Bennett v. N.A.A.C.P.

750 Atty. v. N.A.A.C.P. General

Bennett, 5-2575 2d S. W.

Opinion June delivered 1963.

[Rehearing September 9, 1963.] denied Bennett, Bruce Atty. General, by Jack Lessen- L. berry, General and John T. Jernigan, Prose- Atty. Asst. appellant. for cuting Attorney, Howard, George Jr., Robert L. Garter and Maria Marcus, L. New York, for N.Y., appellee. Associate Justice. appeal This McFaddin,

Ed. F. poses question of constitutionality four Acts adopted at the Second Session1 of Extraordinary 1958 General Assembly Arkansas. The adopted Acts session, at that and here involved, are: Act No. August 26, 1958, pursuant The session on convened to a Procla Governor, and, mation which called the session “To consider if advised, following purposes: laws regulate so administration enact 1. To financing education, school and and to appropriation purposes. appropriation make for such 2. To make pay expenses Assembly.” per Extraordinary diem of this Session of the require any county empowered county judge specified engaged organizations con- activities certain required furnish stated and with the schools to nected information; empowered Attorney the which 13, Act No. rec- files, to the of to obtain access Arkansas General organizations; correspondence, certain etc. of ords, crime which added additional definitions 14, No. penalties; prescribed barratry 16, Act No. of main- crime of additional definitions to the which added penalties. prescribed text of each The full tenance and seq. Pages may of in 2023 et be found of these Acts printed As- 2 the of the 1959 General of Acts Volume sembly. of National for the Advancement

The Association People, joined filed officers, with some of its Colored Chancery seeking a de- Court, the Pulaski this suit claratory judgment of the four to the effect that each in this suit was unconstitutional.2 The defendants Acts Attorney the the of Prosecut- Arkansas, were General County ing Attorney of District of which Pulaski the Upon part, County Judge County. and the of Pulaski joined, terms, the was heard and the issues cause ore Chancery 16 un- 12, decree was that Acts 14 and were and that Act No. 13 valid. The cor- constitutional, was challenged by both of that decree is direct rectness appeal.3 cross Attorney

AI. Justiciable Issue. At outset, proper General insists this is not a case for a de claratory judgment being because there is no effort made 2 was, prayer complaint alia, judg for inter “. . . a declaring 12, 13, 14, or decree Acts Nos. and 16 of the 1958 ment Extraordinary Assembly uncon Session of the General to be Second they deny stitutional, represent, the plaintiffs, in that these measures the classes lawyers contributors, engaged acting good faith, equal protection process guaranteed by and due 14th Amend to the Constitution of the United States.” ment delayed pendency have our decision in this We case because Court of the United States of the case NAACP v. Button, Attorney Virginia, Robert Y. involved barratry Virginia statute of similar to our Acts 14 and 16. The Su preme States of National Asso Court of the United decided the case People Button, Attorney ciation Advancement Colored. v. Virginia, January 415, 14, ed. General 2d on 1963. See 371 U.S. L. 83 S. Ct. 328.

by anyone proceed against plaintiffs (appellees) under of these Acts. This insistence to meet fails the issue. The NAACP first filed suit in the United States District Court for the Western Division of challenged Eastern District of four Arkansas three-Judge A Acts here involved. Federal Court held, proceed on October 8,1959, the NAACP should first in the Arkansas Courts. The NAACP and the other plaintiffs present declaratory then filed this suit for judgment Chancery in the Pulaski Court, and we hold— justiciable as did the controversy Chancellor—that a presented. Chancery II. Acts Nos. 14 and 16. The held each of these Acts to be and we unconstitutional; quote opinion the Chancellor’s on each of Acts: these

“ACT NO. 12. purpose “Act 12No. has for its stated the main- taining public peace of law, and order in the administration of Briefly provides

schools. any it that whenever organization (which political, includes civic, fraternal, mutual kind) engaged benefit, medical, trade or other designed in ‘activities to hinder, harass and interfere powers with of duties the State of Arkansas to con- operate public trol and County Judge its schools’ the may ‘request’ organization County that the file with Clerk certain revealing under information, oath, purposes name, tion. organiza- members, officers and of the Assumedly objectionable feature of the Act is requirement that a list of the members must be made public, depriving thus the members of their asserted right privacy. to . . .

