Wallace v. Brewer

OPINION

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 *436 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 *437 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 cheek 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 litigation. The plaintiffs premise their action principally on a violation of their first and fourteenth amendment rights and their right under 42 U.S.C. §§ 1981 and 1982 to make contracts and to hold and own property in connection with an attempt by Black Muslims to purcháse land and operate farms in St. Clair County. The class action considered in this context does not meet two of the requirements of Rule 23(a): “(2) there are questions of law or fact common to the class” and “(3) the claims * * * of the representative parties are typical *438 of the claims * * * of the class * * * ” 5

The other class which plaintiffs claim to represent — members, friends and associates of the Lost Found Nation of Islam — satisfies the class action requirements of Rule 23(a) and Rule 23(b)(2). 6 It could conceivably be argued that the class is not so numerous that joinder of all members is impracticable. See Rule 23(a)(1). However, impossibility of joinder is not required; 7 it is difficult to determine at this time which members of the Lost Found Nation, if any, will be working on the farms in St. Clair County and who their “friends” and “associates” will be.

As to the class defendants are alleged to represent, 8 Rule 23 is not satisfied for the same reasons given above with respect to plaintiffs’ class of all “Negro citizens of Alabama and their attorneys.” See Rules 23(a)(3), 23(b) (2). The individual defendants are allegedly attempting to prevent Black Muslims, their friends and associates from developing a farm in St. Clair County. It is only speculative whether plaintiffs will attempt to develop farms in other areas of Alabama and, if they attempt to do so, whether the officials in that county will initiate a planned program to prevent the development. 9

Defendants also allegedly represent the class “all members of Restore Integrity to Development.” The deposition of one defendant discloses that there are four members in this organization, which evidence is uncontradicted. Therefore Rule 23(a)(1) is not satisfied and the attempted joinder of this particular class must fail.

In summary, the only class which meets the requirements of Rule 23 is plaintiffs’ class — members, friends and associates of the Lost Found Nation of Islam. Otherwise, the parties to this action are the individual plaintiffs and defendants.

III. The constitutionality of various state statutes.

Plaintiffs contend that Code of Alabama, Title 14, §§ 97(l)-(8) and Title 10, §§ 21(93) and 21(94) are unconstitutional on their face and as applied to *439 plaintiffs. They also contend that Title 14, § 426 is unconstitutional as applied to plaintiffs. In addition, plaintiffs allege that the arrest of individual plaintiffs under these statutes is pursuant to a planned scheme of bad faith enforcement to prevent the Black Muslims, specifically plaintiffs and the class which they represent, from developing a farm in St. Clair County. The bad faith enforcement of these statutes will be discussed below in connection with injunctive relief.

Sections 97(l)-(8), Title lb,

Code of Alabama.

Initially, it should be pointed out that the statutory scheme, Title 14, §§ 97(1) — (8), pertains to the communist party, members of the communist party, communist front organizations, and members of communist front organizations. The one exception is section 97 (4a) which requires the registration of communists, nazis, muslims and members of communist front organizations. The statutory scheme is thus applicable to plaintiffs only insofar as section 97 (4a) requires them to register as muslims. Therefore, plaintiffs have standing only to challenge the constitutionality of sec-ion 97 (4a), and not the entire statutory scheme. See Jenkins v. McKeithen, 395 U.S. 411, 423-425, 89 S.Ct. 1843, 23 L.Ed. 2d 404 (1969); Flast v. Cohen, 392 U.S. 83, 99-106, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Plaintiffs challenge the constitutionality of section 97 (4a), 10 both on its face *440 and as applied, on grounds: (1) that the statute infringes upon first amendment rights due to vagueness and overbreadth; (2) that it violates the self-incrimination clause of the fifth amendment; and (3) that the statute is invalid under the pre-emption doctrine to the extent' it purports to regulate and control subversive activities. Because we find section 97(4a) unconstitutional on first amendment grounds, we do not reach plaintiffs’ last two contentions.

Thre are two approaches in examining the statute's effect on first amendment rights: (1) Whether the Black Muslims and the Lost Found Nation of Islam constitute a religion, and, if so, whether section 97 (4a) intrudes upon their freedom of religion (and thus violates the free exercise clause of the first amendment) ;. or (2) whether the statute constitutes a vague and overbroad condemnation of political association, thus infringing upon plaintiffs’ freedom of association. Our analysis of the statute Is limited to the second approach.

It is clear that sweeping condemnations of political association must fall as vague and/or overbroad. United States v. Robel, 389 U.S. 258, 265-266, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Elfbrandt v. Russell, 384 U.S. 11, 18-19, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307-308, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Although a state may have a legitimate and valid governmental purpose, 11 “that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960); see Elfbrandt v. Russell, supra, 384 U.S. at 18, 86 S.Ct. 1238; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961).

