NATIONAL ASS'N FOR ADVANCE. OF COLORED PEOPLE v. Gallion

• Citation: 290 F.2d 337
• Decision Date: 15 May 1961
• Docket Number: No. 18576.,18576.
• Parties: NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, Appellant, v. MacDonald GALLION, Attorney General of Alabama and Mrs. Bettye Frink, Secretary of State, State of Alabama, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

290 F.2d 337 (1961)

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, Appellant, v. MacDonald GALLION, Attorney General of Alabama and Mrs. Bettye Frink, Secretary of State, State of Alabama, Appellees.

No. 18576.

United States Court of Appeals Fifth Circuit.

May 15, 1961.

Robert L. Carter, New York City, Arthur D. Shores, Birmingham, Ala., Fred D. Gray, Montgomery, Ala., Orzell Billingsley, Jr., Peter Hall, Birmingham, Ala., of counsel, for appellant.

Willard W. Livingston, Chief Asst. Atty. Gen., MacDonald Gallion, Atty. Gen., Gordon Madison and Leslie Hall, Asst. Attys. Gen., for appellees.

Before TUTTLE, Chief Judge, JONES, Circuit Judge, and MIZE, District Judge.

JONES, Circuit Judge.

In 1956 the Attorney General of Alabama brought suit in the Circuit Court of the 15th Judicial Circuit of Alabama, Montgomery County, against the National Association for the Advancement of Colored People, herein referred to as NAACP, a New York corporation, asserting that it was doing business in Alabama without qualifying as a foreign corporation, and seeking to enjoin it from conducting business and from exercising any of its corporate functions in the State of Alabama. On June 1, 1956, the day the bill of complaint was filed, the Alabama Circuit Court issued its Temporary Restraining Order and Injunction which prohibited the NAACP from conducting business, and from making application to qualify to do business, in Alabama. A demurrer to the bill was filed by NAACP, which also filed a motion to dissolve the restraining order. Before this motion was heard the State moved for the production of a large number of records and papers, including the records showing the names and addresses of the Alabama members and agents of NAACP. The court, after a hearing, entered an order requiring the NAACP to produce records and papers, including the records of its members and postponed the hearing on the motion to dissolve.

The NAACP then answered and admitted it had carried on activities and had established an office in Alabama. It denied that it was required to qualify as a foreign corporation but offered, if permitted, to do so. The production order was not complied with and for its failure the NAACP was adjudged in contempt by an order which imposed a fine of $10,000, and provided that the fine might be reduced or remitted if production was made in five days but otherwise would be increased to $100,000. The NAACP complied, so it later contended, with the order to produce in all respects except as to the names of its members. It contended that it was protected by the United States Constitution from the making of this disclosure. A modification of the restraining order and a stay pending appeal were sought and denied. An application for a stay order was made to the Supreme Court of Alabama. While this application was pending the Circuit Court made a further contempt order and increased the fine to $100,000. The NAACP was not permitted, it seems, under the law of Alabama, to have a hearing on its motion to dissolve the restraining order until it had purged itself of contempt. The Supreme Court of Alabama refused to review the contempt judgment. Ex parte National Association for Advancement of Colored People, 265 Ala. 699, 91 So.2d 221; Id., 265 Ala. 349, 91 So.2d 214.

The Supreme Court of the United States granted certiorari and held that, on the record before it, the State could not require the production of the names of members and that the fine for contempt must fall. National Association for Advancement of Colored People v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. The NAACP, in addition to asserting a constitutional immunity from disclosing the names of its members, attempted to challenge the validity of the restraining order. The Supreme Court declined to consider this question, saying:

"The proper method for raising questions in the state appellate courts pertinent to the underlying suit for an injunction appears to be by appeal, after a hearing on the merits and final judgment by the lower state court. Only from the disposition of such an appeal can review be sought here." 357 U.S. 449, 466, 78 S.Ct. 1163, 1174.