“Regardless purpose, of how laudable its Act No. scope 12 is too broad in its to meet constitutional re- quirements. plain language, any organization Under its questions ‘power duty’ which opera- the State’s or in the opinion three-Judge The memorandum of the Federal Court is in transcript us; Judges before and the on that Court were Circuit Judge Sanborn, Judges John B. and District John E. Miller and J. Henley. Smith provi- comply public with its must schools tion of the publication their subject of members to sions legal every citizen has fundamental that names. It is question in a right to to the Courts to and inherent access any peaceable action the State of manner lawful and powers This any duties. of its the exercise regards only applies with not State, to the action of the activity public other schools, but to powers may it and duties. effect exercise its subject any organization members whose No. is legality ruling or on the Court desire to seek constitutionality of the State towards the action public or with relation to schools schools Any publicity which to constitutes harassment. some Legislature act or effect which has as its right untram- denial of the of the citizen to free and or which intimida- meled access Courts seeks discourage the exercise tion, otherwise, vexation or plainly right can unconstitutional. No obstacle placed legally the citizen and his Court. between pro- Article the Arkansas Constitution 2, Section : vides

‘Every person remedy in entitled to a certain injuries wrongs may the person, property for all he in his laws receive ought justice he character; to obtain freely, purchase, completely, without without promptly delay, conformably denial, without to ’ laws. “By language the above the framers of our Con justice specifically may stitution have stated be ob purchase freely tained without vexation, without promptly. by right infringed citizen This of the cannot be Railway

legislative act. Iron St. Mtn. v. Wil Louis Riggs 492; 506. liams, ‘‘ Martin, 49 Ark. Co. v. 5 Ark. upon yet ground Act must There is another which this Although ‘organization’ fail. under Section the term provisions given is a wide under the of Sec definition, organizations required only tion the Act 3 of those are subject comply to with the of that Act which are terms ‘request’ County Judge. to the dis- Thus, cretionary County Judge necessary bring act of the play provisions against any organi- into of the Act applications depend zation. The of the law must not any public the uncontrolled discretion of official delegation or else there will be an unconstitutional power prohibited by Article 4, Section 1 of the Arkansas Constitution. The Arkansas Court has con- provision prohibit Legis- strued that constitutional delegating any public power lature from to select those official the

against apply. whom state laws shall To proscription against avoid the unconstitutional discrimi- apply persons nation the law must to all within a named equally exception. class and without favor It must complete provisions so all of its terms and when it legislative government, leaves the nothing branch of the judgment any appointee is left to the or dele- gate Legislature. Davis, 153; State v. 178 Ark. p. 11 Am. Jur. Sec. 215, 924. opinion

“For the above it reasons, is the of this Court that Act 12No. is unconstitutional and invalid

??

“ACTS NO. AND 16 together “Acts 14 and 16 will be considered because they subjects deal with almost so inter-related that it is impossible to consider one without the other. subject

“The ‘Champerty’, of these two Acts are ‘Barratry’. ‘Maintenance’ and purports “Act No. 14 to define the crime of bar- ratry separate and includes nine sections of definitions. vague,

“Sub-section B of Section 1 is so indefinite, yet uncertain, inclusive, that it would make difficult impossible society life in relation to access judiciary particularly true under a constitu- Attorney argues any in this Court that issue about because—says Attorney 12No. is moot Act General—-Act 12No. entirely superseded language “was 225 of 1959.” No. We find no expressly impliedly repeals said Act 225 which 12; No. or Act No. argument repeal point we consider such about so to be beside the at issue here. may to ‘tend government. Acts of form tional descrip- beg peace’ as to numerous are so breach the guarantees government all of us form of tion. Our judiciary, right access to and uninhibited of free implies fearful certainly not be so that we must and this every day that this access acts and common of judiciary actually This defi- of fear. fettered because thought impair action freedom of nition tends to judiciary. relationship access to the with of proposed C of Section in Sub-section “The definition proposing man single a fellow that act of makes pro- litigate, regardless merits of the intention or the posed regardless good litigation, intentions or punishable society proposer, act in the by heavy a felonious this imprisonment. It well established fine today union cannot a labor our law in this State that through own but must do so name, sue or be sued representations individuals or individuals appear group. if that within It would to this Court provision conceivably be held that this valid, could this unincorpo- effectively and other would bar labor unions judiciary; as and, rated associations from access to previously cannot be under our stated, Constitution done. equally as D as invalid of Section is

