, Shelton v. McKinley, 174 F. Supp. 351 (E.D. Ark. 1959) :: US LAW

Shelton v. McKinley, 174 F. Supp. 351 (E.D. Ark. 1959) :: US LAW

    Shelton v. McKinley, 174 F. Supp. 351 (E.D. Ark. 1959)

    US District Court for the Eastern District of Arkansas - 174 F. Supp. 351 (E.D. Ark. 1959)
    June eight, 1959

    174 F. Supp. 351 (1959)

    B. T. SHELTON et al., Plaintiffs,
    v.
    Ed. I. McKINLEY, Jr., et al., Defendants.

    Civ. No. 3708.

    United States District Court E. D. Arkansas, W. D.

    June eight, 1959.

    *352 *353 J. R. Booker, Christopher C. Mercer, Jr., Harold B. Anderson and Thad D. Williams, Little Rock, Ark., for plaintiffs.

    Herschel H. Friday, of Mehaffy, Smith & Williams, Little Rock, Ark., and Louis L. Ramsay, Jr., of Coleman, Gantt & Ramsay, Pine Bluff, Ark., for defendants.

    Before SANBORN, Circuit Judge, and MILLER and HENLEY, District Judges.

    PER CURIAM.

    This is a class motion wherein the plaintiffs[1] are seeking declaratory and injunctive remedy towards the enforcement of Act 10 of the Second Extraordinary Session of the Arkansas Legislature, held in August, 1958, and of Act 115 of the regular 1959 consultation of that body. It is said that those statutes are violative of the First and Fourteenth Amendments to the Constitution of america. Upon the submitting of the criticism, a statutory courtroom of 3 judges was convened, and the case has been attempted to that courtroom.

    Act 10 provides in substance that no man or woman shall be hired or elected to employment as a superintendent, most important or teacher in any public school in Arkansas, or as an teacher, professor or trainer in any public organization of higher getting to know in that State till such person shall have submitted to the best hiring authority an affidavit listing all groups to which he at the time belongs and to which he has belonged in the course of the past five years, and also listing all companies to which he at the time is paying regular dues or is making ordinary contributions, or to which in the beyond 5 years he has paid such dues or made such contributions. The Act similarly gives, amongst other matters, that any agreement entered into with any individual who has now not filed the prescribed affidavit shall be void; that no public moneys will be paid to such man or woman as repayment for his services; and that this type of funds so paid can be recovered lower back either from the character receiving such budget or from the board of trustees or other governing frame making the price. The submitting of *354 a fake affidavit is denounced as perjury, punishable by means of a exceptional of now not much less than 5 hundred nor multiple thousand bucks, and, in addition, the character submitting the fake affidavit is to lose his coaching license.

    Section 1 of Act 115 makes it unlawful for any member of the National Association for the Advancement of Colored People (hereinafter called NAACP) to be hired by using the State of Arkansas or any of its subdivisions, or by using any college district, and proclaims that the prohibition of such employment shall preserve as long as club within the NAACP exists. Section 2 authorizes using corporations to require from any worker a testimony as to whether or not he is a member of the NAACP and a refusal to grant the affidavit is made a floor for dismissal from employment.

    Section 3 of the Act affords in substance that any individual discharged from or declared ineligible for public employment as a result of NAACP membership can also, inside four months of such dismissal or assertion, petition the circuit court for an order to expose motive why a hearing on the charges against him have to no longer be had; that till the final judgment on such listening to the dismissal or announcement of ineligibility will be stayed; that the hearing shall consist of the taking of evidence with the proper of pass-exam, and that the load of maintaining the validity of an order of dismissal or announcement of ineligibility via a truthful preponderance of the credible proof will be upon the individual making such dismissal or declaration of ineligibility.

    The operative sections of this statute are preceded by means of a preamble, the gist of that is that the NAACP has been guilty of making racial strife and turmoil inside the State of Arkansas; that it has threatened progress in race relations in the State; that it has striven to fire up dissatisfaction and unrest among Negroes, and that because of its purposes and activities membership therein is incompatible with the "peace, tranquility and development that each one citizens have a right to experience." The preamble also incorporates a recitation that the Special Education Committee of the Arkansas Legislative Council[2] has observed that the NAACP "is a captive of the global communist conspiracy".