The Supreme Court of Alabama, on the remand from the Supreme Court of the United States, "again affirmed" the contempt judgment on the ground that the United States court had been mistaken in considering that the NAACP had complied with the production order except for refusal to produce its membership lists. Ex parte National Association for the Advancement of Colored People, 268 Ala. 531, 109 So.2d 138. In a per curiam opinion, the Supreme Court of the United States held that the State was precluded from making the contention that the NAACP had failed to comply with the production order otherwise than with respect to the records of its membership. The judgment of the Supreme Court of Alabama was reversed. National Association for Advancement of Colored People v. Alabama, 360 U.S. 240, 79 S.Ct. 1001, 3 L.Ed.2d 1205. The NAACP had applied to the Supreme Court of the United States for a writ of mandamus to compel the Supreme Court of Alabama to comply with the mandate in the earlier case. This was decided in the same opinion as that dealing with the contempt judgment. The court refused to issue a writ of mandamus. In the concluding paragraphs the court said:

"Upon further proceedings in the Circuit Court, if it appears that further production is necessary, that court may, of course, require the petitioner to produce such further items, not inconsistent with this and our earlier opinion, that may be appropriate, reasonable and constitutional under the circumstances then appearing.

"We assume that the State Supreme Court, thus advised, will not fail to proceed promptly with the disposition of the matters left open under our mandate for further proceedings, 357 U.S. at pages 466, 467 78 S.Ct. at page 1173-1174, and, therefore, deny petitioner\'s application in No. 674, Misc., NAACP v. Honorable J. Ed Livingstone, Chief Justice of the Supreme Court of Alabama, et al. for a writ of mandamus." 360 U.S. 240, 245, 79 S.Ct. 1001, 1004.

This decision of the Supreme Court became final upon the denial of a petition for rehearing on October 12, 1959. In response to the efforts of the NAACP to get the Supreme Court of Alabama to send down its mandate to the Circuit Court, the Clerk of the Alabama Supreme Court advised counsel for the NAACP "that this case will receive attention as soon as practicable, commensurate with the rest of the important business of the court." The cause in the United States District Court for the Middle District of Alabama resulting in the judgment from which this appeal was taken was commenced by the filing of a complaint by the NAACP on June 23, 1960. On July 11, 1960, the Supreme Court of Alabama remanded to the Circuit Court the cause remanded to it by the Supreme Court of the United States. In its order the Supreme Court of Alabama directed that the temporary injunction remain in full force pending final determination of the cause on the merits. Ex parte National Association for Advancement of Colored People, Ala., 122 So.2d 396.

Meanwhile there was other activity in the State Circuit Court. On April 9, 1958, the State filed a petition charging a violation of the restraining order by organizing or controlling the Alabama State Coordinating Association for Registration and Voting, which association was, the State asserted, a device and subterfuge to cover and hide operations by the NAACP which were enjoined by the restraining order. The State prayed that the NAACP be required to show cause why the NAACP should not be held in contempt for violating the restraining order by reason of this conduct. The NAACP filed a motion to dismiss the petition, primarily on jurisdictional grounds. We are not informed of any ruling on the motion to dismiss. In February 1960, while the original contempt matter was in the Supreme Court of Alabama with its mandate to the Circuit Court deferred because of other "important business of the court," the State propounded to the NAACP forty-two interrogatories with respect to its connection with the Alabama State Coordinating Association for Registration and Voting. We are not informed as to whether these interrogatories have been either answered or made the subject of objections or other attack.

In the complaint filed by the NAACP in the Federal District Court against the Attorney General and the Secretary of State of Alabama, it is asserted that the legal proceedings brought against it in the State Court are arbitrary and vindictive and hence in violation of due process of law, that no other action has been taken to oust from the State a foreign corporation which had failed to register and the discrimination against it was because of its promotion of equal rights and the eradication of distinctions based upon race. It is alleged in the complaint that, without a hearing, the NAACP was required to close its office in Birmingham, that it suffered the loss of membership and income from members and contributors in Alabama, and that its members are deprived of the right of voluntary association and the right to seek the privileges guaranteed by the Constitution and laws of the United States. An injunction was sought to restrain the Attorney General from proceeding to enforce the State Court restraining order or taking any other action to oust the NAACP from Alabama, and to enjoin the Secretary of State from refusing to register the NAACP as a foreign corporation. There was also a prayer to enjoin interference with the legal and constitutionally protected rights of the NAACP and its members.

The Attorney General and the Secretary of State moved to dismiss on the ground that the federal court lacked jurisdiction and that the contempt matter was, pursuant to the mandate of the Supreme Court of Alabama, again in the Circuit Court. The district...