“Sub-section for the same aforesaid, are B and C sub-sections would observe and in addition the Court reasons, practice extremely hazardous law would be an penalties profession pursue im- in face of the serious posed by the Act. 'not I 1 do of Section F, G, H,

“Sub-sections complete complete thoughts and for make or sentences nothing. define that reason common law crimes with the 16 deals

“Act No. enlarged greatly champerty, therein as maintenance accepting receiving, assistance giving, to include proceed- prosecute any commence or inducements agency. an administrative ing before 756 again we call attention to the situation

“Once unincorporated in- find themselves associations would many highly and hibited, well well intentioned as as people, people assisting indigent motivated ing ing in defend- charges prosecut- against criminal or in themselves defending goes con- or civil actions. This definition siderably beyond, only proprietary but constitutional not clearly to the 14th Amendment limitations, violates and Article Constitution the United States 8 of Section the Arkansas Constitution. seemingly 3 and 4 of Act 16 de-

“Sections would impair power stroy certainly right make to attorney contracts between and client. provides penalties filing-

“Section 5 of Act required in 4; false affidavits as among Sections 3 and imposes things other a heavier and more severe penalty upon attorneys non-resident than it does attorneys. resident For this reason the is discrim- inatory equal protection of both violates clause the Constitution Arkansas and the United States. require person appear “Section 6 would before jury require grand testimony given and would to be regardless testimony of whether such or evidence would tend to incriminate him. would This seem to this Court Fifth violate the Amendment to the United States clearly and would Constitution also violate Article Section of the Arkansas Constitution. purports exempt

“Paragraph types certain provisions litigation from the of Act 16; and opinion of this Court constitutes an unlawful classi- fication within a without class reasonable relation and discriminatory. therefore opinion

“It is the of this both Court'that Act No. 14 and Act No. 16 are unconstitutional and invalid.” quoted opinion have

We of the learned Chan- study gave the care cellor to show he issues. accept reject There no need for us the reason- ing of the learned Chancellor, because our Acts Nos. Virginia; borrowed from State 12,14, 16 were along State, with of that and the Courts destroyed finally have States, of the United Special validity the Session of Gen- of Acts. The these adopted Chapters, Assembly Virginia five in 1956 of eral language our Acts Nos. of which borrowed the from we Association of National 12, and 16. In the case 14, People Y. v. Robert But- Colored the Advancement of Virginia, Attorney 9 ed. 371 L. ton, 415, U.S. General of in the Ma- Brennan, 328, 2d 83 Ct. Mr. Justice 405, S. City Opinion, jority the that the Court of stated Circuit Chapters 35 un- 32, and 31, of held most of Richmond Appeals Supreme and that the Court of constitutional; Virgina, Harrison, E. 2d held only 55, in NAACP v. 116 S. of Chapter there left 36 unconstitutional. So was Supreme Chapter barratry maintenance. The 33 on in case held the said Button Court of the United States Chapter Virginia unconstitutional; 33 to be the opinion concurring Mr. case, in the Button Justice his Douglas being Virginia our Act as modeled from the lists Supreme think the Court of the United States Act. We swept has from un- the Button case foundations here so we hold Acts Nos. involved; 12, 14, der the Acts to be unconstitutional. 16 Chancery No. Act III. Act 13. The Court held this that constitutional; No. to be but we hold the Act is authority under of decision unconstitutional Supreme United Court of the States in v. Bates City Rock, U.S. L. ed. 2d Little 80 S. provides Attorney No. 13 that if 412. The Act Ct. should have reason to believe that of Arkansas General any organization attempting to defraud the was State Attorney might taxes, the of its of Arkansas parte any Chancery procure order ex Court correspondence, files, all records, have access organization. of said and other data caption Act, we consider ses- When adopted, and the it was circumstances that at sion calling we session, that are convinced led to the Supreme of the United States would hold required that the Act was aimed at the NAACP compulsory pro disclosure of information which was of City scribed the decision Court of the supra. Rock, United States Bates v. Little whole tenor of the decision the case of v. NAACP Button leads us to the inevitable conclusion promptly would No. 13 declared unconstitutional City supra, in line with Rock, Bates v. Little supra. Button, NAACP v. It follows that all four of the Acts here involved hereby are declared' to be unconstitutional.

