Palmer v. Thompson
Decision Date | 29 August 1967 |
Docket Number | No. 23841.,23841. |
Citation | 391 F.2d 324 |
Parties | Hazel PALMER et al., Appellants, v. Allen C. THOMPSON, Mayor, City of Jackson et al., Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
L. H. Rosenthal, Jackson, Miss., Paul A. Rosen, Detroit, Mich., for appellants.
Thomas H. Watkins, E. W. Stennett, Jackson, Miss., for appellees.
Before RIVES, COLEMAN and GODBOLD, Circuit Judges.
Twelve Negro citizens and residents of Jackson, Mississippi, on their own behalf and "on behalf of the thousands of their fellow Negro citizens and residents * * * who are similarly situated because of race and color," filed a complaint against the Mayor and Commissioners of Jackson, its Police Chief, and its Director of Recreation, seeking to enjoin their allegedly discriminatory conduct. After joinder of issue and the filing of affidavits and stipulations showing the facts, the case was submitted to the district court for final decree on its merits. The court found that the plaintiffs were not entitled to any of the relief prayed and dismissed the complaint. On appeal, the plaintiffs seek review on two points stated in their brief as follows:
There seems to be no dispute as to the facts; certainly the findings of fact are not clearly erroneous. Rule 52(a), Fed.R.Civil P. As to the swimming pools, the district court found the facts as follows:
The district court's conclusions of law relating to the operation of the swimming pools were:
The appellants urge that the City may not abandon the operation of public swimming pools to prevent them from being desegregated, and that to do so is contrary to the teaching of Mulkey v. Reitman, 1966, 64 Cal.2d 529, 413 P.2d 825, aff'd, May 29, 1967, U.S. No. 483, Oct. Term 1966, and of Griffin v. County School Board of Price Edward County, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256. In our opinion, the holding in neither of these two cases extends so far as to prevent the City from closing its swimming pools when they cannot be operated economically or safely as integrated pools.
The Court further held that, "Accordingly, we agree with the District Court that closing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws." 377 U.S. at 232, 84 S.Ct. at 1234. Neither those cases nor any other authority can permit a federal court to require a city to operate public swimming pools when to do so would endanger the personal safety of the city's citizens and the maintenance of law and order.1
The district court's findings of fact as to the City jail were as follows:
The conclusions of law relating to the operation of the City jail were:
We agree with the district court that the appellants-plaintiffs lack standing to challenge the segregated operation of the City jail.2 The thrust of the complaint aims at the alleged segregated operation of public recreational facilities in Hinds County, Mississippi. Appellants carefully show that they brought the "action on their behalf and on behalf of thousands of their fellow Negro citizens * * * who are racially segregated and discriminated against by the defendants * * * in the use and enjoyment of public recreational facilities in Hinds County, Mississippi."
Thereafter in the complaint, the appellants list numerous public facilities, among them parks, city auditoriums, swimming pools, and the City jail, alleging that each was operated on a segregated basis. Injunctive relief prohibiting the segregated operation and management of each facility was requested. As noted at the beginning of this opinion, only the relief in regard to the swimming pools and the City jail is before this Court.
It is clear that though standing is alleged for those persons who are discriminated against in the use of recreational facilities, there is a prayer for relief in non-recreational areas. Standing to enjoin discrimination in the operation of non-recreational facilities must be apparent from the complaint. Normally a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation. See Barrows v. Jackson, 1953, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586, and cases cited in footnote 3...
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...to be "typical". D. Representativity Class representatives cannot qualify merely on the grounds of race alone. See Palmer v. Thompson, 391 F. 2d 324 (5th Cir. 1967).4 The interests of the representatives of the class must be co-extensive with the interests of other members and groups within......
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...protect the interests of the class." 4 2 Barron & Holtzoff, Federal Practice & Procedure § 567 (Wright ed. 1968). 5 See Palmer v. Thompson, 391 F.2d 324 (5 Cir. 1967). Plaintiffs rely on Cypress v. Newport News General and Nonsectarian Hospital Ass'n, 375 F.2d 648 (4 Cir. 1967) and Potts v.......
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Palmer v. Thompson
...to any relief and dismissed the complaint. On appeal, a panel of the Court of Appeals for the Fifth Circuit affirmed. Palmer v. Thompson, 391 F.2d 324 (1967). On rehearing en banc, the Court of Appeals, by a seven-to-six vote, again affirmed dismissal of the complaint. 419 F.2d 1222 (1969).......
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Palmer v. Thompson
...1965. The original panel decision affirming the denial of relief by the district court was rendered on August 29, 1967. Palmer v. Thompson, 5 Cir., 1967, 391 F.2d 324. This is not to attribute the long delay to the parties; it is court produced. In any event, one must wonder what has happen......