    When the in shape became at the start filed, B. T. Shelton become the simplest named plaintiff, and the original defendants have been the Little Rock, Arkansas Special School District, the members of the Board of Directors of that District, and the Superintendent of Schools. Subsequently, an amended criticism became filed adding ATA and its executive secretary as plaintiffs, and adding as defendants the Pine Bluff, Arkansas, Special School District, the participants of the School Board of that District and the Superintendent of Schools, and the Board of Trustees and President of the Arkansas A. M. & N. College for Negroes.

    Also named as defendants had been Bruce Bennett, Lawyer General of the State of Arkansas, and Frank Holt, Prosecuting Lawyer of the Sixth Judicial Circuit of Arkansas, which incorporates Little Rock. Both the legal professional fashionable and the prosecuting legal professional filed motions to push aside, and at the commencement of the trial it was agreed that the criticism is probably brushed off as to them with out prejudice. Also named as participants of the Pine Bluff School Board have been Ralph Mitchell, Jr., and J. C. Langley. It advanced that any such gents had never been a member of the Board, and that the other had resigned previous to the submitting of the suit, and it turned into agreed that the case is probably dismissed as to them.

    Reduced to necessities, the claim of the plaintiffs is that the two statutes in question deprive the plaintiff Shelton and others in addition situated, and the members of ATA of liberty and assets with out due procedure of regulation, that they *355 deny them the equal protection of the law; that they infringe upon their rights of freedom of speech, freedom of press, freedom of meeting and affiliation and to petition for redress of grievances, and deny them privileges and immunities of citizens of the USA. It is similarly claimed that Shelton and the plaintiff class are threatened with irreparable damage and have no adequate remedy at law.

    In their answers the defendants deny the claim of the plaintiffs that the statutes are unconstitutional; they similarly contend that this courtroom is without jurisdiction, and that this isn't a right elegance action. In the alternative, they ask that proceedings herein be stayed until the 2 statutes can be construed by means of the Arkansas nation courts.

    It seems that plaintiff Shelton has been employed as a instructor in the Little Rock Public School System for some of years, and that he's a member of the NAACP; that on April 3 of the modern-day 12 months he and different instructors within the Little Rock system have been called upon to put up the affidavits required by Act 10; that he declined to do so at the floor that the statute violated his constitutional rights; and that ultimately he received a letter signed by means of 3 participants of the Little Rock School Board advising him that his agreement had now not been renewed for the 1959-60 college year and could now not be renewed. By purpose of a quite extraordinary situation that existed with admire to the Little Rock School Board while the healthy was filed and on the day of trial, which situation we discover it useless to detail, there's a few uncertainty with admire to the precise reputation of Shelton s agreement and people of sure other instructors who declined to submit the Act 10 affidavits. It has been stipulated, however, that the Little Rock School Board will act in conformity with ruling State statutes, and it's miles simple that if those statutes stand, Shelton will inevitably sense their effect if he has not already completed so. Thus, we are satisfied that Shelton s situation affords a case or controversy among him and the Little Rock School District with recognize to which this court docket has jurisdiction.

    The declare that this is not a right magnificence action requires no extended comment, given that it's miles now well settled that a in shape of this type, at the same time as no longer a "actual magnificence movement" can be maintained for the advantage of the named plaintiff and "others further situated" underneath the provisions of Rule 23, F.R.Civ.P., 28 U.S.C.A. See the total discussion of such an motion and of the impact of a judgment therein contained in 3 Moore s Federal Practice, second Ed., pp. 3442-3450, 3455-fifty six, and 3465-68.

    With regard to the contention that this court docket ought to not proceed herein until the statutes were construed via the State courts, we, of course, appreciate the doctrine of "equitable abstention", as it is on occasion known as, and it's been carried out on this district now not every so often. However, this doctrine is discretionary in its utility, no longer jurisdictional. We see no issues of statutory construction in this case which might circulate our discretion to live complaints as the defendants choice. Cf. NAACP v. Patty, D.C. Va., 159 F. Supp. 503; see also dissenting opinion of Judge Parker in Bryan v. Austin, D.C.S.C., 148 F. Supp. 563, 567. Moreover, this is contract time with the faculty districts in Arkansas. Both instructors and administrators of those districts need to understand wherein they stand with admire to both acts. Should proceedings herein be stayed, unavoidably there might be undesirable put off and confusion probably to be followed by means of a multiplicity of suits in numerous sections of the State. Accordingly, we are of the view that the general public hobby calls for a willpower of the Constitutional questions supplied by way of the report.

