Petersen v. Talisman Sugar Corporation

• Decision Date: 03 May 1973
• Docket Number: No. 72-2057.,72-2057.
• Citation: 478 F.2d 73
• Parties: Judith Ann PETERSEN et al., Plaintiffs-Appellants, v. TALISMAN SUGAR CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 73 (1973)

Judith Ann PETERSEN et al., Plaintiffs-Appellants, v. TALISMAN SUGAR CORPORATION et al., Defendants-Appellees.

No. 72-2057.

United States Court of Appeals, Fifth Circuit.

May 3, 1973.

COPYRIGHT MATERIAL OMITTED

Joseph C. Segor, Miami, Fla., Timothy Dyk, Washington, D. C., for plaintiffs-appellants.

William N. Lobel, Miami, Fla., Erle Phillips, Charles Kelso, Atlanta, Ga., for Talisman.

Kirk Sullivan, West Palm Beach, Fla., for Heidtman.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

Talisman Sugar Corporation, a sugar cane grower and producer, paid passage for approximately 1,000 Jamaican workers to work at and live on its sugar plantation from November, 1971 to March, 1972. The Jamaicans were hired under a contract complying with federal regulations,¹ and were brought to live in a camp near Belle Glade, Florida.

The camp consisted of housing for 1050 in the form of concrete block buildings. It had kitchen facilities, a mess hall, recreation facilities, a chapel, an infirmary, a laundry, and a store. Twice a week, the company brought in a minister to conduct religious services. In the store, it carried a general line of merchandise, including food and sundry items such as clothing. Traditionally municipal functions such as fire protection, sewage disposal, and garbage collection were handled by Talisman. There was a post office in the camp, but there was no public telephone of any kind. Though the company has telephones at its office some six miles from the camp which it allows anybody to use for an emergency, the workers cannot use these phones if they wish to make social or business calls.

The camp is almost totally isolated from the outside world. There are either fences or canals completely surrounding the 38,000 acre tract upon which it is located. Eight miles from the nearest highway and six miles deeper into Talisman's property than the sugar mill, the camp is twenty-five miles from South Bay, the nearest town. Four or five miles beyond South Bay lies the somewhat larger community of Belle Glade. Only one road leads from the camp to the highway, and this road is guarded by company employees. Though persons are admitted if brought to the camp on company business or if they come as friends or relatives of the migrant workers, Talisman has pursued a policy of excluding those it deems "inappropriate."

Every other Saturday, the company furnished transportation to those workers wishing to go into the town of Belle Glade. The sole description of the town on these Saturdays was as follows:

"The streets . . . on Saturday might have half the population of Belle Glade on them . . . 12,000, 15,000 people, something like that; and heaven knows how many of this six to eight thousand Jamaicans that are employed by the various sugar companies are there."

Due to lack of their own transport and the language barrier which confronted them in Belle Glade, as well as their limited financial resources, few Jamaicans left the camp except on these biweekly excursions.

In addition to the Jamaicans, Talisman employed domestic workers including field equipment operators. Some of these field equipment operators requested that Talisman recognize the International Association of Machinists as their bargaining representative. When Talisman refused, on the grounds that many other employees did not support the unionization drive, the field equipment operators struck. When Talisman hired strike replacements, the strikers began picketing the company's property. Shortly thereafter, members of the United Farm Workers Union joined the picket lines outside Talisman's plantation.

Plaintiff-appellants Judith Ann Petersen, Florida counsel to the UFW, David Hernandez, Associate Director of the UFW Ministry, a religious group, and Franklin P. Smith, a Methodist minister associated with the Florida Christian Migrant Ministry, sought to visit the Jamaican cane-cutters during the course of the UFW-Talisman dispute. Miss Petersen was seeking to substantiate reports that the company had been illegally using the Jamaican cane-cutters as field equipment operators.² The other two named plaintiffs were supporting this inquiry and wished additionally to present the workers with information concerning their religious organizations.

