ALLEE v. MEDRANO

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Argument of Larry F. York

Chief Justice Warren E. Burger: We’ll here arguments next in 72-1125 Allee against Medrano.

Mr. York you may proceed whenever you’re ready.

Mr. Larry F. York: Mr. Chief Justice and may it please the Court.

I would like to briefly summarize the facts of this case and describe to the Court how the case got here in a very brief fashion.

And then to discuss the constitutionality of the statute to which you discussed and then to discuss the intervention question of propriety or federal intervention -- federal court intervention in the case.

In about June of 1966, intensive efforts begin by the AFL-CIO in Texas to organize and unionize for the farmworkers in the Rio Grande Valley of Southern Texas.

Those efforts were marked by picketing in demonstrations which went on over a period about 13 months In June or so 1966 up until approximately June 1967.

During that period, the Texas Rangers, five of whom were defendants in this case and who are the only defendants who have appealed, were called in first, I believe the record will show in about November in 1966 for the purpose apparently then of serving ten warrants on people who had already been charged with committing the violation of having a secondary strike by the local authorities.

The ranger came in to serve those ten warrants.

The rangers came in to the area again in May of 1967 at the request of local officers.

And from that time until the picketing ended in June of 1967, about roughly six weeks, a two-month period.

The rangers made several arrest in this area obstructing which covered the number of counties.

It covered up a large number of structures and picketers.

The arrest made by the defendant rangers during this approximately six week or perhaps shorter period in that, total amount 45 including 28 for mass picketing under Texas statute, 14 for unlawful assembly and one for no driver’s license, one for threatening the life of a ranger and one for brandishing a weapon on the public part.

Other arrest were major --

Unknown Speaker: Did the record show what kind of a weapon?

Mr. Larry F. York: I believe it’s described as a rifle by Mr. Dimas.

He is one of the plaintiffs in the case.

A total of -- if I read the record correctly about 70 arrests of the individual were made over this 13-month period.

By both the rangers and the local law enforcement officials in this several county area in which the mass operation of organization was going on.

Unknown Speaker: A total of how many arrests?

Mr. Larry F. York: About 70, Your Honor.

Its 70 individuals.

Unknown Speaker: Arrest -- they made more arrest in that over the 13 months period I’m sure of various people but you mean 70 connected with this labor organizing activity?

Mr. Larry F. York: I believe that as stated in the appellees’ brief.

The total that they come up with is about 60 arrest made in all counties during this entire dispute.

Unknown Speaker: You mean of anybody for anything?

Mr. Larry F. York: That’s my understanding Your Honor because I believe that’s what the record show.

Unknown Speaker: So these, many of these arrests weren’t at all connected with the activity involved in this case?

Mr. Larry F. York: sWell, they were about all this 60 or 70 of sure arrest, they were all with one or two exceptions, the driver’s license and the brandishing of weapon that is all involved the statute which is before this Court and which before the three-judge court.

Unknown Speaker: And were arrest of people, were they not?

Or if I get it all wrong involved in this union organizing activity?

Mr. Larry F. York: Yes sir, that’s correct.

Unknown Speaker: You’re not talking about the total arrest in that county --

Mr. Larry F. York: Oh!

I’m sorry.

Unknown Speaker: That’s my question.

Mr. Larry F. York: No, we’re not saying that that’s all of the arrest that they were ever during that county, during this --

Unknown Speaker: So all of this 60 to 70 arrests were connected with what’s that issue in this case?

Mr. Larry F. York: Yes.

Unknown Speaker: Mr. York?

Mr. Larry F. York: Yes, sir.

Unknown Speaker: I from my own glanced at the appendix developed the idea that is to Article 482, the section on abusive language that the District Court invalidated, none of the individual plaintiffs in this case have been prosecuted under that particular section or threaten with prosecution.

Am I wrong?

Mr. Larry F. York: I believe that they were arrest under that section.

Unknown Speaker: But where they of the individual plaintiffs in this case?

Mr. Larry F. York: Your Honor, I’m not sure that I can answer that question without referring to the record.

Unknown Speaker: Don’t bother.

Mr. Larry F. York: Alright.

Unknown Speaker: I might say I share the same inquiry that Justice Rehnquist has expressed.

Mr. Larry F. York: I will hope to touch that in rebuttal, if I may, Your Honor.