    While there's positive language inside the complaint which can suggest that the plaintiffs sense, as a minimum to a positive quantity, that the two statutes must be study together, we sense that they have to be considered one at a time. Cf. Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 720, 71 S. Ct. 909, *356 95 L. Ed. 1317. And in view of positive choices of the Supreme Court currently to be stated, we're glad that Act 10 is constitutional. On the alternative hand, it is clean that Act a hundred and fifteen is unconstitutional.

    Act 10, unlike Act 115, does no longer make beyond or gift club in any corporation a ground for discharge of or for refusal to appoint a faculty teacher or university professor. It surely calls for the local college forums and the governing our bodies of institutions of better getting to know to ascertain the affiliations in their respective colleges. Once that data has been provided, to date as Act 10 is concerned, the nearby board or the governing body of a college is loose to take any motion it may pick with admire to the employment status of a given man or woman.

    A public organization has a right to understand the businesses to which its personnel, along with faculty teachers, belong or have belonged, or to which they're making or have made monetary contributions. This proper has been identified in Garner v. Board of Public Works, supra; Adler v. Board of Education of City of New York, 342 U.S. 485, seventy two S. Ct. 380, ninety six L. Ed. 517; Beilan v. Board of Public Education, School District of Philadelphia, 357 U.S. 399, 78 S. Ct. 1317, 2 L. Ed. second 1414; and Lerner v. Casey, 357 U.S. 468, seventy eight S. Ct. 1311, 2 L. Ed. second 1423.

    In the Garner case the Court, in upholding a demand that public employees sign a testimony revealing whether they have been participants of the Communist Party or of the Communist Political Action Association, and in that case putting forth the dates and periods of club, said:

     
    "We suppose that a municipal business enterprise is not disabled because it's far an organisation of the State from inquiring of its employees as to subjects that could prove relevant to fitness and suitability for the general public carrier. Past conduct can also well relate to offer health; past loyalty may properly have an inexpensive dating to present and destiny agree with. Both are usually inquired into in figuring out fitness for both high and low positions in non-public enterprise and are not less applicable in public employment. * * *" 341 U.S. at page 720, seventy one S.Ct. at page 912.

    In Adler v. Board of Education of City of New York, supra, there was before the Court a venture of the New York statutes designed to clear subversives from employment in the public faculty gadget. It become claimed that those statutes violated the freedom of speech and assembly of people employed or looking for employment in the public colleges. The Court said:

     
    "It is apparent that such persons have the right beneath our law to gather, talk, suppose and agree with as they will. American Communications Ass n, C.I.O. v. Douds, 339 U.S. 382, 70 S. Ct. 674, 94 L. Ed. 925. It is equally clear that they have no proper to paintings for the State in the college gadget on their personal terms. United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. seventy five, 67 S. Ct. 556, 91 L. Ed. 754. They may match for the faculty gadget upon the affordable terms laid down by the proper government of New York. If they do not choose to work on such phrases, they're at liberty to keep their ideals and institutions and move somewhere else * * *" 342 U.S. at web page 492, 72 S.Ct. at web page 384.

    A little in addition on inside the opinion, the Court, after saying that it become adhering to the Garner case, supra, went on to nation:

     
    "* * * A trainer works in a sensitive location in a schoolroom. There he shapes the mind-set of young minds towards the society wherein they live. In this, the country has a important subject. It ought to maintain the integrity of the faculties. That the faculty government have the right and the responsibility to display screen the officials, instructors, and personnel as to their fitness to maintain the integrity of *357 the schools as a part of ordered society, can not be doubted. One s associates, past and present, in addition to one s conduct, may additionally nicely be taken into consideration in figuring out fitness and loyalty. From time immemorial, one s popularity has been determined in element with the aid of the employer he keeps. In the employment of officials and teachers of the faculty device, the country may additionally very well inquire into the business enterprise they maintain, and we recognise of no rule, constitutional or otherwise, that stops the country, while figuring out the health and loyalty of such people, from considering the agencies and folks with whom they companion." 342 U.S. at web page 493, 72 S.Ct. at page 385.