Holt, J., disqualified and not participating. Boyd Special J. and J., dissent. Johnson, Tackett, (dissenting). Special 12Act of the Boyd J. Tackett, Sixty-First Extraordinary of the Second Session by Assembly as Amended Arkansas, of of the State pro- Legislature, 80-1910-14, Ark. the Stat. 225 of county County Judge in substance vides operating- any organization who believes state, designed county engaged to hinder, is activities powers and of the with the duties interfere harass operate of Arkansas to control and its schools State given public hearing, after notice shall afford a is organization, as to to make a determination involved organization operating- the involved whether such within county engaged activities; aforementioned is such County Judge, after that, a determination hearing organization engaged such notice that the powers duties of activities detrimental operate public schools, its State of control and Arkansas to organization the office of he shall to file with order the days period County after Clerk, within a seven (1) following: name official order made, such (2) organization of- members, list meeting- headquarters place or usual fice, business, agents, place organization, (3) ser- officers, of the representatives organization, employees, of the vants, (4) organization, (5) a statement organization disclosing subordinate to whether the is parent parent organization, name the and, so, if the of provides legislation organization. the further that required organization information; furnish the and shall public filed information. information thus becomes pro- penalty provided legislative for violation of A visions. Extraordinary of Í3 Session

Act of Second Assembly Sixty-first Arkansas, of the State of General provides, if the substance, that 84-4012-15, Arl>. Stat. Attorney have the State of Arkansas should General of any organization within the State that reason to believe attempted evade, has defrauded evaded, has of of it under of the State Arkansas taxes due the laws upon procurement may, Arkansas, of he of State parte any Chancery Court, of from order authorization ex copies organi- and obtain of the records of the scrutinize any organization zation and obtain revealing evidence from the of the of evasion state taxes violation legislation of the laws of the State of Arkansas. The re- quires organization the involved to make to the available Attorney pro- penalty records; involved procured violation; and vided evidence becomes admissible all courts.

Concerning Act 12, as our amended, Supreme during United Court, States the month of Oc- tober, 1928, York, ex Zimmerman, State New rel v. of legislation et al. 278 U. S. held New York similar Statute—supposedly be The New York Constitutional. Klan—-provided organiza- at Klux directed the Ku that required prerequisite an oath tions of member- ship, other than Labor Orders, Unions Benevolent Secretary with file State of New York sworn copy of Constitution, rules, roster of offi- members, etc. cers,

Our United Court, States York v. Zimmerman case, New held that the contention deprived being liberty membership organi- in the liberty, per- zation was without merit; other rights, yield rightful police sonal must exertion of power; might prescribe apply that the state organizations any regulation reasonable calculated to purposes define the and activities within limits con- rights public with the sistent others and the welfare; that the state and entitled was to be informed of the nature organization, membership, required whom its were conducted; activities operate information would as an effective or substantial private right deterrent violations organization tempted might which the if such disclos- required; requirement were not ure was not oppressive, arbitrary likely but reasonable and be to power require effect; real to the dis- prevent authority mem- individual included to closures comply from at- failed to who had of an bers association membership retaining tending meetings with knowl- Supreme edge Court, default. United States of its Our process clause” that the “due in that concluded instance, not violated. of our was Constitution day 1958, our United June, on the 30th However, complete Supreme turned about-face, did a Court States a flip-flop, Alabama, 357 v. the case of NAACP and, requirement for disclosure of ruled that a U. S. membership was Unconstitutional. NAACP Supreme purported to Our 1958United States Court by distinguish York the Alabama from the New case case taking judicial knowledge Klux Klan en- that the Ku was gaged that, but violence, unlawful intimidation wrong. effect, the NAACP could do no Supreme

