Machesky v. Bizzell

• Citation: 288 F. Supp. 295
• Decision Date: 13 August 1968
• Docket Number: No. GC 6821.,GC 6821.
• Parties: Father Nathaniel MACHESKY, Reverend M. J. Black and Reverend William Wallace, Individually and on behalf of those similarly situated, Plaintiffs, v. Honorable William H. BIZZELL, as Chancellor of the Chancery Court of Leflore County, Mississippi, A. B. Abide, d/b/a Abide's Downtown and Abide's Highland Park, and Barrett's Drug Store, Inc., a Mississippi Corporation, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

288 F. Supp. 295

Father Nathaniel MACHESKY, Reverend M. J. Black and Reverend William Wallace, Individually and on behalf of those similarly situated, Plaintiffs, v. Honorable William H. BIZZELL, as Chancellor of the Chancery Court of Leflore County, Mississippi, A. B. Abide, d/b/a Abide's Downtown and Abide's Highland Park, and Barrett's Drug Store, Inc., a Mississippi Corporation, Defendants.

No. GC 6821.

United States District Court N. D. Mississippi, Greenville Division.

August 13, 1968.

COPYRIGHT MATERIAL OMITTED

Elliott C. Lichtman, Jackson, Miss., for plaintiffs.

Lott, Sanders & Gwin, Greenwood, Miss., William H. Bizzell, Chancellor, Cleveland, Miss., for defendants.

OPINION OF THE COURT

KEADY, Chief Judge.

Plaintiffs filed their complaint in this court seeking declaratory and injunctive relief against William H. Bizzell, Judge of the Chancery Court of Leflore County, Mississippi, and A. G. Abide and Barrett's Drug Store, Inc., as representatives of certain Greenwood merchants, to have declared lawful and protected by First and Fourteenth Amendments to the United States Constitution and by the Civil Rights Acts of 1964 and 1968, certain picketing and other organized conduct and activities engaged in by plaintiffs at Greenwood, Mississippi, to "publicize their grievances against the merchants and the administration of the City of Greenwood and Leflore County, and to urge compliance with an economic boycott" against certain Greenwood merchants because of alleged denial of equal rights to Negro citizens in the community. The complaint also sought "to restrain the issuance of any injunction by the Chancery Court of Leflore County, Mississippi, at the instance of defendants which infringes on these federal rights."

Federal jurisdiction was asserted under 28 U.S.C. §§ 1343 and 2201. The federal court complaint was filed on June 11, 1968. No motions were thereafter filed by plaintiffs until July 26, 1968, when they presented a motion denominated "To Expedite Declaratory Judgment and to Vacate or Modify Chancery Court Injunction".

The case is now before the court on motions filed by the defendant William H. Bizzell to dismiss upon the ground that the complaint fails to state a claim as to him upon which relief can be granted, and by the defendant merchants asserting also a like ground for dismissal, and an added ground that, at the time of the commencement of the federal court action, there was already pending in the state court a proceeding involving the same parties and same issues. It will be helpful to recite the chronology of this litigation as it appears from motions and supporting affidavits before the court and also from statements of fact made by plaintiffs' counsel in their brief filed in opposition to the two motions to dismiss.

On June 5, 1968, defendant merchants and others of their class instituted suit in the Chancery Court of Leflore County, Mississippi, Cause No. 15725, seeking to enjoin plaintiffs and other members of their class, collectively described as "Greenwood Movement" from continuing an allegedly illegal conspiracy engaged in by plaintiffs, beginning on or before April 11, 1968, to destroy the business of the Greenwood merchants by boycotting their stores and withholding their trade, and also by mass picketing of such places of business. The state court suit further charged that plaintiffs (as defendants there) "by force, violence, coercion, threats, abusive language, intimidation, and unlawful means, prevented a great portion of Greenwood citizens, mostly Negroes, from doing business" with defendant merchants, and plaintiffs "by their unlawful acts and malicious conduct, had created an atmosphere of fear in the Greenwood Negro community, and, to a degree, in Greenwood's white community, that prevents a substantial portion of Greenwood citizens from exercising their own will in determining whether or not they will do business" with the defendant merchants. Many specific incidents in support of these allegations were detailed in the bill of complaint. Defendant merchants further charged that because of the atmosphere of fear and terror existing in the Negro community of Greenwood, a continuation of the boycott and picketing "on any basis or under any controls" would be unavailing to restore free will on the part of citizens because of "the background of violence" in which the boycotting and picketing has been set and that "the momentum of fear generated by this past violence on the part of defendants will survive and persevere as long as the boycott or picketing occurs in any form or manner whatsoever." The state court suit prayed for the Chancellor to set a time and place for a hearing on an application for temporary injunction designed to prohibit plaintiffs from picketing or marching or loitering or congregating upon any sidewalk or street, or stationing lookouts for the purpose of observing customers entering, leaving or shopping or doing business in the Greenwood business establishments, or engaging in other related proscribed activities.