    Garner and Adler were each adhered to much less than a 12 months in the past in Beilan v. Board of Public Education, supra, in which the court docket upheld the discharge of a school trainer due to his refusal to answer questions placed to him with the aid of his superintendent relative to his Communist affiliations and sports. The Court said:

     
    "By carrying out teaching within the public colleges, petitioner did no longer give up his proper to freedom of belief, speech or affiliation. He did, however, adopt duties of frankness, candor and cooperation in answering inquiries made of him by way of his employing Board inspecting into his fitness to serve it as a public faculty trainer." 357 U.S. at page 405, seventy eight S.Ct. at web page 1321.

    Further on inside the identical opinion the Court stated that there has been no requirement inside the Federal Constitution that a trainer s school room conduct be the only basis for determining his health, and that such health "relies upon on a huge variety of things." 357 U.S. at web page 406, 78 S.Ct. at web page 1322. In discharging their annual obligations[3] of choosing new instructors and determining which of the antique ones must be retained in employment, Arkansas school boards and college trustees are not involved alone with the professional education or educational competency in their employees or applicants for employment, or maybe with their loyalty to this country. While club in a subversive employer, which include the Communist Party, is, of direction, a applicable thing bearing upon a person s fitness for employment as a college teacher or college instructor, different elements are relevant as well. A college board in venture to choose instructors is entitled to think about not best an applicant s competency and loyalty, but additionally his or her character, habits and manner of residing, and social, professional, and political historical past and affiliations, to the stop that it can pick out no longer simplest able instructors, but those whose employment or retention in employment is to the first-class interest of all concerned.

    This does no longer imply, of route, that the Legislature can require a neighborhood school district or institution of better studying to make inquiries of its personnel or applicants for employment which are fully inappropriate to their suitability for employment. Thus, in National Association for Advancement of Colored People v. State of Alabama, 357 U.S. 449, seventy eight S. Ct. 1163, 2 L. Ed. second 1488, referred to via the plaintiffs, it was held that the Association couldn't be pressured with the aid of a State courtroom to reveal its membership lists in reference to an movement delivered via the State as a consequence of its alleged noncompliance with the Alabama statutes *358 coping with overseas corporations. The Court said:

     
    "* * * The problems in the litigation started out by Alabama * * * have been whether or not the individual of petitioner and its sports in Alabama had been which include to make petitioner challenge to the registration statute, and whether or not the quantity of petitioner s activities without qualifying recommended its everlasting ouster from the State. Without intimating the slightest view upon the deserves of those troubles, we are unable to perceive that the disclosure of the names of petitioner s rank-and-file contributors has a substantial referring to either of them". 357 U.S. at page 464, 78 S.Ct. at web page 1173.

    We think that the statistics required by using Act 10 is applicable. The truth that some educators and participants of the general public may feel that this requirement is unwise, or unnecessary or even insulting does no longer imply that the statute is unconstitutional. Those are considerations of the legislative, now not the judicial branch of the authorities. We hold, however, that the mere failure of a instructor who became a member of the National Association for the Advancement of Colored People, to supply the affidavit required by way of Act 10 even as Act a hundred and fifteen was ostensibly in impact, thereby making himself ineligible for public employment by means of the terms of the latter Act, did no longer and does not compel or justify his discharge or render him ineligible for re-employment.

    Taking up Act one hundred fifteen, there can be no doubt that the Act makes any member of the NAACP ineligible for public employment within the State of Arkansas. Section 3 of the Act, which offers to any individual dismissed from or declared ineligible for employment beneath the provisions of the Act a proper to petition for an order to expose motive why a listening to on such prices have to not be had, does no longer trade or modify the command of the Act. That segment offers one who was brushed off or denied employment on the ground that he changed into a member of the NAACP, and who claims that he turned into no longer a member, an possibility to reap a hearing on that issue on my own. Once club is established, then discharge or a statement of ineligibility robotically follows. Further, with the aid of the phrases of the Act one that gives public employment to a member of the NAACP is problem to a first-class of now not more than $100 for every such offense.

