United States v. Cantrell

• Decision Date: 02 December 1969
• Docket Number: Civ. A. No. 69-102.
• Citation: 307 F. Supp. 259
• Parties: UNITED STATES of America, Plaintiff, v. Mrs. Ernest J. CANTRELL d/b/a Cantrell's Bar, individually and as representative of a class of persons similarly situated, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

307 F. Supp. 259

UNITED STATES of America, Plaintiff, v. Mrs. Ernest J. CANTRELL d/b/a Cantrell's Bar, individually and as representative of a class of persons similarly situated, Defendants.

Civ. A. No. 69-102.

United States District Court E. D. Louisiana, New Orleans Division.

December 2, 1969.

John Mitchell, Atty. Gen.,^* Jerris Leonard, Asst. Atty. Gen.,^* Robert T. Moore, Washington, D. C., Pat Hardin, Asst. U. S. Atty., New Orleans, La., for plaintiff.

Sidney W. Provensal, Jr., New Orleans, La., for defendants.

RUBIN, District Judge.

The Attorney General of the United States brought this suit under the Fourteenth Amendment and the Civil Rights Act of 1964, to enjoin Mrs. Ernest J. Cantrell, the owner of a bar in Myrtle Grove, Plaquemines Parish, Louisiana, from continuing to obey Parish ordinances requiring racial segregation and discrimination against servicemen in uniform, and to have those ordinances declared unconstitutional. Mrs. Cantrell was sued individually and as representative of a class consisting of persons operating bars and cocktail lounges in Plaquemines Parish pursuant to beer and liquor permits issued by the Plaquemines Parish Commission Council.

The court having found that this action satisfies the prerequisites for a class suit set out in Rule 23(a), Fed.R.Civ.Proc., and is maintainable as such under subsection (b) (1) (B) of Rule 23,¹ notice of the suit was sent to each member of the defendant class. As there are no contested issues of material fact, the matter is before the court on cross-motions by the plaintiff and the defendant for summary judgment. Defendant also moves to dismiss the complaint for mootness.

I. THE SUIT IS NOT MOOT

When the suit was initially filed, the government charged that defendants' refusal to operate on an integrated basis violated Section 202 of the 1964 Civil Rights Act, 42 U.S.C.A. § 2000a-1, because they were discriminating racially in compliance with several Parish ordinances calling for such behavior.² One ordinance specifically requiring segregation by race may have been repealed earlier, but the licensing procedure of the Plaquemines Parish Commission Council, through June, 1969, preserved racial discrimination by providing for racial designations on applications and on the permits themselves, which are displayed in the establishments.³ Almost six months after this suit was instituted, the Commission Council enacted a supervening general licensing ordinance, which is racially neutral; at the same time revision of the applications and licensing procedures was begun.⁴

Defendants contend that these changes have rendered the government's claims moot. It is true that the government can no longer complain of or rely on the offending ordinances that have been repealed. Tyson v. Cazes, 5 Cir. 1966, 363 F.2d 742.⁵ However, Ordinance No. 31 denying servicemen in uniform admission to bars and cocktail lounges in Plaquemines Parish is still in force, and operators of bars and cocktail lounges in that Parish continue to discriminate racially.

The government's original claim for relief was as much based upon Ordinance No. 31 as on the other ordinances requiring segregation more directly. It is well established that, even though some issues and claims become moot through changes in circumstances, the court must decide any remaining disputed issues properly in the case. United Public Workers v. Mitchell, 1946, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754. This is particularly important in the civil rights context, where forces opposed to racial equality have proved persistent and ingenious in devising means to evade or postpone compliance with the constitutional mandate.⁶

II. ORDINANCE NO. 31 — ITS BACKGROUND

On August 29, 1963, the Plaquemines Parish Commission Council adopted Ordinance No. 31, prohibiting all persons operating bars and cocktail lounges under permits from the Council from admitting to their place of business "any military personnel in the uniform of any of the military services, and from selling, giving or serving any beer, liquor, beverage or incidentals to any such uniformed person." Violation of the ordinance is a misdemeanor, punishable by a $25 fine and/or 30 days in prison.

