Dresner v. City of Tallahassee, Florida

• Decision Date: 02 December 1963
• Docket Number: No. 35,35
• Parties: Israel DRESNER et al., Petitioners, v. CITY OF TALLAHASSEE, FLORIDA
• Court: U.S. Supreme Court

375 U.S. 136

84 S.Ct. 235

11 L.Ed.2d 208

Israel DRESNER et al., Petitioners,

v CITY OF TALLAHASSEE, FLORIDA.

No. 35.

Argued Oct. 23, 1963.

Decided Dec. 2, 1963.

Howard Dixon, Miami, Fla., and Carl Rachlin, New York City, for petitioners.

Edward J. Hill and Roy T. Rhodes, Tallahassee, Fla., for respondent.

PER CURIAM.

Considering that there are questions of Florida law answers to which are necessary to enable this Court to determine its jurisdiction over this cause, and with respect to which there appear to be no precise controlling precedents in the decisions of the Supreme Court of Florida, this Court desires to certify to the Supreme Court of Florida, pursuant to Rule 4.61 of the Florida Appellate Rules, 31 F.S.A., the questions stated hereafter.

The petitioners have been tried and convicted in the Municipal Court of Tallahassee for unlawful assembly, under a municipal ordinance which incorporates by refer- ence the state unlawful assembly statute.¹ The convictions were affirmed in the Circuit Court of the Second Judicial District, Leon County, Florida.² The unre- ported opinion of that court, a copy of which, taken from the record, is attached to this certificate as an Appendix, contains a statement of the facts on which the convictions rested. The petitioners sought certiorari in this Court, which the City of Tallahassee opposed on the ground, inter alia, that the judgment of the Circuit Court was not 'rendered by the highest court of a State in which a decision could be had,' as required by 28 U.S.C. § 1257. This Court granted certiorari, 372 U.S. 963, 83 S.Ct. 1087, 10 L.Ed.2d 128, and subsequently directed counsel to file briefs on the jurisdictional issue, which counsel have done.

The questions which this Court desires to certify are:

1. On a timely petition for writ of certiorari or other process, does the Florida District Court of Appeal or any other court of Florida have jurisdiction to review a judgment of the Circuit Court affirming a conviction in the Municipal Court of a violation of a municipal ordinance which incorporates a state statute by reference, where the questions presented for review concern the federal constitutionality of the ordinance on its face and as applied?

2. If the District Court of Appeal or any other court of Florida does have such jurisdiction and had granted review in this case by way of a writ of certiorari or other process, would it have been empowered to consider fully each of the following contentions, all indisputably properly preserved:

(a) 'Petitioners were peaceable and orderly at all times; hence, there was no evidence whatsoever to support the convictions below for unlawful assembly, and therefore Petitioners have been denied due process of law under the Fourteenth Amendment';

(b) 'The convictions constituted a violation of Petitioners' rights of freedom of speech and freedom of assembly as guaranteed by the Fourteenth Amendment' (c) 'The arrests and convictions herein constituted an undue burden on interstate commerce in violation of the interstate commerce clause of the Federal Constitution';

(d) 'The arrests and convictions herein constituted a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment'?

If not, in what respects would the scope of review have been limited?

The Clerk of this Court is directed to transmit this certificate, signed by The Chief Justice and under the official seal of the Court, to the Supreme Court of Florida, and simultaneously to transmit copies thereof to the attorneys for the respective parties.

APPENDIX.

OPINION OF THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, LEON COUNTY, FLORIDA.^*

Order Affirming Judgments.

This is an appeal from convictions in the Municipal Court of the City of Tallahassee, Florida of the ten appellants named in the caption who were charged with unlawful assembly. A fine was assessed against each of them with an alternative jail sentence.

The formal charge is in a single count naming the ten appellants and three others¹ as defendants and alleges an unlawful assembly on June 16, 1961 'in that, they being more than three (3) persons, met together to commit a breach of the peace, acting together and concertedly to occupy and continuously occupy certain chairs and seating facilities in the Tallahassee Municipal Airport, making and cancelling group airline reservations on the two (2) operating airline schedules departing Tallahassee on said date, and on June 15, 1961, and meeting together in concert attendant with circumstances calculated to excite alarm, endanger the public peace and excite fear, and in such nature as to inspire well-grounded fear in persons of reasonable courage, of riot, or other breaches of public peace, and while so unlawfully assembled' were commanded by a police officer of the city, after identifying himself as such, to immediately and peaceably disperse, and they refused or neglected to do so.