    Under the Fourteenth Amendment to the Constitution of the US, as construed in Wieman v. Updegraff, 344 U.S. 183, seventy three S. Ct. 215, ninety seven L. Ed. 216, and Slochower v. Board of Higher Education of City of New York, 350 U.S. 551, seventy six S. Ct. 637, 100 L. Ed. 692, the statute is sincerely unconstitutional since it makes mere club in the NAACP a floor for dismissal from or a declaration of ineligibility for public employment, no matter whether the employee or applicant concerned had any knowledge of or sympathy with the goals and purposes of the company, as declared by means of the Legislature, or had actively participated within the sports discovered through the Legislature to be anti-social and unwanted, or whether he turned into completely harmless of such understanding, sympathy or participation and had joined and become desirous of keeping his membership in the Association out of sympathy with its publicly introduced goals that are truely lawful.

    Even if the recitals of the preamble to the statute to the effect that the NAACP is devoted to the introduction of racial unrest and turmoil are taken at face cost, there's no declaration that the purposes and activities of the agency are designed to overthrow the government or that they are violative of any statute.[4]

    *359 While public using corporations have a extensive if no longer limitless discretion in selecting their employees, it does now not follow that the Legislature can by way of statute require such companies to use a completely arbitrary and discriminatory wellknown in hiring and firing. On the contrary, Wieman v. Updegraff and Slochower v. Board of Higher Education, each supra, set up that such can't be achieved.

    This Court, of course, can not do in any other case than observe the choices simply referred to. Weiman v. Updegraff worried the constitutionality of a statute of Oklahoma which required every kingdom officer and employee, as a condition of his employment, to take an oath mentioning that he was now not, and had no longer been for the preceding 5 years a member of any employer indexed by using the Lawyer General of the US as "communist front" or "subversive" and which statute, as construed by way of the State Supreme Court, barred men and women from country employment solely on the basis of membership in such enterprise, no matter their understanding concerning the sports and purposes thereof. By an opinion wherein all of the Justices concurred, the Supreme Court held that the Act in in shape, as for this reason construed, violated the Due Process Clause of the Fourteenth Amendment through making humans ineligible for public employment solely on the basis of organizational club, no matter their knowledge regarding the groups to which they'd belonged. In so doing the Court outstanding its prior selections involving nation legislation geared toward safeguarding the general public service from disloyalty, specifically, Garner v. Board of Public Works, supra; Adler v. Board of Education, supra, and Gerende v. Board of Supervisors, 341 U.S. fifty six, 71 S. Ct. 565, 95 L. Ed. 745.

    In the course of its opinion the Court stated:

     
    "There may be no dispute approximately the outcomes visited upon someone excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has end up a badge of infamy. Especially is that this so in time of bloodless battle and warm emotions while `each man begins to eye his neighbor as a probable enemy. Yet below the Oklahoma Act, the fact of association on my own determines disloyalty and disqualification; it subjects not whether affiliation existed innocently or knowingly. To consequently inhibit individual freedom of motion is to stifle the drift of democratic expression and controversy at certainly one of its leader assets. We maintain that the distinction discovered among the case at bar and Garner, Adler and Gerende is decisive. Indiscriminate type of innocent with knowing activity have to fall as an declaration of arbitrary power. The oath offends due manner." 344 U.S. at pages a hundred ninety-191, seventy three S.Ct. at page 218.

    And in Slochower v. Board of Higher Education, supra, it became stated:

     
    "* * * In Wieman v. Updegraff, 344 U.S. 183, seventy three S. Ct. 215, ninety seven L. Ed. 216, we struck down a so-known as `loyalty oath because it based employability solely at the truth of club in sure organizations. We mentioned that club itself may be innocent and held that the type of innocent and guilty together turned into arbitrary. This case rests squarely at the proposition that `constitutional safety does amplify to the general public servant whose exclusion pursuant to *360 a statute is patently arbitrary and discriminatory. 344 U.S. at web page 192, 73 S.Ct. at page 219." 350 U.S. at web page 556, seventy six S.Ct. at page 640.

    See additionally Sweezy v. State of New Hampshire, 354 U.S. 234, 242, 251, seventy seven S. Ct. 1203, 1 L. Ed. 2nd 1311.