The defendants contend that the State of Alabama has a right to protect itself against anarchy and therefore section 97(4a) is a reasonable exercise of its police power. In asserting this right, the defendants rely on New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184 (1928) and Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). Both of these cases are distinguishable.

In Bryant the Court upheld a New York statute requiring any unincorporated association which demanded an oath as a condition to membership to file with State officials a list of its membership. The Court emphasized the nature of the organization which New York sought to regulate, the Ku Klux Klan, and concluded that the State had a valid interest in requiring disclosure. 12 “The decision was based on the particular character of the Klan’s activities, involving acts of unlawful intimidation and violence, which the Court assumed was before the state legislature when it enacted the statute, and of which the Court itself took judicial notice.” 13 In this case, we cannot assume that “acts of unlawful intimidation and violence” were before the Alabama legislature when it enacted section 97(4a) in *441 September 1961. 14 Nor is there sufficient evidence in the record or elsewhere for the Court to conclude or to take judicial notice that the Black Muslims have engaged in “acts of unlawful intimidation and violence” in the State of Alabama. 15

In Communist Party v. Subversive Activities Control Bd., supra, the Supreme Court upheld the constitutionality of the requirement in the Subversive Activities Control Act of 1950 that the Communist Party register. In concluding that the registration requirement did not violate the freedoms of expression and association protected by the first amendment, Justice Frankfurter repeatedly emphasized that the Act applied “only to foreign-dominated organizations which work primarily to advance the objectives of a world movement controlled by the government of a foreign country.” 367 U.S. at 104, 90, 93-94, 95-97, 102, 105, 81 S.Ct. at 1414 (emphasis by Court). With such strong emphasis on the particular nature of the organization, this decision is not authority for defendants’ valid-state-interest argument.

Where a state attempts regulation in the first amendment area, “[p]reeision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963). Here, the statute closely touches the freedom of association guaranteed by the first amendment. 16 “Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” NAACP v. Alabama ex rel. Patterson, supra, 357 U.S. at 460-461, 78 S.Ct. at 1171. Section 97(4a) does not withstand this required close scrutiny and is impermissibly vague and over-broad in several aspects.

In subsections 2 and 3 of section 97 (4a), a registrant and a member of a muslim organization registering his organization are required to give “any other information requested by the department of public safety which is relevant to the purposes of this section.” With emphasis on precision in statutory regulation in the first amendment area, this requirement is obviously vague and overbroad. 17

*442 In subsection 1, all “muslims” who remain in Alabama for one day must register with the department of public safety. No definition of muslim is included in the statute. Although reference is made in subsection 3 to “muslim organizations,” this does not sufficiently define the term “muslim.” In requiring all muslims to register, whether or not they are members of an organization in which the state has a legitimate interest, the statute is susceptible to constitutional attack on grounds of over-breadth. As noted above, although a state may have a legitimate interest in an area, that interest cannot be pursued by means that broadly stifle first amendment rights when the end can be more narrowly achieved. Shelton v. Tucker, supra, 364 U.S. at 488, 81 S.Ct. 247.

When registering the muslim organization, a member is required by subsection 3 to list all members in the organization. This requirement is a restraint upon the first amendment freedom of association. NAACP v. Alabama ex rel. Patterson, supra; Louisiana ex rel. Gremillion v. NAACP, supra; Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); see United States v. Robel, supra, 389 U.S. at 266 n. 16, 88 S.Ct. 419; Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S. at 544, 83 S.Ct. 889. The cases which upheld the validity of a state satute requiring production of membership lists, New York ex rel. Bryant v. Zimmerman, supra, 18 and which upheld the registration requirement for the Communist Party, Communist Party v. Subversive Activities Control Bd., supra, on grounds that there was a legitimate and substantial governmental interest, are distinguished for reasons set forth above. See pp. 440 and 441, supra. 19

Because of these defects, the statute suffers the constitutional infirmity of vagueness and overbreadth. Even if these defects are removed and the statute is construed to apply only to Black Muslims, it is doubtful whether their registration is constitutionally permissible. Most registration cases or other freedom of association cases are concerned with production of membership lists 20 or with employment oaths. 21 We have located *443 few cases dealing with registration of individual members, all of which have held the registration unconstitutional for reasons that are inapplicable in this case. 22

However, the first amendment reasoning of the Supreme Court in the production of membership list cases is equally applicable where the statute requires registration of individual members. See NAACP v. Alabama ex rel. Patterson, supra, 357 U.S. at 460-466, 78 S.Ct. 1163; Louisiana ex rel. Gremillion v. NAACP, supra, 366 U.S. at 296-297, 81 S.Ct. 1333; Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S. at 543-544, 550-551, 83 S.Ct. 889. This reasoning was best exemplified in NAACP v. Alabama ex rel. Patterson, supra, 357 U.S. at 462, 78 S.Ct. at 1171-1172:

“This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Ass’n. v. Douds, supra [339 U.S. 382] at 402 [70 S.Ct. 674 at 686, 94 L.Ed. 925]: ‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances bp indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. Cf. United States v. Rumley, supra [345 U.S. 41] at 56-58 [73 S.Ct. 543 at 550-551, 97 L.Ed. 770] (concurring opinion).”