The Commission Council's motivation in passing the ordinance is revealed in its preamble; this notes the Council's duty "to preserve the peace and good order of the people of this Parish," interests found to be threatened because

"a situation has been created by the Gesell Report implemented by the Yarmolinsky-McNamara Defense Department Directive which threatens peaceful relations between our civilian population and the personnel of the U. S. Navy Joint Air Training Station at Belle Chasse, and further threatens to interfere with the orderly operation of our local government and the rights of our citizens under penalty of economic boycott and other offensive reprisals * * *"

The document referred to as the Gesell Report was prepared by The President's Committee on Equal Opportunity in the Armed Forces, appointed by President Kennedy in June, 1962. Gerhard A. Gesell, now a United States District Judge, was chairman of the committee; its other members were Nathaniel S. Colley, Abe Fortas, Louis J. Hector, Benjamin Muse, John H. Sengstache, and Whitney M. Young, Jr. The results of the committee's first year of investigation were embodied in its Initial Report, entitled Equality of Treatment and Opportunity for Negro Military Personnel Stationed within the United States. It recommended steps to bring the Negro to a position of full equality within the armed forces, and urged action to eliminate what it found to be "the serious off base discrimination by civilian communities affecting the morale of Negro military personnel and dependents."

President Kennedy referred the Gesell Report to Secretary of Defense McNamara with a strong endorsement of its recommendations, particularly those advocating efforts to open up the facilities of neighboring communities to Negro servicemen on an equal basis with white servicemen. The President declared, "This effort is required by the interests of our national defense, national policy and basic considerations of human decency."⁷ In accordance with the President's request, Secretary McNamara issued a directive authorizing the Assistant Secretary of Defense (Manpower) to conduct a thorough-going campaign to eliminate the problems disclosed by the Report, and, inter alia, ordering each base commander "to oppose discriminatory practices affecting his men and their dependents and to foster equal opportunity for them, not only in areas under his immediate control, but also in nearby communities where they may live or gather in off-duty hours." The Assistant Secretary of Defense (Manpower) charged with this responsibility was Adam Yarmolinsky, now a professor at Harvard Law School.

The Gesell Report and the implementing directive were denounced by a number of public figures who had become identified with opposition to racial integration.⁸ In addition to Ordinance No. 31, on the morning of August 29, 1963, the Plaquemines Parish Commission Council enacted two accompanying Resolutions; one condemned the Gesell Report as an attempt to weaken the armed forces and requested close congressional scrutiny of the Report and its proponents; the other declared the U. S. Navy Joint Air Training Station at Belle Chasse to be off-limits to all citizens of Plaquemines Parish.⁹

At the time Ordinance No. 31 was adopted, the ordinances requiring racial segregation in establishments licensed to serve alcoholic beverages were still in effect. The defendant suggests that the withdrawal of those ordinances leaves Ordinance No. 31, once an integral part of the Parish's efforts to enforce racial segregation, untainted by the original unconstitutional design. She therefore maintains that Ordinance No. 31 violates neither the Fourteenth Amendment nor the Civil Rights Act of 1964.

III. CONSTITUTIONALITY OF ORDINANCE NO. 31

This ordinance is perfidious as well as prejudiced. Even were it not designed to segregate the races, it would be unconstitutional. The men upon whom the nation has thrust the burden of its defense cannot arbitrarily be classified as unworthy to enter establishments purporting to serve the public. Soldiers and sailors, marines and airmen fulfilling their responsibility of national service are entitled at least to equal treatment, if not respect and consideration. A serviceman on active duty should not be obliged to hide his uniform as if it were a badge of disgrace in order to buy a beer in a bar.

The ordinance, on its face, violates the equal protection clause of the Fourteenth Amendment, since it is clearly arbitrary and unreasonable to single out military personnel in the uniform of any of the armed forces of the United States as a class against whom all establishments serving beer or liquor must discriminate. Moreover, no state interest, valid or otherwise, is offered to explain or justify the ordinance.

Classification alone does not ipso facto deprive the selected individuals of equal protection. However, a law that singles out one group for distinct treatment is constitutional only if the classification itself is not invidious,¹⁰ if it is reasonably related to the end sought to be achieved by the legislation,¹¹ and if the law—as well as the classification—is designed to achieve a legitimate state objective.¹² "The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal," McDonald v. Election Commissioners of Chicago, 1969, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739.

Of course, great deference is given the legislative evaluation of circumstances that led to a particular exercise of the state's police power. Nonetheless, the...