    Since the truth of association on my own can not be used to decide disloyalty or disqualification, it's far obvious that mere membership within the NAACP cannot be made a bar to public employment.

    While the plaintiffs are entitled to a declaratory judgment to the impact that the State of Arkansas can not constitutionally require that someone be discharged from public employment or be declared ineligible therefor merely due to the fact he belongs to the NAACP, from which it necessarily follows that public hiring officers cannot be effectively prosecuted for declining to comply with the sort of popular, it does not comply with that this Court, as a court of fairness, can compel any college board to lease someone as a teacher, or to hold him in its employment, or to forbid it to discharge him. This is genuine because of the well-settled principle that an fairness court, as a minimum in the absence of a statute or of a scenario where an employee has a vested proper to or interest in his employment, will now not intervene by using injunction with the energy of an enterprise to determine whom he will hire or keep in his employment. As we have seen, school instructors in Arkansas have no vested rights in their jobs, and no right of reinstatement if wrongfully discharged. If a instructor is discharged in violation of his contract, his treatment is an motion for damages. Such being the case, we do not accept as true with that injunctive remedy is suitable right here, nor, from a sensible point of view, do we suppose it important at this time.

    It is, consequently, with the aid of the court considered, ordered, adjudged and decreed:

    1. That without objection the motions to disregard filed herein via Honorable Bruce Bennett, Lawyer General of the State of Arkansas, and by using Honorable Frank Holt, Prosecuting Lawyer of the Sixth Judicial Circuit of the State of Arkansas, are granted without prejudice.

    2. That with out objection the motions to push aside filed by the defendants Ralph Mitchell, Jr. and J. C. Langley are granted.

    three. That to the quantity that the plaintiffs are looking for declaratory and injunctive relief with appreciate to Act 10 of the Second Extraordinary Session of the 61st General Assembly of the State of Arkansas, the complaint and amended complaint are with out benefit and are disregarded with prejudice.

    four. That the prayer of the plaintiffs for declaratory relief with appreciate to Act one hundred fifteen of the everyday session of the 62nd General Assembly of the State of Arkansas be, and the equal hereby is granted, and that said statute be, and it hereby is, adjudged to be invalid and unenforceable as contravening the Fourteenth Amendment of the Constitution of the US.

    NOTES

    [1] The plaintiffs are: B. T. Shelton, a Negro college instructor hired within the Little Rock public college gadget; the Arkansas Teachers Association (ATA), a professional organization, the club of which includes Negro faculty teachers and university professors within the State of Arkansas; and T. W. Coggs, the Executive Secretary of ATA. The plaintiff, Shelton, sues for himself and others further situated; and the ATA and Coggs are suing for the gain of members of the Association.

    [2] The Arkansas Legislative Council is an enterprise of the Arkansas Legislature which functions during interims among periods, makes studies of legislative issues, and reviews thereon to the Legislature.

    [3] In considering this case it's far critical to undergo in thoughts that Arkansas, in contrast to sure other States, does not have any civil service device for its public college instructors. Those teachers normally are employed on a 12 months-to-12 months foundation, and whilst a wrongful discharge during a faculty yr in breach of agreement is actionable, the handiest specific activity security that a instructor has beyond the end of a 12 months is the statutory provision that if a instructor is not notified inside 10 days after the cease of a college 12 months that his agreement has no longer been renewed, it's miles routinely renewed for the subsequent 12 months. Ark. Stats.1947, Section 80-1304(b); Wabbaseka School District No. 7 of Jefferson County v. Johnson, 225 Ark. 982, 286 S.W.2d 841.

    [4] See Judge Parker s dialogue of a comparable preamble to the South Carolina statute worried in Bryan v. Austin, supra. With regard to the announcement that the NAACP is a captive of the Communist conspiracy, it's miles to be mentioned that the Legislature did no longer find that such was a truth, however clearly stated that a committee of the Arkansas Legislative Council had so observed; and even as the Lawyer General of Arkansas testified at the trial of this case that the findings of that committee were earlier than the Legislature when it followed Act one hundred fifteen, he did now not testify that the Legislature itself had ever adopted the ones findings as its personal. Thus, it's miles needless for us to determine whether the Legislature had a proper to make any such finding, or to decide what effect have to take delivery of to it had it in reality been made.