The defendants argue that the State of Alabama had a legitimate interest and purpose in requiring muslims to register. Although the question of legitimate state purpose remains a pertinent inquiry, 23 the cases in which the Supreme Court has found a legitimate and substantial governmental interest are clearly distinguishable. See pp. 440-441 and note 18, supra. Here, defendants have not presented sufficient evidence “of [an] ‘overriding and compelling state interest’ that would warrant intrusion into the realm of political and associational privacy protected by the First Amendment.” DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 829, 86 S.Ct. 1148, 1151, 16 L.Ed.2d 292 (1966); see Gibson v. Florida Legislative Investigation Committee, supra, 372 U.S. at 546, 83 S.Ct. 889. 24

For the above reasons, we conclude that section 97(4a) is an unconstitutional abridgement upon the first amendment right of freedom of association.

*444 Sections 21 (93) & (94), Title 10, and Section 426, Title 14, Code of Alabama.

Plaintiffs also challenge the constitutionality of Title 10, §§ 21(93) and 21 (94) and Title 14, § 426, Code of Alabama. Their attack on the constitutionality of these statutes is cursory; their principal argument is that defendants were using these statutes as a means of harassment in denying plaintiffs certain constitutional rights. This contention will be discussed below in connection with plaintiffs’ request for injunctive relief.

Both sections 21(93) and 21(94) prohibit an individual from acting as an agent of an unregistered foreign corporation. 25 Section 21(93) provides for a maximum fine of $500, while section 21(94) authorizes sanctions of $1000 maximum fine and/or twelve months’ imprisonment. Contending that each section prohibits the same conduct, plaintiffs argue that state officials are granted complete discretion to charge one accused of acting as an agent of an unregistered corporation with violating either a criminal statue or a civil statute.

Initially, it should be pointed out that plaintiffs’ premise that each section prohibits the identical conduct is not entirely accurate. Section 21(93) prohibits any person to act as an agent or to transact business for (or on behalf of) any unregistered foreign corporation. Section 21(94) prohibits any unregistered foreign corporation, its agents, its servants, or its officers from making any contract, agreement, undertaking or engagement with or on behalf of the foreign corporation. Although certain acts could fall within the conduct proscribed by both sections, the sections are not totally or entirely focused on identical conduct.

Even assuming that the sections were identical in the conduct proscribed, there would seem to be no constitutional infirmity unless plaintiffs could demonstrate that state officials were enforcing the statute unequally, e. g., that only members of their class were being prosecuted under section 21(94), while all other violations were brought under section 21(93). However, we pretermit consideration of whether there has been unequal enforcement of the statutes. 26 To obtain equitable relief from state prosecution in this case, the plaintiffs must attack the state statute on its face as abridging first amendment rights, Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 14 L.Ed. 2d 22 (1965), instead of challenging the constitutionality of the statute on the ground that it is unequally enforced in violation of the equal protection clause of the fourteenth amendment.

*445 Plaintiffs also attack the constitutionality of Title 14, § 426, 27 claiming that it is unconstitutionally applied. For the reasons given in the preceding paragraph, we pretermit consideration of this contention.

IV. Alabama Legislative Commission to Preserve the Peace.

Plaintiffs also attack the constitutionality of House Joint Resolution No. 5 which establishes the Legislative Commission to Preserve the Peace. In challenging the validity of the Resolution, plaintiffs do not contend that the State of Alabama cannot establish a legislative commission to investigate areas of legitimate state interest. Nor do they contend that none of the Commission’s present activity is in furtherance of legitimate state interests (e. g., drug usage, campus disorder). Plaintiffs do contend, however, that the delegation of authority from the State Legislature, through the enabling resolution, is too vague and overbroad to indicate sufficiently the scope of the Commission’s power to investigate.

Although the defendants do not challenge plaintiffs’ standing, we must determine that issue in that the question of standing goes to the court’s jurisdiction. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). In McKeithen the plaintiff challenged the constitutionality of a Louisiana Legislative Commission, both on its face and as applied. Plaintiff’s standing was challenged on grounds that (1) he had not been called before the Commission to testify, nor did he expect to be called in the future, and (2) he had not demonstrated that he had been, or would be, injured by the operation of the challenged statute.

The Court found that the complaint “allege[d] that the Commission and those acting in concert with it have taken and will take in the future certain actions” against plaintiff. 28 These allegations were sufficient to create the threat “of direct and substantial injury to his own legally protected interest to accord him standing to challenge the constitutionality of [the legislative commission].”