On June 5, 1968, which was the date of the filing of the state court suit, the Chancellor set a hearing for June 12, 1968, on the application for temporary injunction, and plaintiffs were at once served with both Chancery summons and citation for special hearing. On June 12, 1968, plaintiffs moved defendant Chancellor to postpone the hearing because of their filing of the federal court action on the previous day, June 11, 1968. That motion was overruled. On June 12, 13 and 17, the state court heard evidence in support of the merchants' application for temporary injunction. On June 19, 1968, the state court overruled plaintiffs' motion to dismiss the bill, and received evidence offered by plaintiffs. The evidentiary hearing was concluded on June 19, 1968. At this conclusion, the Chancellor requested briefs from both sides, which were received by him on June 25, 1968. Plaintiffs had made timely request for finding of facts and conclusions of law by the state court, pursuant to Mississippi Code Annotated § 1390.

On July 4, 1968, the Chancellor issued his written opinion making extensive findings of fact and stating conclusions of law. On July 5, 1968, a temporary injunction, in accordance with the Chancellor's opinion, was issued against plaintiffs prohibiting them from picketing or marching in a specified restricted area of the business section of Greenwood, or from loitering or congregating upon any public sidewalk or street in Greenwood (by amendment made applicable only to the restricted business area), for the purpose of doing anything to induce, persuade or coerce any person not to trade with specified business establishments, or from stationing themselves or anyone else as lookouts to observe customers entering, leaving, or shopping or doing business in such business establishments, or from making or preparing a record of the names, automobile license numbers and other identification of persons entering or trading in such business establishments, or from publishing, distributing or announcing in any manner the name of persons who have entered or traded in, or may enter or trade in, such business establishments, or from causing such names to be published or otherwise distributed, and finally against plaintiffs threatening, intimidating, coercing or using force or violence upon any person to dissuade him from entering or trading in such business establishments. On July 11, 1968, plaintiffs filed a motion urging the state court to modify or clarify its order of temporary injunction, and on July 20, 1968, the Chancellor issued a second opinion making a slight modification in the terms of the temporary injunction but otherwise overruling plaintiffs' objections thereto.

Also, at the July 1968 Rules Day of Leflore County Chancery Court, plaintiffs filed a demurrer and answer to the bill of complaint which also sought a permanent injunction.

Thus, it will be seen that after the mere filing of a complaint in federal court, plaintiffs participated in extensive hearings in the pending state court action and joined battle on the factual issues by offering evidence to refute the merchants' charges of threats, intimidation, actual violence and community-wide coercion and resulting fear produced by the Greenwood Movement. It is evident that there were serious, genuine issues of fact relating to whether or not the activities of the Greenwood Movement had exceeded the limits of freedom of speech, assembly, and petition guaranteed to plaintiffs by the Federal Constitution. Be that as it may, no application was made by plaintiffs to this court, upon motion and notice as provided by Rule 65(a), F.R.Civ.P., for a preliminary injunction against the prosecution of the state court action, nor for a temporary restraining order, grantable under Rule 65(b), with or without notice upon a showing of immediate and irreparable injury. No reason has been suggested why plaintiffs should be relieved of the duty of timely staying the hand of the state court if they, in fact, had justifiable basis for believing that their federally protected rights would not be recognized and honored by the state court. In these circumstances, it seems hardly enough for plaintiffs, who were represented by able counsel, to have merely requested a postponement from the Chancery Judge who had not, as of that date, been served with federal court summons, and to do nothing else.¹ Avoidance of needless conflict between orders of the state and federal courts is a matter which is not to be ignored by responsible litigants in the protection and maintenance of their legal positions.

Nor is any suggestion presently made that the Chancellor exhibited an arbitrariness, partiality or prejudgment, or that other special circumstance was present, so as to infect the state court proceedings with infirmities offensive to notions of fair trial and due process. On the contrary, the detailed...