United States v. Lynd

Decision Date21 May 1962
Docket NumberNo. 19576.,19576.
Citation301 F.2d 818
PartiesUNITED STATES of America, Appellant, v. Theron C. LYND, Circuit Clerk and Registrar of Voters of Forrest County, State of Mississippi, Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

John Doar, Atty., Dept. of Justice, Washington, D. C., for appellant.

Edward L. Cates, Asst. Atty. Gen. of Mississippi, Joe T. Patterson, Atty. Gen. of Mississippi, Dugas Shands, Asst. Atty. Gen. of Mississippi, Peter M. Stockett, Jr., Sp. Asst. Atty. Gen. of Mississippi, Jackson, Miss., M. M. Roberts, Francis T. Zachary, Hattiesburg, Miss., for appellees.

Before TUTTLE, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges.

TUTTLE, Chief Judge.

This is a motion for an injunction pending an appeal which the United States seeks to have this Court issue following a refusal by the District Court for the Southern District of Mississippi to grant a temporary injunction, which the government sought under the provisions of 42 U.S.C.A. § 1971(a) (The Civil Rights Act touching on voting), it being charged in the government's complaint that Negro applicants for registration in Forrest County, Mississippi, were not being treated "without distinction of race or color." The government has filed a notice of appeal from the denial of the temporary injunction. Pending the disposition of this appeal on the merits, the government has filed this motion by which this Court is asked to enjoin the alleged violations of the voting rights of the Negro residents of Forrest County in certain particulars as to which the government claims that it offered undisputed proof. Such a motion for an injunction pending an appeal is to be found in the All-Writs Statute, 28 U.S. C.A. § 1651, which provides that:

"The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

Rule 62(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. also provides that the authority granted to the District Court to grant relief pending an appeal does

"not limit any power of an appellate court or of a judge or justice thereof * * * to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered."

The basis of the government's appeal and its subsequent motion for injunction pending appeal is its contention that it has been completely frustrated in an effort to obtain an order of the trial court putting an end to alleged racially discriminatory acts and practices which the government contended in its complaint have deprived Negro citizens of Forrest County of their right to register and to vote without distinction of race or color. The government's efforts to redress the wrongs which it alleges exist in Forrest County commenced on August 11, 1960, ten months prior to the filing of this suit. At that time the United States formally requested that the defendant Lynd, the Registrar of Forrest County, make his registration records available for inspection and copying under Title III of the Civil Rights Act of 1960, 42 U.S.C.A. § 1974 et seq. These efforts proving fruitless, the government, on January 19, 1961, filed an enforcement proceeding in the District Court to require production of such records. This action also proved fruitless for, although as this Court said in the recent case of Kennedy, Attorney General v. Bruce, 5 Cir., 298 F.2d 860, an order granting the government the right to make such an inspection should have been issued "as a matter of course," the trial court failed for nearly six months to grant such order. Thereupon, on July 6, 1961, this present suit was filed. Thereafter, on February 15, 1962, the court dismissed the enforcement proceeding as "abandoned." This action was taken, so the trial court said, because after the government filed its suit for injunction on July 6, 1961, and moved for discovery of the official registration records of Forrest County under Rule 34 of Federal Rules of Civil Procedure, the trial court considered that this effort, which it also blocked, superseded the enforcement proceeding.

In the meantime, the instant litigation was delayed from time to time by dilatory motions, including motions to quash the Rule 34 motion, and including motions to make more definite statement, none of which, of course, should stand in the way of a prompt disposition of a motion for temporary injunction.

Briefly stated, the net effect of the several procedural steps taken by the parties is that the trial court finally set down for hearing the motion for temporary injunction on March 1, 1962, eight months after the suit for injunction was filed, and the posture of the parties was that defendants had objected to, and the trial court had sustained their objections to, giving any access to the records of the Registrar, although at the same time defendants had insisted, and the court had sustained their insistence, on the government's amending its complaint to allege in great detail the name of each applicant who had sought and been denied the right to register, the date of each such application, the name of each Negro who had been refused the right to register, the dates involving any discriminatory mishandling of any Negro registration applications, the names of white people allowed to register who possessed no better qualifications than such Negroes denied the same privilege, and other facts and circumstances showing such discrimination in each of said instances. Moreover, the court had sustained objections by the defendants to the inclusion among the alleged complaining Negro applicants of any who had been denied the right to register or who claimed a discriminatory practice which had occurred prior to February 26, 1959, the beginning of defendant Lynd's term of office. Out of the 63 Negroes whose names the government had supplied by an amendment to the complaint, the trial court required that all but 40 of these be eliminated because the incidents as to which they were identified occurred prior to this date.

The injunction hearing finally came on for trial on March 5th and continued through March 7th. At this time sixteen of the Negroes whose names had been furnished by an amendment to the complaint testified as to experiences with which they were familiar. The government also undertook to prove discriminatory practices by sixteen white witnesses who had been found to be willing to testify in spite of the refusal of the Registrar, with approval of the Court, to make any records of white voters available to the complainant. During the trial it appeared that the defendants actually had in court certain voting records of the Negro witnesses, and the court required that these be turned over to the United States. The court also required that the records touching on the registration experiences of the white witnesses be turned over to the United States, but that they should not be turned over until after the government completed its case in chief. They were actually turned over as to six white witnesses only after the government closed.

Notwithstanding the well-nigh impossible task of showing the true facts, the witnesses produced by the government proved without question that certain serious discriminations had taken place during the term of office of the defendant Lynd. At the conclusion of the presentation by the government of its evidence, the State and the defendant Lynd both reserved the right of cross examination and deferred such cross examination. The defendants then declined to put on any evidence but stated that it would take thirty days to be prepared to file answers to the amended complaint and to prepare for introducing defense witnesses. Thereupon the government moved the Court to issue a temporary injunction. Without doing so, and declining either to grant or refuse a temporary injunction, in terms, the court failed to comply with the motion and granted a recess of thirty days to permit the defendants to file their answer and to prepare for proving their defensive case.

At the time the government made its motion for temporary injunction it is plain that the following facts relevant to the complaint that Negro...

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  • State of South Carolina v. Katzenbach
    • United States
    • U.S. Supreme Court
    • 7 Marzo 1966
    ...County, Mississippi, the registrar rejected six Negroes with baccalaureate degrees, three of whom were also Masters of Arts. United States v. Lynd, 5 Cir., 301 F.2d 818, 821. 14 For example, see United States v. Atkins, 5 Cir., 323 F.2d 733, 743. 15 For example, see United States v. Logue, ......
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