The appellants contend that the judgments pursuant to convictions violate their rights guaranteed by the Florida and United States Constitutions in that they have been denied the equal protection of the laws and have been deprived of liberty or property with ut due process of law. They contend that the state statute, Chap. 61—237, Laws of 1961, (F.S. § 870.04, F.S.A.), (which, by reference adoption in a municipal ordinance,² is made an ordinance of the City of Tallahassee) is unconstitutional and void, either on its face or as it has been applied to the appellants in this case.

The pertinent portions of the statute, adopted as an ordinance, are:

'If any number of persons * * * are unlawfully, riotously or tumultuously assembled in any * * * city or municipality * * * any * * * police officer of said city or municipality * * * shall go among the persons so assembled * * * and shall in the name of the state command all the persons so assembled immediately and peaceably to disperse; and if such persons do not thereupon immediately and peaceably disperse, said (officer) shall command the assistance of all persons in seizing, arresting and securing such persons in custody; and if any person present * * * when required by such (officer) to depart from the place, refuses or neglects to do so, he shall be deemed one of the * * * persons unlawfully assembled, and may be prosecuted and punished accordingly.'

The facts in the case are not in dispute and squarely present the question as to whether or not the conduct of the appellants was an exercise by them of rights they hold under state and federal constitutional provisions, which would preclude their prosecution, conviction and sentence for unlawful assembly in the trial court.

The appellants are clergymen, two being rabbis and the others being ordained ministers of several Protestant denominations. They are residents of New Jersey, New York, Massachusetts or Connecticut. Some of them are of the white race and some are negroes. About June 12 or 13, 1961 they, together with eight other clergymen from the same general area, departed from Washington, D.C. by interstate common carrier bus for a so-called 'Freedom Ride' into Virginia, the Carolinas, Georgia, and Florida. The bus ride terminated in Tallahassee June 15, 1961. The 'Freedom Riders' left their buses at the Greyhound bus terminal there and went into the terminal lunch room to obtain food which was served them.

This trip was sponsored and at least partially financed by an organization known as CORE (Congress on Racial Equality) which has been aggressive in promoting racial integration and desegregation. The trip was well publicized, having been given wide coverage in all news media including radio and television. The time and place of arrival in Tallahassee was heralded and well known.

The purposes of the 'Freedom Ride', as stated by appellant Collier, who was the spokesman for the group, were two-fold: (1) To ascertain whether or not there were facilities available on an integrated basis to interstate passengers in waiting rooms, in rest rooms, in eating facilities in the terminals through which they would pass; and (2) To bear witness as ministers, rabbis and clergymen to the struggle to obtain those rights 'guaranteed us by the Constitution.'

Shortly prior to the time the buses bearing the 'Freedom Riders' were scheduled to arrive at about noon on June 15, there had gathered in the vicinity of the bus station a number of persons and groups of persons. Law enforcement officers, including city police, had been dispatched to the area to prevent any disturbance. It was suspected that resentment against the 'Freedom Riders' might result in some attempts at violence toward them or precipitate other disorders. When the buses arrived, law enforcement personnel moved in any gave protection to the passengers as they left the bus and entered the lunch room in the terminal. Apparently they were served in the lunchroom under circumstances and pol cies satisfactory to them.

In approximately an hour after arrival at the bus terminal the eighteen 'Freedom Riders' proceeded to the Tallahassee Municipal Airport ostensibly for the purpose of boarding a 3:25 P.M. Eastern Air Lines plane for passage to Washington, Newark, or New York. They were transported to the airport in private cars presumably furnished by local sympathizers with their objectives.

Upon arrival at the airport they found that the restaurant there had been closed. When the time approached for arrival of the 3:25 plane the ten appellants cancelled the reservation they had previously made for the flight. The other eight boarded the plane when it arrived and departed for their destinations in the East.

At that time, the airport arrangement provided separate waiting rooms, or areas, for white and negro; also separate rest rooms; and separate areas for serving food, the white area being a glassedin place and the negro consisting of a counter with several stools. However, as mentioned before,...