On February 1, 1972, plaintiffs, accompanied by Father Kerry Robb, an Episcopalian minister, appeared at the entrance of Talisman's property and requested permission to talk with the Jamaican workers in the labor camp. The gatekeeper, defendant Sergio De la Vega, informed them that they would not be permitted to enter without Talisman's permission. After apparently placing a call, De la Vega told the plaintiffs that permission had been denied. Nevertheless, asserting a right to visit the workers in their living quarters, plaintiffs proceeded to drive down the access road toward the camp. Other employees of the company followed them and said that Talisman's general manager, defendant Miguel Cervera, had forbidden them from entering the camp.

Plaintiffs thereupon returned to the main entrance and waited inside the gate on company property until a deputy of defendant William D. Heidtman, Sheriff of Palm Beach County, arrived. The deputy informed the plaintiffs that it was the policy of the Sheriff's office to arrest persons trespassing on labor camp property after being warned off. He said he was acting pursuant to Florida Statute § 821.01, F.S.A., which he read to the plaintiffs as follows:

"Whoever wilfully enters into the enclosed land and premises of another, or into any private residence, house, building or labor camp of another, which is occupied by the owner or his employees, being forbidden so to enter . . . shall be punished by imprisonment not exceeding six months, or by fine not exceeding one hundred dollars."

Although the plaintiffs pointed out that the phrase "or labor camp" has been excised from the statute by the Florida Legislature in 1969, the deputy said that the protection given to "enclosed land" was enough, without more, to justify the arrest. The plaintiffs were arrested at this time, but no charges were pressed. However, after notice of appeal was filed in this case, an information was brought charging plaintiffs with trespass on Talisman's property. The trial judge dismissed the charges on the ground that "to prevent their entry might lead to a condition where employees are subjected to a form of involuntary servitude, wherein the masters decide who may communicate with the servants." State v. Petersen et al., Case No. 72M-8209, filed in the Small Claims-Magistrate Court, Criminal Division, in and for Palm Beach, Florida.

On February 7, 1972, plaintiffs instituted this class action in federal court, seeking a declaratory judgment and an injunction establishing the right of themselves and others similarly situated to visit the Talisman labor camp. Both compensatory and punitive damages were also sought against the defendants.³ Following a hearing on March 3, 1972, the district court entered an order dismissing the complaint. It held that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) barred relief, and that plaintiffs were not proper class representatives, had no right to access to the labor camp under the Sugar Act and the Wagner-Peyser Act, had no standing to assert First Amendment rights of the Jamaican workers to receive information, and had no right of access to the camp under the First and Fourteenth Amendments.

Since the initiation of this suit, Talisman has spent over one million dollars on cane cutting machines, has given up its Labor Department certification for the importation of Jamaican workers, and has offered assurances that no workers will henceforth reside in the camp. The work force allegedly will be reduced permanently from 1,000 to 50 and the workers will commute except when there is reason to stay over. Though the buildings of the camp will not be destroyed, the services formerly provided will be discontinued. The gate will remain guarded, however, and access will continue to be granted only to those having direct business with the company or visiting employees "and those visits are desired by these employees."

I. MOOTNESS

Plaintiffs sought not only declaratory and injunctive relief from the trial court, but requested that monetary damages be awarded for injury done under color of law. 42 U.S.C. § 1983. Though the damages action has been dismissed as to the Sheriff, the claim for damages against defendants other than the Sheriff is still a live controversy. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1956) and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1968) recognize that even if the injunctive and declaratory relief sought is moot, the courts retain jurisdiction to decide upon the appropriateness of awarding damages.

Moreover, the operational changes effected by Talisman do not moot even the declaratory and injunctive relief requested. A discontinuance of wrongful conduct does not alone warrant denial of injunctive relief, for the appropriateness of granting an injunction against now-discontinued acts depends upon the bona fides of the expressed intent to comply, the effectiveness of the discontinuance, and, in some cases, the character of past violations, United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). Where "the underlying question persists and is agitated by the continuing activities and program" of the defendant, Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 179, 89 S. Ct. 347, 350, 21 L.Ed.2d 325 (1968), a controversy is not moot.

Though Talisman has spent substantial sums on mechanical harvesting equipment and has relinquished its permit to import Jamaican laborers, the harvesting equipment is experimental and might have to be abandoned for manual labor if weather...