Kirkland v. Wallace

Decision Date22 October 1968
Docket NumberNo. 24296.,24296.
Citation403 F.2d 413
PartiesAdell KIRKLAND, as mother and next friend of Libbie Kirkland, an infant, et al., Appellants, v. George C. WALLACE, as Governor of the State of Alabama, et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Alvin J. Bronstein, Jackson, Miss., Donald A. Jelinek, Selma, Ala., for appellants.

Gordon Madison, Asst. Atty. Gen., Montgomery, Ala., for appellees.

Before TUTTLE, THORNBERRY and GODBOLD, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant Kirkland, a 16-year old Negro resident, and appellants Tyler and Felber, white civil rights workers, were arrested while distributing leaflets upon a public sidewalk in Eutaw, Alabama, on July 9, 1966. The leaflets concerned alleged discriminatory employment practices of local businesses and urged members of the Negro community to trade only with those merchants who hired Negroes.1 Appellants were charged with violation of Section 56 of Title 14, Code of Alabama, which reads:

Printing or Circulating notice of boycott forbidden. — Any person, firm, corporation or association of persons who prints, or circulates any notice of boycott, boycott cards, stickers, dodgers or unfair lists, publishing or declaring that a boycott or ban exists or has existed or is contemplated against any person, firm, corporation, or association of persons doing a lawful business, shall be guilty of a misdemeanor.

While prosecution was pending in the state court, appellants brought the present action in the United States District Court for the Northern District of Alabama, moving under 28 U.S.C. §§ 2281 and 2284 for the convening of a three-judge district court. The complaint asserted that the statute under which appellants were being prosecuted was unconstitutional and sought an injunction against its enforcement.2

On July 13, 1966, the district court ordered appellees to show cause why a preliminary injunction should not issue and ordered the state trial court to stay proceedings against appellants pending a determination on the show cause order.

On July 18, the charges pending against appellants in the state court were dismissed. Subsequently, the appellees filed a motion to dismiss appellants' complaint in the federal court and the matter came on for a hearing on August 12. At the hearing, Mr. Boggs, the district attorney in whose jurisdiction the charges against appellants had been brought, stated that the arrests had been a "slip-up" and that he had always "avoided this boycott statute." He stated further that civil rights workers "were not threatened in the future or in the past" by enforcement of the statute. The appellants stated that they intended to continue to pass out leaflets in the same manner as when arrested.

On September 7, the district court rendered a memorandum opinion denying appellants all relief sought and dismissing the complaint. The district court was of the opinion (1) that appellants "lacked standing" in that prosecutions were "neither pending nor threatened", and (2) that federal abstention should be exercised under the facts of the case.

We reverse.3

I.

The recent Supreme Court decision, Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444, confirms that the district court erred in applying the doctrine of abstention. See Davis v. Francois, 5th Cir. 1968, 395 F. 2d 730. There a state anti-handbill statute was challenged as being void for "overbreadth" and therefore violative of the first-amendment right of free speech. The lower court applied the doctrine of abstention but the Supreme Court reversed and remanded. The Court emphasized the special duty of federal courts to vindicate federal rights, especially when the challenge is that a statute on its face is repugnant to the first amendment. 88 S.Ct. at 395. The Court squarely held that the abstention doctrine is inappropriate for cases in which the statute is justifiably attacked on its face for an "overbreadth" that abridges free expression. Id. at 396, 399.4

II.

