Cason v. City of Jacksonville

• Decision Date: 26 July 1974
• Docket Number: No. 73-3102.,73-3102.
• Citation: 497 F.2d 949
• Parties: Yvonne Gwendolyn CASON, Individually and On Behalf of All Others Similarly Situated, Plaintiff-Appellee, v. CITY OF JACKSONVILLE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

497 F.2d 949 (1974)

Yvonne Gwendolyn CASON, Individually and On Behalf of All Others Similarly Situated, Plaintiff-Appellee, v. CITY OF JACKSONVILLE et al., Defendants-Appellants.

No. 73-3102.

United States Court of Appeals, Fifth Circuit.

July 26, 1974.

J. B. Stoner, Marietta, Ga., for W. Eugene Wilson.

Ralph W. Nimmons, Jr., Frederick J. Simpson, Asst. Gen. Counsel, Jacksonville, Fla., for City of Jacksonville.

William J. Gibbons, Deitra Micks, Lawrence J. Figur, Steven Mark Goldstein, Jacksonville, Fla., for plaintiff-appellee.

Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The District Court entered a preliminary injunction prohibiting the City of Jacksonville from permitting the National State's Rights Party (NSRP) — a lily-white group — from using the Little Theatre of the City's Civic Auditorium for its annual convention "so long as the Party's membership policies discriminate on the basis of race or color." The City and NSRP each appeal. The case, simple enough to state, presents awesome problems as First and Fourteenth Amendment rights collide. We vacate and remand to the District Court with directions to (i) dismiss the City of Jacksonville as a defendant for lack of jurisdiction, (ii) allow Appellee to amend her complaint to name the appropriate City officials over whom jurisdiction would exist under 42 U.S.C.A. § 1983 and (iii) to determine and then enter specific findings of fact as to whether the meeting in issue was intended to be a purely private meeting or one open to the public at large.

The City leases the Theatre on a first come first served basis to all applicants. The City entered into an agreement to lease the Theatre to NSRP for the Party's annual convention scheduled for June 23, 1973.

Appellee Cason brought this class action on behalf of black taxpaying citizens of Jacksonville who desired to attend the National State's Rights Party's meeting against the City of Jacksonville and J. M. Johns, as representative of the Party¹ alleging that she would be denied access to the meeting in the public building on account of her race and would therefore be deprived of her right to equal protection of the laws guaranteed by the Fourteenth Amendment. She requested either that she and all members of the public be allowed to attend the Party meeting and that the City provide necessary law enforcement officers to ensure the public safety or alternatively that the City be enjoined from leasing the Theatre to NSRP.

A hearing on the preliminary injunction was held the day before the meeting was scheduled. It was stipulated that NSRP, "is a self-procliamed white racist Christian organization",² bars blacks from becoming members, the scheduled meeting would be open only to NSRP members and invited guests, invited guests are individuals who have been invited through the "Thunderbolt" (a party publication distributed by mail) and invited guests would not vote at the meeting.

Without reaching the First Amendment issues raised by NSRP, the District Court enjoined the City from permitting NSRP to use the Little Theatre on the grounds that in view of the Party's discriminatory membership policies, such use would violate the equal protection clause of the Fourteenth Amendment and the 1960 permanent injunction entered against the City in Hampton v. City of Jacksonville, No. 4368-Civ-J, December 7, 1960, prohibiting the City from operating or leasing public recreational facilities on a discriminatory basis.³

Before getting to our disposition on the merits we must, as often, face a jurisdictional problem. In Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, the Court held that the District Court did not have jurisdiction over a § 1983 damage claim against the City of Chicago since a City is not a person within the meaning of § 1983.⁴

In Harkless v. Sweeny Independent School District, 5 Cir., 1970, 427 F.2d 319 we distinguished Monroe and held that a "municipality"—in that case a school district—was a "person" within § 1983 for the purpose of equitable relief. In justifiable reliance on Harkless, Appellee Cason based her claim for relief and jurisdiction on §§ 1983 and 1343(3)⁵ and named as defendant the City of Jacksonville rather than any of the appropriate individual City officials. Subsequent to the issuance of the preliminary injunction but prior to oral argument the Supreme Court in City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 rejected the Harkless distinction and held that a municipality is not a person within § 1983 whether for damages or equitable relief and therefore a federal District Court does not have jurisdiction to enjoin a city pursuant to § 1983.

