Wallace v. Brewer

• Decision Date: 09 June 1970
• Docket Number: Civ. A. No. 2988-N.
• Citation: 315 F. Supp. 431
• Parties: John D. WALLACE, Orzell Billingsley, Jr., Jimmy Holmes, Joe Sledge, and John Henry Davis, for themselves and jointly and severally for all others similarly situated, Plaintiffs, v. Albert BREWER, as Governor of Alabama and his successors, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

315 F. Supp. 431

John D. WALLACE, Orzell Billingsley, Jr., Jimmy Holmes, Joe Sledge, and John Henry Davis, for themselves and jointly and severally for all others similarly situated, Plaintiffs, v. Albert BREWER, as Governor of Alabama and his successors, et al., Defendants.

Civ. A. No. 2988-N.

United States District Court, M. D. Alabama, N. D.

June 9, 1970.

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Charles Morgan, Jr., and Reber F. Boult, Jr., Atlanta, Ga., Jack Drake, Tuscaloosa, Ala., Jim Keenan, New Orleans, La., and George W. Dean, Destin, Fla., for plaintiffs.

MacDonald Gallion, Atty. Gen., of Ala., and Gordon Madison, Asst. Atty. Gen., Montgomery, Ala., for defendant officials of the State of Alabama and the Legislative Commission to Preserve the Peace, its director and members.

Hugh A. Locke, Jr., Locke & Locke, Birmingham, Ala., for all other defendants—"RID" and its leaders, Pine Forest Missionary Baptist Church and its trustees.

Before RIVES, Circuit Judge, and GROOMS and JOHNSON, District Judges.

OPINION

PER CURIAM:

Plaintiffs Wallace, Billingsley, Holmes, Sledge and Davis brought this action seeking injunctive relief against defendants. Specifically, plaintiffs request a temporary restraining order and preliminary injunction enjoining defendants: (1) from enforcing certain Alabama statutes under which plaintiffs have been arrested;¹ (2) from conduct harassing, threatening, and interfering with plaintiffs in exercising their first amendment rights to express themselves and associate and to exercise their chosen religion, and their statutory rights to hold and own property and to make contracts; (3) from proceeding with civil litigation in state courts for trespass; (4) from proceeding or acting in any manner pursuant to terms and conditions of Alabama House Joint Resolution No. 5 and the Alabama Legislative Commission to Preserve the Peace. Plaintiffs have also requested this Court to declare (1) that the practice, policy, custom or usage of defendants is in violation of the laws and Constitution of the United States;² (2) that Alabama statutes under which plaintiffs have been arrested, see note 1, supra, are unconstitutional; (3) that Alabama House Joint Resolution No. 5 is unconstitutional.

Plaintiffs premise their request for declaratory and injunctive relief upon the first, fifth, sixth, eighth, ninth, thirteenth, fourteenth and fifteenth amendments to the U.S. Constitution and also upon 42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1988.

On December 11, 1969, this Court concluded that a temporary restraining order was necessary to prevent irreparable damage and, therefore, temporarily enjoined defendants Waid and Gallion from prosecuting plaintiff Holmes for violating Title 14, § 97(4a) (under arrest warrant issued on November 11, 1969) and Title 14, § 426 (under arrest warrant issued on November 11, 1969), and plaintiff Billingsley under a warrant charging him with acting as agent for a corporation without a license authorizing it to do business in Alabama. On December 16, 1969, these defendants were also temporarily enjoined from prosecuting plaintiff Davis for violating Title 10, § 21(94) (under arrest warrant issued on December 4, 1969). On January 28, 1970, from the bench, this Court further enjoined these defendants from prosecuting plaintiff Holmes under a warrant (issued on January 7, 1970) charging him with permitting livestock to run at large.

Various motions were made by both plaintiffs and defendants and several were continued pending the hearing on plaintiffs' motion for preliminary injunction and the decision of this Court: (1) defendants' motion to dissolve temporary restraining order; (2) defendants' motion to dismiss; (3) defendants' motion for summary judgment; (4) defendants' motion to bring in third-party defendants. An evidentiary hearing on these motions and on plaintiffs' motion for preliminary injunction was held on January 28, 1970.

A brief summary of the facts follows. The Black Muslims made their first purchase of land in St. Clair County in July 1969 under the name Progressive Land Developers, Inc. (PLD). The 376-acre farm in north St. Clair County was purchased for $115,105 from Ray Wyatt, a resident of St. Clair County. In May 1969, Wyatt and Robert McClung bought a 541-acre farm, Big Beaver Ranch, in the southern part of St. Clair County, at public auction and then resold the farm to PLD for $80,646.11. The Big Beaver Ranch was adjacent to the Pine Forest Missionary Baptist Church and surrounded the church cemetery.

