Sharp v. Lucky
| Decision Date | 28 March 1958 |
| Docket Number | No. 16687.,16687. |
| Citation | 252 F.2d 910 |
| Parties | James SHARP, Jr., Appellant, v. Mrs. May LUCKY, Registrar of Voters, Ouachita Parish, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James Sharp, Jr., Monroe, La., for appellant.
Fred Fudickar, Jr., Albin P. Lassiter, Monroe, La., George M. Ponder, first Asst. Atty. Gen., Jack P. F. Gremillion, Atty. Gen., for appellee.
Before BORAH, TUTTLE and CAMERON, Circuit Judges.
This is an appeal from an order dismissing appellant's suit for violation of his civil rights for want of jurisdiction and for failure to state a claim upon which relief can be granted.
The complaint alleges that Sharp, a Negro lawyer, went to the office of defendant, Mrs. Lucky, Registrar of Voters of Ouachita Parish, Louisiana, on legal business for his client, another Negro, Willie L. Tillman, who had been notified that his voter's registration was challenged; that Mrs. Lucky told him that only white persons were waited on in her office, and that her assistant took care of all colored people in the police jury room; that Mrs. Lucky "refused to let plaintiff and his clients sic see his card and comply with her letter in her office soley sic because they are Negroes, and that she is at present segregating Negroes in office soley sic on the basis of their race"; that because of these acts of appellee, appellant's client has lost his status as a voter in Ouachita Parish, all because plaintiff was prevented from representing his client solely because of his race, for which he seeks damages; that "defendant has violated the 14th and 15th Amendments of the Constitution of the United States in the arbitrary, capricious and discriminatory manner as hereinabove set out; that plaintiff and persons of the class they sic represent have been and are being refused the right to registrar sic and vote and/or answer correspondence from the registrar in her office solely because of their color and race." The complaint alleged that it was a class action,1 and sought the following relief:
The case was heard below on the defendant's motion to dismiss, no answer having been made on the merits. The grounds urged for dismissal were: (1) That the court lacked jurisdiction over the subject matter; (2) The court lacked jurisdiction of the person; (3) The complaint failed to state a claim on which relief could be granted.
The suit must stand, if at all, upon a federally created right, for there is no diversity of citizenship. The applicable statutes, generally known as the Civil Rights Statutes, are 42 U.S.C.A. § 1981,2 § 1983,3 and 28 U.S.C.A. § 1343.4 The applicable provision of the Constitution is § 1 of the Fourteenth Amendment.
The trial court, construing the complaint simply as a suit for damages for the interference with plaintiff's right to practice law, determined that the prevention of such interference by state officials was not a violation of a civil right. In this connection the court cited several cases for the proposition that the right to practice law is not a right protected by the civil rights statutes. Whatever may have been thought to be the law with respect to this right formerly, it has now been authoritatively decided by the Supreme Court that "a state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. * * *" Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796. However, we do not believe the alleged interference here amounted to such interference with Sharp's activities as would amount to "excluding" him from the practice of law. The alleged interference here with Sharp's activities was directed to him as a member of the Negro public; if he accepted the restrictions, or special requirements, that Mrs. Lucky applied to all Negro registrants (according to the allegations of the complaint) plaintiff would not in any manner have been interfered with in serving his client.
This brings us then to this question: Does the complaint plainly set out a cause of action, that is, does it charge with sufficient clarity action by the defendant, in the operation of her office, which denies to the plaintiff, as a Negro, and to others of that race, solely on account of race, rights which are guaranteed them under the Constitution and laws of the United States?