Our United often stated States Court has power that where be individual freedom and state ends gins in delicate and that a decision, restraint justified public dividual inter liberties be clear must Company, est, U. v. S. Carolene Production 304 U. S. certainly and Thomas v. Collins, U. S. 516. There is clear interest in our and in our taxation. schools permits every Our United States individ Court except guaranteed by ual freedom, our Constitution, regulated subjected those afforded NAACP, to be discipline to and control. Yes, our United States Su preme permits labor commerce, chambers charity organizations, unions, benevolent orders, and all organizations, other such even our churches, sub jected regulations, discipline—all except control and the NAACP. originally Klux

We know that the Ku Klan was provide unity strength with which to com- formulated to carpet bag government bat rule and return our people. Ku Klux Klan so, local Even was misused organization and the true was abused people, resulting in breach disorder, the detriment of the peace, unlawful violence and other activities. people provide unity strength with such Business peo- organizations laboring commerce; as chambers of ple unity strength through and the union; achieve labor Negro people through unity strength the have achieved organization Negro NAACP the formulated to better purposes race. chambers so, Even often the true of the charity of commerce, orders, labor benevolent unions, organizations, are the NAACP churches, and even in- abused. We know that the NAACP has some engaged up stirring creating stances resent- strife, ment hatred, for the has violated laws supplying Supreme fod- the with United States Court litigation. sympathizer, der for I am a Klan not Ku Klux disapprove purposes original and I do not time rights allowing the but I NAACP, do not believe in organi- rights of the NAACP to exceed the of other such opinion zations. I am of the individ- considered that the subjected ual freedom of NAACP members should be regulations the same rules and as of other members worthy organizations, including church members. majority of this court recites statements of judge scope trial that Act 12 is too broad in meet requirements; precludes Constitutional the Act organizations questioning power duty from or state’s operation public in the of its schools; and that the Act requires identity organization of members of the who question power duty care to or of the state in the respect. present aforementioned I shall admit that our Supreme United States Court no will, doubt, declare legislation purports regulate Unconstitutional or restrict the organi- NAACP and its members as other regulated zations and their members are and restricted. Supreme Prior to assuming the United States Court guardian NAACP—right role of wrong—Act for the or 12 was Constitutional; and I don’t believe that our State Supreme merely Court should throw in the towel because Supreme we know that the United States will de- legislation clare the Unconstitutional. verbiage

I can find precluding any no in Act 12 organization questioning power duty the state’s identity operation schools. For questioning organizations the state’s members ap- consistently power duty known was to be made proved by the United States the courts until favoring obligation the recently of the Court assumed any privileges greater than with and its members NAACP verbiage county. organization I can find no in other this right any denying citizen 12, amended, Act as discour- courts, to the to untrammeled access free and by right, the trial aging concluded as the exercise judge. of the trial the conclusion I can not reconcile legislative judge amended, Act as constitutes 12, contrary authority county judges, delegation to to the Our Arkansas Constitution. 4, 1, Article legislature Section many delegated investigative and has times Supreme judicial judges, authority county to and our legislation It will ruled such Constitutional. Court has judge instance ruled Act noted that the trial ruling amended, 13 to while Act 12, be Constitutional as though delegates be Unconstitutional, even Act 13 sim- investigative, judicial authority ilar enforcement Attorney delegates General as Act as 12, amended, County Judge. County Judge, by to the virtue of provisions of Act authorized to 12, amended, as is judicial determination, make a after and hear- notice ing, organization engaged as to whether activi- powers ties detrimental the state of duties of operate control Arkansas to schools. The by provisions Attorney General, virtue of the Act 13, of and, investigate any organization, is authorized to procurement parte any Chancery an ex order from organi- Court, scrutinize records activities organization evading determine whether zation, violating state taxes or evidence obtained available laws of the and make state, courts. legislation delegates authority, Most enforcement respectfully justify way and I state that there is no holding while, time, Act Constitutional at the same holding 12, Act as amended, Unconstitutional. Either except declared would be Constitutional for the recent Supreme champion- role of the United States Court in ing provisions 12, amended, the NAACP. The of Act as trial do not afford indicated discrimination as applies organizations judge—the legislation to all exception. persons know all All of us without favor or provisions from the that were the NAACP excluded as and Act the United States Su- amended, preme difficulty legis- finding Court would find no just any legis- lation Constitutional. There must not be regulate if lation which will in the the NAACP wise present United can be ex- States pected to find same Constitutional. Extraordinary

