint was dismissed sua sponte, on the court's own motion, and without a

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hearing. The complaint sought the convocation of a three-judge district court to declare the Kentucky common law offense of embracery unconstitutional, 28 U.S.C. §§ 2281 & 2284 (1964), and an injunction against a state court proceeding pending against the Appellants for violation of the law by mailing letters to certain residents of Hart County, Kentucky during the pendency of a criminal prosecution of six individuals implicated in the Louisville race riots of 1968, 42 U.S.C. § 1983 (1964). The District Court dismissed the complaint on its belief that the federal anti-injunction statute, 28 U.S.C. § 2283 (1964), left it powerless to grant the injunctive relief prayed for. Jurisdiction of the District Court had properly been invoked under 28 U.S.C. § 1343(3) & (4) for the alleged violations of 42 U.S.C. § 1983 (1964). Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). The complaint raises issues hitherto undecided by this Court or the United States Supreme Court under sections 2283 and 1983. For the reasons that follow, we reverse.

This cause having come before this Court on a dismissal, the allegations of the complaint must be taken as true, and any legitimate inferences arising therefrom must be construed in favor of the Appellants. See Jenkins v. McKeithen, 395 U.S. 411, 423-424, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959); Taylor v. Kentucky State Bar Association, 424 F.2d 478, 480 (6th Cir. 1970). The complaint states that on January 1, 1970, the Appellants, in their capacities as coordinators of the Kentucky Chapter of the Southern Committee Against Repression, sent letters to some 1200 residents of Hart County, Kentucky, whose names were listed in the Hart County Telephone Directory. The letter protested the fact that the trial of six individuals on charges of conspiring to destroy private property during Louisville's civil disorders in May 1968, had been transferred from Louisville (Jefferson County) to Hart County, as a result of prejudicial pre-trial publicity. The letter provided:

(Dated) January 1, 1970

To: Citizens of Hart County Dear Friends,

On January 5 (1970) six black people from Louisville are being brought to trial in Hart County. The State claims that these people caused the Louisville uprising of '68. This is a lie.

The prosecutor in Louisville knows he doesn't have evidence for a conviction, and that is why he is dumping this case on you. He seems to think that the citizens of Hart County will convict these six people without any evidence.

Many people in Louisville are angry about this prosecution. They are angry because City and State officials are trying to make scapegoats of these six people. These officials are trying to make fools of you by moving the case from Louisville to Munfordville.

Don't be fooled. The same problems that exist in Jefferson County exist in Hart County, and they will not be solved by such shenanigans. The politicians are trying to jail these six people because they spoke up about unemployment, bad housing, poverty and racism. If they can be jailed for speaking their minds, so can you.

The politicians are trying to make fools of all of us. They tell us that social problems are our fault-- not theirs. They try to use the race question to keep black and white divided. We are angry about all of this. We hope you are angry too. Enclosed is a folder about some of the things we are doing to protest this injustice. We urge you to protest against this trial being pushed off on you.

Yours very truly, (signed) Mike Honey & Martha Allen Mike Honey and Martha Allen Coordinators, Kentucky Chapter Southern Committee Against Repression

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On January 5, 1969, the opening day of the January Term of the Hart County Circuit Court, the Circuit Judge stated to a Grand Jury which had been convened that the sending of this letter constituted a 'heinous crime.' He stated that the sending of the letter constituted the common law offense of embracery which the Appellees Goodman and Howard would explain to the Grand Jury. Finally, he stated that 'he would find out who was responsible for the sending of the letter even if this necessitated the cooperation of the United States Post Office.' Following this instruction to the Grand Jury, the Circuit Judge stated that he would return the case of the 'Black Six' to Jefferson County as a result of the sending of the letters. Appellee Goodman, the county attorney, publicly stated to the press that he would seek criminal indictments against the signers of the letters.

At the time the letters were sent, no date for the trial of the 'Black Six' had been set, and members of the petit jury for the January term of the Hart Circuit Court had not been selected.

On January 7, 1970, the Hart County Grand Jury returned an indictment charging the common law offense of embracery against the Appellants. The indictment stated:

'On or about January 1, 1970, in (Appellants) caused to be delivered $ (Appellants$) caused to be delivered a letter designed to unlawfully harass, corrupt, predudate (sic), intimidate or otherwise improperly influence citizens of Hart County, Kentucky, namely Harold Glenn Wilson, Shirley Stewart, H. B. Gaddock, Henry Daniels, who had been summoned to be a member (sic) of the Circuit Court Jury Panel, a portion of which would hear and decide the guilt or innocence of the defendants known as * * * (the 'Black Six') against the peace and dignity of the Commonwealth of Kentucky.'

On January 20, 1970, the Appellants filed suit in the District Court to enjoin their prosecutions under the indictment. In its essentials, the complaint makes two claims. First, it alleges that the Kentucky common law offense of embracery is unconstitutional on its face and as applied against them. Second, the complaint alleges that the prosecutions for embracery were instituted in bad faith, with no real hope of ultimate success, for the sole purpose of deterring, intimidating, harassing, and punishing the Appellants for their expression of unpopular ideas, and to prevent the Appellants and discourage others, in the future, from exercising their First Amendment right 'to criticize the administration of justice.'

In their first claim for relief, the Appellants requested that a three-judge district court be convened to issue a declaratory judgment with respect to the constitutionality of the Kentucky common law misdemeanor of embracery. The District Court's refusal to grant this 'extraordinary' relief was justified if their claim did not raise a 'substantial constitutional question.' Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Taylor v. Kentucky State Bar Association, 424 F.2d 478, 480 (6th Cir. 1970) and cases cited therein.

The Kentucky Court of Appeals has, apparently, discussed the crime of embracery in only two reported decisions. Brown v. Beauchamp, 21 Ky.Law Rep. 268, 269 (1827); Commonwealth v. Denny, 235 Ky. 588, 31 S.W.2d 940 (1930). In the first of these, the court defined the crime as:

'where one attempts to corrupt, or influence, or instruct a jury, or any way to incline them to be more favorable to the one side or the other, by money, letters, promises, threats, or persuasions, except only by the strength of evidence, and the arguments of counsel in open court at the trial of the cause.' Brown v. Beauchamp, supra, 21 Ky.Law Rep. at 269.

In the second of these cases, the court purportedly broadened the reach of the crime by defining 'jury,' or 'jurors,'

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as persons who may have been selected for jury duty, as, for example, by having their names drawn from a jury wheel, but who have not been impaneled or sworn to serve on any particular case. Commonwealth v. Denny, supra, 31 S.W.2d at 942. 1 Assuming, without deciding, that Commonwealth v. Denny does expand the common law of embracery to include prejudicial conduct towards prospective jurors, the infirmity of the indictment in that case is not present in the instant case: at least one of the four individuals named in the indictment as having received the letter mailed by the Appellants had been summoned for jury service for the January Term of the Hart County Circuit Court.

The Appellants argue that they may not be punished by the Commonwealth of Kentucky for their expression of controversial ideas in a manner akin to 'pure speech.' We disagree. Although the First and Fourteenth Amendments forbid the making of any law 'abridging the freedom of speech, or of the press,' states may punish for embracery by letter, or any other crime applicable to the exercise of pure speech, where it is...

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