Early in November the citizens of St. Clair County became aware of the purchases of land by the Black Muslims. After it became apparent that the Black Muslims were planning to operate two farms in St. Clair County, a series of activities, both legal and extralegal, were instituted to prevent the establishment of these farms. On November 11 defendant John Golden, under the claim of a lease with option to purchase the 376-acre farm in north St. Clair County, swore to a warrant for the arrest of plaintiff Holmes on a charge of trespass after warning in violation of Title 14, § 426, Code of Alabama. On the same day a warrant charging Holmes with "Failure to Register as a Muslim" in violation of Title 14, § 97(4a), was sworn to by defendant Bishop.

On November 19, 1969, a warrant was sworn to by defendant Bishop and issued for the arrest of plaintiff Billingsley, a Negro attorney. The warrant, without specifying the statute that he had allegedly violated, charged Billingsley with acting as an agent for "a foreign corporation which was without a license authorizing it to do business in the State." The specific act was the filing of a deed, which conveyed land to PLD, with the Judge of Probate in Pell City, Alabama.

The next day defendant Waid, District Attorney for the 30th Judicial Circuit of Alabama, which includes St. Clair County, filed four complaints against PLD for failure to register as a foreign corporation. These complaints are not directly attacked in this action.

On November 21, 1969, defendants Wyatt, Bishop and Golden organized and conducted a meeting attended by approximately 2000 residents of St. Clair County. The meeting organized for the purpose of rallying public support for a "Stop the Muslims" movement was attended by defendant Strickland who spoke on behalf of the Alabama Legislative Commission to Preserve the Peace. Strickland warned that the Muslims "don't respect our flag and they support communist positions in many ways while they regard Christianity as the enemy," noted that violence initiated by whites could be a natural outgrowth of attempts by "black people" to buy land in St. Clair County, and stated that Attorney General Gallion intended to aid the white citizens of St. Clair County.

Defendant Gallion issued a statement (1) warning that "the so-called farms can easily be used for storage of weapons and training in guerrilla warfare," (2) warning the public not to sell land to Muslims "who engage in every type of subversive activity," and (3) pledging full support of his office to the white citizens of St. Clair County. Defendant Brewer in his weekly news conference pledged full support of his office to the various court proceedings against Billingsley, Holmes and PLD. Also, Brewer sent a telegram of support to the rally of St. Clair County citizens on November 21.

On December 2, the trustees of Pine Forest Missionary Baptist Church instituted a civil action in the Circuit Court of St. Clair County against some twenty defendants, including plaintiffs Billingsley, Holmes, and Davis and PLD. The complaint seeks damages in the amount of $250,000.00 for aggravated trespass and $250,000.00 for denying and infringing upon the church's use of its land.

On December 4, 1969, plaintiff Davis was arrested on a warrant sworn to by defendant Bishop on a charge of violating Code of Alabama, Title 10, § 21 (94). This charge developed when defendant Wyatt purchased a $5 check from a local service station where Davis had purchased gasoline with the check.

On January 7, 1970, plaintiff Davis was arrested on a warrant issued by defendant Waid on a charge of permitting livestock to run at large (Code of Alabama, Title 3, § 95).

I. This Court has jurisdiction over the subject matter under 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983. This case is a proper one for a three-judge district court under 28 U.S.C. §§ 2281, 2284.

II. Whether plaintiffs and defendants' classes are properly constituted under Rule 23, Fed.R. Civ.P.

Plaintiffs in their complaint contend that the members of plaintiffs' class are (1) Negro citizens of Alabama and their attorneys and (2) members, friends and associates of the Lost Found Nation of Islam. Defendants are alleged to represent: (1) all circuit and county officials and other persons in Alabama; (2) all members of Restore Integrity to Development (RID); (3) all district attorneys, assistant district attorneys, county solicitors and county attorneys in Alabama; and (4) all sheriffs in Alabama. Plaintiffs further contend that the prerequisites of Rule 23(a), (b) (1), (b) (2) and (b)(3) are satisfied.

Rule 23(a) states four requisites for bringing a class action.³ In addition, the case must satisfy one of the three requirements of Rule 23(b). Rule 23 (c)(1) provides that a court should determine "as soon as practicable after the commencement of an action" whether the class action complies with Rule 23 (a) and (b). If the court determines that the suit is not properly brought as a class action, the action may be treated as an individual suit by the named plaintiffs,⁴ or the class can be divided into subclasses which must separately meet the requirements of Rule 23(a) and (b). See Rule 23(c)(4).

As to the classes plaintiffs allegedly represent, the class all "Negro citizens of Alabama and their attorneys" is entirely too broad in the context of this...