Act 14 of the Second Session of the Sixty-first Assembly Arkansas, of the State of prohibits any person Ark. Stat. no 41-703-6, who has engaging exciting stirring- direct interest from in, up quarrels and suits between in- individuals, between an any dividual and the state, or between an individual legal entity; prohibits any person committing a breach of peace purpose creating- litigation; prohibits for the proposing- person prosecute that another a institute and against person, any suit another state, nation, or legal entity; prohibits encouraging, aiding other and abet- ting peace pur- litigation commission of breach of the poses; prohibits financing litigation in finan- which the prohibits prose- cier has no interest; and the institution, litigation by person or cution, maintenance of a has who sought. no direct or substantial interest the relief Extraordinary Act 16 of the Second Session of the Sixty-first Assembly of the State of Arkansas, prohibits Ark. Stat. 41-707-13, solicitation or donation of prohibits receiving accepting finances, and or financial encouraging assistance for the or maintain- ing litigation. prohibit regular employ- The Act does not attorney upon ment of an contingent a fixed fee or basis. provides party-litigant, The Act that a the court or agency proceeding pending, require in which may is party-litigant a to execute and file with the court an affi- conspired davit that he has not received or to receive prosecute assistance anas inducement to or maintain the provides party-litigant, action. The Act also that a pending, proceeding agency in which or court, attorney file require may to execute an involved not that he is the effect an affidavit with the court receiving for his services receive a fee and will not The act client. than his other an action from source penalties provides of the Act. for violation exempt person provides no shall Act 16 producing attending, testifying, before evidence or any Jury, any based or in cause court, before Grand alleged but growing Act; violation out of subjected prosecuted person not be that such shall any penalty concerning which he is matter about required testify, produce or the like. evidence, exempts parties contingent attorneys fee who are wherein contracts with their the involved clients, litigation property, common matters, concerns title to tax prosecutions, carrier criminal rates, utilities, attorney participating through wherein the involved prohibits pun- legal aid The Act finances societies. pre- champerty, barratry, and maintenance, ishes up litigation by stirring cludes the solicitation of or parties subject who are not real those interest to the litigation. matter of the

Barratry, champerty maintenance, and have been prohibited by many common law and state statutes for years; barratry, and the evils of and cham- maintenance, perty years, have been condemned our courts over the by and also condemned Canons Rules Professional governing attorneys, litigants, litigation. Ethics and justification excluding There no for NAACP, attorneys litigants barratry, from maintenance, champerty. practice

Permission for a won- law, instance, privilege, power. affording great range derful a A person practice privileged palm law within holds his destiny lives, the property and an untold liberties, amount of Attorney closely

of others. activities should be Supreme regulated. The United States Court does not question concerning any than such statements other NAACP. Button,

In the recent v. 371 S. case of NAACP U. plaintiffs Virginia Public suits seven in the School they plain testified that were their unaware of status as ignorant purpose tiffs, and of the nature and of the suits they parties. They know to which were did not even attorneys attorneys; their and, course, the NAACP open though did not know them. Even the NAACP was ly practicing barratry, champerty with maintenance, and people, Supreme ignorant con the United States Court doned such actions. attorneys taught,

All firm have been and most are belieyers, that his controlled or services should not be exploited by any personal agency, corporate, which lawyer; interferes or intervenes between client and lawyer’s qualifications responsibilities a are individ- lawyer ual a ; that should all avoid relations direct performance by the intermediary; of his duties the interest of such relationship

that his client should his personal responsibility directly and that his should be through litigation peddler to his client—not or canvas- legal ser. Solicitation of business NAACP vio- Chapter lates 33 of Canons Rules of Professional Ethics. permit indulge barratry, In order to the NAACP to champerty—a privilege maintenance, not afforded organization-—-the other United States Virginia legislation pro- in the Button case ruled practice hibiting such as Unconstitutional. legislation No this does not curtail access to our justifiable prac- It courts. affords restrictions to the evil barratry, champerty-—-nothing tice of maintenance, just more. The NAACP does not desire such restric- tions. person