Since the injunction in issue runs against the City proper we must vacate for lack of jurisdiction. Even in the wake of Kenosha it is of course clear that appropriate individual city officials are persons within § 1983 and may properly be named as defendants.⁶ United Farm Workers of Florida Housing Project, Inc. v. City of Delray Beach, 5 Cir., 1974, 493 F.2d 799. Considering the posture in which the jurisdictional issue was injected into this litigation and the fact that we deem it proper to vacate and remand to the District Court for further evidence and findings, it is likewise appropriate that the District Court allow Appellee Cason to substitute the appropriate municipal officials charged with executing the duties under attack.

On the merits the case is one, or at any rate close to one, of noble principles on a collision course. See 33 U.S. C.A. §§ 146(2), 201, 341a. NSRP girds its loins with the First Amendment and its guaranteed right of freedom of association and expression of ideas—those palatable as well as obnoxious. Cason, for the class of black citizens taking as Buckler and Shield the equal protection clause of the Fourteenth Amendment, claims that permission by the state for use of public facilities by a particular race or sect and the exclusion of others for reasons of race, or color, is a denial of that right.⁷ The City, caught in the middle, presumably takes a middle ground that mandated state-action-equal-protection does not compel overriding free assembly rights of others.

In the arguments before us each undertakes to find the answer to this constitutional riddle in two cases.⁸

The closest in factual setting is the en banc decision of the Fourth Circuit in National Socialist White People's Party v. Ringers, 1973, 473 F.2d 1010 (en banc).⁹ The second, closer to home but further removed in fact, is ours in Gilmore v. City of Montgomery, 5 Cir., 1973, 473 F.2d 832¹⁰ and, since that time, the Supreme Court's action on certiorari, 1974, ___ U.S. ___, 94 S.Ct. 2416, 40 L.Ed.2d ___.

We do not think we should either try to draw the Equal Protection/First Amendment line or elucidate some principle of accommodation or in doing so embrace or reject Ringers. Before we adjudicate that problem of transcendent significance we should be certain that we are doing so in the light of a real Article III case and controversy on facts which really are, not what some one supposes or says them to be. Byer v. Byer, 5 Cir., 1958, 254 F.2d 205.

The arguments of counsel highlighted what we do not know and the likely significance one way or the other of the fact once found. What we do not know¹¹ is whether this meeting was a purely private meeting or one to be open to the public.¹²

If it were closed to all save NSRP members and specifically invited guests the result might be one thing.¹³ On the hypothesis that the meeting was in fact intended to be a bona fide private meeting it would be necessary to determine whether an organization with racially discriminatory membership policies could constitutionally be allowed to hold such a meeting in a public facility.

If, on the other hand, the Court finds that the meeting would have in fact been open to non-members but limited to the white public at large, we can say without reservation that the District Court's injunction would be entirely proper. If the meeting was not intended to be a private meeting at all but was to be open to the public at large whether white or black, then Appellee's request for admission to the meeting would dissolve but we would then have the problem decided by the Fourth Circuit (see note 12).

The fact that we require the District Court to make a factual finding as between the two possible types of use of the facilities is not intended to suggest that our ultimate decision of the law will necessarily depend upon the distinction made by the trial court. We simply pretermit this question until the record is completed.

Although this Court will, as it always has, face up to resolution of the potential conflict between the First Amendment right to associate in a public forum and the Fourteenth Amendment right to be free from racially discriminatory state action, the very shape of the issues as well as their resolution will be dependent upon the specific facts. Accordingly, we regard an ascertainment by the District Court of the public/private character of the intended meeting as a prerequisite to further constitutional adjudication.

The judgment is vacated and the cause remanded for further evidentiary hearing, findings of fact, conclusions of law and other action consistent with this opinion.

Vacated and remanded.

1 The signer and negotiator of the lease on the Party's behalf.

2 The NSRP membership application espouses both its political character and its beliefs:

The National States Rights Party is by far the largest White Racist political Party in America. Both Democratic and Republican Parties have betrayed the White People of America. The NSRP is the last hope of the Whiteman to save our White Christian Civilization.

The NSRP is the only political Party vigorously defending White Rights throughout America today. Gain the personal satisfaction of knowing that you are...