We pass now to a consideration of the action to be required of the district court upon remand. Generally, suits attacking the constitutionality of a state statute and seeking an injunction against its enforcement must be heard by a three-judge district court. If, however, "prior decisions make frivolous any claim that the * * * state statute on its face is not unconstitutional," a three-judge court is not required. Bailey v. Patterson, 1962, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (Emphasis added). Having been given an opportunity to study the dissent, we take note of the argument that under the statutory framework we have no alternative but to vacate and remand. We do not understand what legal doctrine limits our jurisdiction in the manner urged by the dissent. As we view it, we have assumed jurisdiction of a final decision of a district court under 28 U.S.C. § 1291. See Schackman v. Arnebergh, supra, fn. 3; Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, fn. 3. If a substantial constitutional question were presented, we would remand for the convening of a three-judge district court as required by 28 U.S.C. § 2281. See Two Guys from Harrison-Allentown, Inc. v. McGinley, 3d Cir. 1959, 266 F.2d 427. If the claim of unconstitutionality were patently frivolous, we would direct the dismissal of the action. Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. But since prior decisions make frivolous any claim that the state statute on its face is not unconstitutional, we must direct the entry of an order to that effect. Bailey v. Patterson, supra. We are not appropriating by judicial fiat the Supreme Court's supervisory power under 28 U.S.C. § 1253 but rather are disposing of a final decision of a single district judge (28 U.S.C. § 1291) in the way that we deem "just under the circumstances" (28 U.S.C. § 2106). In relying on Bailey v. Patterson, we cannot be subverting the three-judge court framework because this is not a three-judge matter.

Extended discussion is hardly necessary to show the patent invalidity of a statute such as Section 56. Clearly, on its face, this statute prohibits actions protected by the First Amendment, and this overbreadth of coverage is fatal. Support for this conclusion is legion.5 This case, therefore, presents precisely the type of situation to which the Bailey v. Patterson holding should be applied. The issue of constitutionality can be answered merely by reading Section 56 and applying prior decisions of the Supreme Court. Furthermore, where, as here, an appellate court speaks to the merits of the controversy, the policies of federalism meant to be preserved through adjudication by a three-judge court are fully satisfied.

The state, however, points to a decision of the Alabama Supreme Court holding Section 56 constitutional. Kelly v. State, 1962, 273 Ala. 240, 139 So.2d 326. The Alabama court in Kelly stated that the printing and circulating condemned by Section 56 "is the `unlawful printing or circulating,' in other words, `printing or circulating without just cause or legal excuse.'" Id. at 242, 139 So.2d at 328 (Emphasis added). This construction, it is argued, saves the constitutionality of Section 56, or, at the very least, necessitates the convention of a three-judge court for consideration of the issue.6 One need look no further than Thornhill v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, to see the lack of merit in this contention. In Thornhill, the Supreme Court struck down as void on its face Section 55 of Title 14, Code of Alabama, a companion statute to the section now under attack. Section 55 made criminal all picketing and boycott activities near to and directed at any lawful business "for the purpose of hindering, delaying, or interfering" with the same. That section contained the very words of qualification — "without a just cause or legal excuse" — which the Alabama court has read into Section 56. As to the effect of these words, the Supreme Court added:

The phrase "without a just cause or legal excuse" does not in any effective manner restrict the breadth of the regulation; the words themselves have no ascertainable meaning either inherent or historical.

Id. at 100, 60 S.Ct. at 743. Clearly then, an interpretation of Section 56, reading in the above words, does not alleviate its unconstitutional vagueness.7

We hold Section 56 of Title 14, Code of Alabama, to be unconstitutional on its face and thereby void. Appellants, therefore, are entitled to a declaratory judgment to that effect.8 The propriety and necessity of injunctive relief can be decided by the district court in the first instance. See Davis v. Francois, supra. We also hold that upon remand the district court need not request convention of a three-judge court, but may take all necessary action as a single judge.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

GODBOLD, Circuit Judge (dissenting):

I respectfully dissent.

In my opinion, under established principles of federalism this case calls for impaneling a three-judge district court. And, in any event, the declaratory judgment that state action is unconstitutional is beyond the power and authority of a court of appeals.

(1)

The majority find this case not to be for a three-judge district court by applying the standard of Bailey v. Patterson,1 that "prior decisions make frivolous any claim that the * * * state statute on its face is not unconstitutional," that "the constitutional issue presented is essentially fictitious." The "prior decision" relied on is Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

The issue for this court is not whether we approve the application of the Alabama statute by arrest of a 16-year old Negro, and white civil rights workers, for distributing leaflets. Bailey is not concerned with unconstitutional application of a statute but only...

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