Precluding without true interest en- up stirring litigation, gaging precluding commission peace creating of breach precluding litigation, engaging- a financier from litigation in which he has no not interest, does impair thought relating freedom of and action to access having judiciary. wrong I can see no in the court litigants. benefit of tbe true In the court is entitled fact, parties litigation. to know the true pre- why legislation There no reason our should unincorporated organizations, clude unions, labor such as litigation participating NAACP, others, thereby organizations, the names of the involved knowledge party litigants. afford the courts of the true attorneys strenuously regulated All should be attorneys aforementioned, reasons be re- and for quired professional to abide rules and ethics, court regulations, operation. should not constitute a hazardous Surely, profession members of the medical not should rampant they regulation be allowed to run without while engaged peo- destiny are in activities that control the ple’s they regulated lives; and, for them are, to be so as place profession. does not them in a The hazardous legislation preclude peo- indigent not does assistance to ple representation litigation. in need of In fact, legislation permits legal aid liti- societies to assist such gants. legislation impair power right

The does not employ attorney. prohibits legislation merely to people financing litigation.

without an interest from legislation requires organization’s While the officers testify concerning and members to the records and activi- organization, testimony ties of the incrimi- such can not simple legis- nate the witnesses for the reason that the provides person prosecuted lation that no such shall subjected any penalty concerning any matter about required testify. which he

Actually, the evidence introduced in the trial court support legis- of contentions of the NAACP guaranties lation will violate the Constitutional purely upon specu- NAACP and its members is based lation and been enforced; and, therefore, no one conjecture. legislation The involved has not whether

knows guaran- there would be violations of the Constitutional might so, ties of NAACP. Even we well face as ignore possibility head-on and no issue that there is justiciable issue, because we realize the United Supreme judicial knowledge, will take re-

States Court legislation gardless that the is Unconsti- evidence, tutional. majority that be- states, effect, of this Court Supreme Virginia has acceded to the

cause the Court Supreme of the Court and declared wishes United States legislation Unconstitutional, of the involved some majority of of the con- because the this court is that, opinion legislation will be de- sidered that the involved Supreme by clared Unconstitutional the United States Supreme may well concede. the Arkansas Court as Court, reasoning logical advising This line of is as as the free- people may join loving they well dom Cuba as Party going rule because Castro is Communist anyway. possibility that our There is United States Supreme judicial will in time return to Court sound activities, render based law and evidence, decisions legislation by judicial desist from and treat the ediction, organizations all That NAACP as other such are treated. possible join voluntarily will not be if we the United Supreme present during Court recklessness. States thereby, I do not believe that we should surrender and, present disregard accelerate the reckless our United Supreme States Court for our fundamental democratic principles. participation being my an

This first as Justice of appellate sincerely regret join I I can not court, opinion ap- majority fully in the I of this court. While preciate respectfully position majority I must court, opinion. majority

dissent to No doubt majority by they is influenced the fact that have been slapped in the face recent decisions the United Supreme States Court such extent as to cause them yield Supreme to the United States Court without just philosophy. further I I ado. cannot condone that realize that the will United States declare legislation I Unconstitutional, involved but do not believe that we should assist.

Therefore, respectfully I dissent. I do (dissenting). Associate Justice Johnson, Jim I On the merits opinion. with the majority not agree in the dissent- conclusions reached concur with the would Boyd However, my of Mr. ing opinion Justice Tackett. there abso- merits since to reach the view it was error to invoke the so as presented no issue lutely justiciable Ann. 34-2501 Stat. 274 of applicability [Ark. § known the Arkansas seg.] et as (Repl. 1962) popularly not- I reach this conclusion Act. Declaratory Judgment Federal three-Judge of the withstanding magnanimity District of the Eastern Division of Court’s [Western of Octo- opinion to this court deference Arkansas] 8, ber 1959. filed Pulaski 5, appellees suit February