We think it plain that this suit alleges that when Sharp and his client, Tillman, went to Mrs. Lucky's office on business, for which her office existed and for which it was maintained by the State and Parish, she, in her official capacity, refused to deal with them "in her office" solely because they were Negroes, and sent them to another room in the court-house. It is not necessary to make an extended statement in light of all of the related cases decided by this Court and the Supreme Court, to support our conclusion that such official conduct is not permissible. Having decided, as we have, that Harris County, Texas may not operate a segregated cafeteria, Derrington v. Plummer, 5 Cir., 240 F.2d 922; that St. Petersburg, Florida may not operate a segregated swimming pool, City of St. Petersburg v. Alsup, 5 Cir., 238 F.2d 830; and the Supreme Court having decided that the City of Atlanta may not operate a segregated golf course, Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776, it is too plain for argument that Ouachita Parish, Louisiana may not, through its registrar of voters, operate a segregated registrar's office.
Moreover, we think it quite clear that the complaint alleged a proper case for a class action. Since, as we have stated, this is not to be construed as a suit for interference with plaintiff Sharp's rights as a lawyer, but as a Negro citizen, he may properly sue on behalf of all other Negro citizens, since they all have an identity of interest in having access to the public offices of the Parish on a non-segregated basis. Rule 23 F.R.C.P.; cf. City of St. Petersburg v. Alsup, supra; Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, certiorari denied 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed. 1436.
We do think it appropriate to state that appellant misconceives the effect of the alleged acts of defendant upon his right or duty to represent his client as to the measure of damages, if any, that he may be entitled to. There was no interference with plaintiff's adequately serving his client if he had been willing to subject himself to the restraints that were applicable, according to his allegations, to all Negroes; his damages, therefore, would not be augmented by any failure of his to obtain the relief which he sought for his client. Any damages to which he might be entitled are those to which any member of the class he represents would be entitled, in light of the circumstances, by reason of the alleged illegal segregation applicable to all Negroes.
The judgment is reversed for further proceedings not inconsistent with this opinion.
The written opinion rendered by the District Court,1 I find unanswerable. No good purpose would be served by repeating here what is there said, and I shall confine this dissent to an effort to amplify some of the statements of the published opinion and to add a few other facts and considerations.
(a) It is plain that appellant was not discriminated against in any way — that he was not denied any right given him by the Constitution of the United States. He went into the registrar's office only as the agent and attorney for his client. His entering the office and remaining there were not challenged in any way. He was a registered voter, and his registration had not been brought in question. His agency carried him wherever his principal should go. If the client had been represented by a white attorney, he would have been directed to the adjoining room exactly as appellant was. Moreover, if appellant had presented himself as attorney for a white voter or for a Negro voter residing in one of the eight wards whose cards were in the office entered by appellant, the whole transaction would have been completed in that room.2
The fact that his client was sent to another room in violation of his constitutional rights — if such be the case — does not constitute any discrimination against appellant. An attorney is required to go wherever his client's business takes him. His client may be incarcerated in violation of his constitutional rights. But...
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United States v. State of Louisiana, Civ. A. No. 2548.
...and which are a part of due process of law as we have heretofore known it," and to concur with Judge Cameron's dissent in Sharp v. Lucky, 252 F.2d 910, 924 (C.A.5 1958), wherein he said: "This sad epoch in our history post Civil War was fomented in no small part, by well-intentioned men in ......
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Boman v. Birmingham Transit Company
...Court said, in Collins v. Hardyman, 1950, 341 U.S. 651, 656, 71 S. Ct. 937, 95 L.Ed. 1253 (cf. dissenting opinion in Sharp v. Lucky, 1958, 252 F. 2d 910, 913, 919): "The Act was among the last of the reconstruction legislation to be based on the `conquered province' theory which prevailed i......
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Reddix v. Lucky
...further proceedings not inconsistent with this opinion. CAMERON, Circuit Judge (dissenting). This is a companion case to No. 16,687, Sharp v. Lucky, 5 Cir., 252 F.2d 910, brought on the same day by the same attorney and decided on appeal by this Court at the same time. Much of the dissentin......
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Tullier v. Giordano, 17450.
...Statutes — to which this Court is so definitely committed — was further developed in the dissenting opinion in Sharp v. Lucky, 5 Cir., 1958, 252 F.2d 910, 915 et seq. The case before use involves nothing but a local political brawl. To extend federal jurisdiction to such would spread so thi......