Guyot v. Pierce

• Decision Date: 14 February 1967
• Docket Number: No. 22990.,22990.
• Citation: 372 F.2d 658
• Parties: Lawrence GUYOT et al., Appellants, v. M. B. PIERCE et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

372 F.2d 658 (1967)

Lawrence GUYOT et al., Appellants, v. M. B. PIERCE et al., Appellees.

No. 22990.

United States Court of Appeals Fifth Circuit.

February 14, 1967.

Alvin J. Bronstein, Jackson, Miss., Jack Greenberg, Melvyn Zarr, New York City, Henry M. Aronson, Carsie A. Hall, Jackson, Miss., John Honnold, Jr., Philadelphia, Pa., Anthony G. Amsterdam, Washington, D. C., of counsel, for appellants.

J. A. Travis, Jr., E. W. Stennett, Thomas H. Watkins, William A. Allain, Elizabeth W. Grayson, Joe T. Patterson, Atty. Gen. of Mississippi, Jackson Miss., for appellees.

Before BROWN and COLEMAN, Circuit Judges, and DAWKINS, District Judge.

COLEMAN, Circuit Judge.

This is a companion case to Strother v. Thompson, 372 F.2d 654, this day decided. This appeal challenges § 135 of the Uniform Traffic Regulation Code of the City of Jackson, Mississippi.¹ Appellants say that the Ordinance cannot be squared with Federal Constitutional standards and is thus void on its face. As the analysis to follow will reveal, we are compelled to agree.

The suit likewise challenged Jackson City Ordinance No. 594, Revised 1938. The City points out, however, that this Ordinance was repealed by the enactment of the Uniform Traffic Code, so we need consider it no further.

We are aware that § 135 was involved in a decision of this Court before another panel in National Association of Colored People, et al. v. Thompson, Mayor of City of Jackson, 357 F.2d 831 (1966), in which Judge Whitaker, Senior Judge of the Court of Claims, sitting by designation, wrote a comprehensive, well balanced opinion. In that case, however, it was contended only that the Ordinance, along with others, had been unconstitutionally applied.

The Supreme Court of Mississippi has not construed or defined the application of Ordinance 135. That Court did consider the general subject in King v. City of Clarksdale, Miss., 186 So.2d 228 (1966).² There a Clarksdale ordinance prohibiting parading or marching without the written permission of the Chief of Police, but stating no rules or standards for its application or enforcement, was unanimously held invalid as conferring upon the Chief of Police unrestricted discretion as to who shall or shall not be permitted to parade or march on the sidewalks or streets of the City, with no standards as to time, place of marching or any other feature.

As in Strother, the Mississippi Legislature was about to be convened in extra-ordinary session, in June, 1965, in an effort which met with success to relax previously existing state literacy requirements as to registering and voting. Although the special session was called for the purpose of putting an end to restrictions and limitations which, for years, these plaintiffs had vigorously opposed, they nevertheless wanted to protest the session because they claimed it was for the purpose of circumventing voting rights legislation then pending in the Congress.

After meeting in a church in the vicinity of downtown Jackson, about four hundred persons began a march to the State Capitol, where the Legislature was meeting or about to meet. Although warned that a parade permit would be needed, none was applied for. The march was principally upon the sidewalks and appears to have been orderly, at least until it was stopped. About one block from the Capitol Building the police halted the group and informed those persons at the head of the line that because they had no permit the marchers would have to disperse or be arrested. Steadfastly refusing to disperse, a large number of the marchers were arrested. From this episode, and similar ones which followed, came this litigation.

It is of interest that during the three year period immediately preceding this attempted parade without a permit there had been 13 parade permit applications filed in the City of Jackson and none had been denied. Almost half of those granted were for Negroes and/or civil rights demonstrations.

In any event, the litigation necessitates a determination of whether § 135 as presently written is unconstitutionally void on its face.

In approaching the problem we keep several indisputable principles well in mind.

First, it is our duty, if possible, to construe the Ordinance so as to avoid the conclusion of unconstitutionality. We are not to assume that in passing it the City Council intended to or did grant unto itself the right in its sole discretion to violate or disregard any rights or liberties guaranteed by the Constitution. If such had been done we would have to look no further than the decision of the Mississippi Supreme Court in King v. Clarksdale, supra.

Second, as far back as 1940 the Supreme Court of Mississippi has held that where a power is granted to a public board to be exercised at "its discretion", the grant means a legal and not an arbitrary discretion, Board of Mississippi Levee Commissioners v. Kellner, 189 Miss. 232, 196 So. 779. This was the rationale, supported by a specific decision of the Supreme Court of New Hampshire, on which the decision turned in Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396 (1941), as well as the approach taken in Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105, 30 A.L.R.2d 987 (1953).

Lastly, no Federal Court has the authority to interfere with any municipality in the promulgation and lawful enforcement of reasonable regulations for maintaining the safety and convenience of all citizens in the orderly use of its public streets and sidewalks, so long as those regulations comply with Constitutional standards. We have in mind the language of Cox v. The State of New Hampshire, supra:

"If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets".

See also Poulos v. State of New Hampshire, supra, Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Schneider v. State of New Jersey Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Cox v. State of Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965).

Thus our sole concern in this case is and can only be whether § 135 in any material particular violates or fails on its face to comply with Constitutional standards.

In Cox v. State of New Hampshire, supra, the Supreme Court phrased it this way:

"* * * the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places citations omitted."

The question may more specifically be stated as follows:

Is § 135 so vaguely and broadly written that it purports to or may be construed to, prohibit conduct, and punish offenders for conduct, which is protected by First Amendment Rights of the United States Constitution?

The latest guidance may be found in Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (May 16, 1966) wherein it was said:

"Here as in the cases discussed above ³ we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that if reachable by the police power, freedom of speech or of the press suffer. We said in Cantwell v. Connecticut, supra, that such a law must be `narrowly drawn to prevent the supposed evil,\' 310 U.S., at 307 60 S.Ct., at 905, 84 L.Ed. 1213, and that a conviction for an utterance `based on a common law concept of the most general and undefined nature,\' id., at 308, 60 S.Ct. at 905 could not stand."

For example, in the Terminiello case, the City of Chicago had a city ordinance which read as follows:

"All persons who shall make, aid, countenance or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city * * * shall be deemed guilty of disorderly conduct with punishment prescribed upon conviction."

The trial court instructed the jury that any misbehaviour which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" violated the ordinance. The Supreme Court held the ordinance invalid.

The Constitutional difficulty with § 135 most acutely appears in its prohibition against conducting or participating "in any parade or marching in which floats, banners, placards or other distracting agencies, noises, objects or vehicles are used; and for any person to engage in shouting, singing, orating, speaking, or any...