On cer- Attorney Chancery against for a declaratory tain officials County praying Pulaski 14 and 16 of the Second 12, 13, Acts judgment declaring of the Gen- Extra-ordinary Sixty-first (1958) Session Ann. eral as Ark. Stat. [codified, respectively, Assembly 84-4012 80-1910, 41-703, 41-707 (Repl. 1960), (Supp. §§ §§ appel- and further that 1961)] unconstitutional praying enforce the be statutes. enjoined attempting lants on presented Chancellor, After trial of the issues a Memorandum 15, 1961, Opinion .holding rendered May and 16 unconstitutional and Act 13 valid. This 12,14 Acts are the result of that appeal appellees’ cross-appeal ruling. appellants

For reversal strenuously urge trial court erred a It by declaratory judgment. granting a is contended that for proceedings declaratory judg are where there a ment, appropriate only justiciable determinable rule con controversy. Our relative to the ease Andres v. First tention forth in the recent is set Arkansas Finance Development Ark. Corp., 230 2d follows: S. W. as

‘‘ act . . . was not intended declaratory judgment Our presented allow to be any question person: In ‘Declara- matters must be Anderson on justiciable. tory Judgments’ general 2d Ed. § 187,the rule is stated as declaratory judgments: liqui- declaratory

“Since relief tois interpretations might date uncertainties and result litigation may pur- in future it be maintained when these poses may requisite precedent be subserved. The facts generally or conditions, which the courts hold must exist declaratory may may order relief be be obtained (1) justici- summarized as follows: a There must exist controversy; say, controversy able that is to in which right against a claim of is asserted who an inter- one has contesting (2) controversy inest it; must between be persons (3) party whose adverse; interests are seek- ing declaratory legal relief must have a interest controversy; legally protectable in other words, inter- (4) controversy est; and the issue involved in the must ’’ ripe judicial determination. authority page

In the same in 221 at 488 the rule is § stated: Declaratory Judgment applicable

“The Statute is only present controversy, where there actual is and all persons parties, only justi- interested are made where presented. ciable are issues It does not undertake to legal upon decide the effect of laws a state of facts which contingent declaratory judg- future, is A uncertain. granted danger ment will not be unless the or dilemma of plaintiff present, contingent happening not on the hypothetical prejudice posi- events; future to his genuine merely possible, tion must be actual and and not speculative, contingent, or remote.” adopted logical gener- limitation

This our court prevails ally Declaratory Judg- elsewhere. See 26 O. J. S., seq. 24 § ments et appellees

In the face of this rule the burden was on prove justiciable to that there awas issue and hence a fit subject declaratory judgment for relief. See Am. Jur. Declaratory Judgments, §§ Trial 69-70, Evidence and p. of Fact. Issues See also 10 R. O. L., 897. attempt undisputed that made

It is no has been complained appellees yet apply against the acts here appellees mere Acts 12, 13, contend that the fact that adversely and 16 are on the books them have affected memberships in that there had been a and contri- loss of appellees, principal through butions. The witness for prove appellees’ sought whom it assertions, was A. Orleans, Louisiana, Clarence Laws of New Field Sec- retary for the National Association for the Advancement People. of Colored Laws that the testified to effect memberships Arkansas in his association had been declin- ing since 1956. mem- However, the record shows that the bership year increased somewhat in the 1958, the same years passed. In fact, those acts were the entire context testimony, testimony appellees’ of Laws’ as well as the upon they prove justi- other whom witnesses, relied to beyond question entirely ciable issue, shows it is speculative drop membership as what caused the alleged loss of contributions. Therefore, impossible us, the record before it is for to conclude me appellees proving that justiciable sustained the burden of that a majority opinion

issue existed. The con- trary opens effectively gate every special interest group in Arkansas to demand the entire time of passing imagination, courts of this state in all statutes might, special in their wildest affect their clearly contrary This, course, interest. to the intent Declaratory Judgment and such abuse as stamp exists in at the case bar should not bear approval of this court.

For the reason I stated, would reverse and dismiss. Benefit & Mutual Health Accident Assn. v. Rowell. 5-3013 2d 368 S. W.

Opinion delivered June 1963.

Case Details

Case Name: Bennett v. N.A.A.C.P.

Court Name: Supreme Court of Arkansas

Date Published: Jun 3, 1963

Citation: 370 S.W.2d 79

Docket Number: 5-2575

Court Abbreviation: Ark.