The arrest we talked about ended in a period in about June of 1961.

This period of 13 months or so was marked by actual vandalism as the record show directed toward farm owners in the sense of finding sugar in gas tanks, punctured tractor tires, stolen generator and that kind of thing.

The three-judge court found that the law for including the ranger defendants had acted unlawful towards the strikers by harassing them and intimidating them for the purpose of ending the strike.

In June of 1967, state civil injunctive proceeding was filed in the State District Court of Starr County; one of the counties involved in a case filed La Casita Farms versus AFL-CIO Organizing Committee.

An injunction relating to La Casita Farm was rendered by the Court in July of 1967, enjoining all picketing against La Casita, which was one of the major employee in the area.

On the basis that the picketing were shown to be so intertwine with violence and disruption that it passed any legitimate form of communications so that all picketers was enjoined of La Casita Farm.

The Union appealed the injunction to the Court of Civil Appeal to Texas and Trial Court was affirmed in that reporting to 439 S. W. 2d 398.

And that of course is not involved in this case, that is another injunction and that is what we say that the record shows ended the strike in the area.

It was a fact that there was a state injunction in June of 1967.

Then in July of 1967 thereby plaintiff filed this action with the result that we know of in the three-judge court were here today.

I’d like --

Unknown Speaker: May I ask you Mr. York?

Mr. Larry F. York: Yes, sir.

Unknown Speaker: At that time, do i gather the state injunction proceeding was complete -- completed, no appeal was taken from the injunction?

Mr. Larry F. York: It was appealed to the Texas Court of Civil Appeals which I --

Unknown Speaker: I’m thinking at as of the time this action was brought.

Mr. Larry F. York: Your Honor, I can’t tell you precisely the injunction was entered on July 11, 1967.

This case was filed, I don’t have the precise date but it was filed I believe in July of 1967.

Ordinarily that would mean that the appeal could not have been completed by that time.

Unknown Speaker: Well do we have the date when the affirmance of the appellate court was presented?

Mr. Larry F. York: It was in 1968 and --

Unknown Speaker: Well that’s it then.

Mr. Larry F. York: I’m sorry --

Unknown Speaker: The state injunctive proceeding then must do a contending when this action was filed.

Mr. Larry F. York: Yes sir, it became the Court’s opinion with December 31, 1968 and there was --

Unknown Speaker: And let me ask again, it is still in effect?

Mr. Larry F. York: Yes, sir.

Unknown Speaker: Is that the highest court you could appeal to, the one that --

Mr. Larry F. York: No, sir.

The Texas Court Civil Appeals desire an immediate court.

The record does not reflect there was a reattempt made to appeal from that court by the Union to our Texas Supreme Court.

Unknown Speaker: And that’s the discretion that you appeal, is it?

Mr. Larry F. York: Yes, sir.

It may or may not be taken but the record will reflect order an attempt that has been made.

Section 5154d of our statute involving mass picketing.

That’s what I would like to address myself to you this time.

Texas is one of -- in support our research has been able to develop one of only three states all over -- perhaps all who have adopted a specific statute defining what mass picketing is.

However, the equity courts of this land have recognized for a long time that the concept of picketing while that it involves speech, also involves conduct and that the conduct side of it may be regulated in the absence of statute so that the concept of mass picketing, picketing which transcends the speech elements of communication and moves into the conduct area may be by the courts and the variety of cases in many jurisdiction cited in our brief in New York and New Jersey and Ohio with a number of pickets has been specific and limited by the equity court in an injunctive process.

Unknown Speaker: That would be in the circumstances of a particular case?

Mr. Larry F. York: Yes, sir.

Unknown Speaker: And then after a showing of violence, would it not -- or threatened violence growing out on the circumstance of the particular case shown to a court of equity?

Mr. Larry F. York: Yes although we would say Your Honor that it would not be limited to violence.

It might be and has been shown in it’s situation for that many showing of simple blockage of the reasonable right to ingress and egress.

Or other forms of conduct, shorter violence which are thought to be violative of a valid state part.

Unknown Speaker: How many other states did you say have a statute such as this that makes it applicable to every kind of situation involving on merit controversy?

Mr. Larry F. York: Your Honor, but if our research is correct, in the State of Nebraska had a statute which is almost identical to the Texas statute to the point of talking in terms of 50 feet and it’s almost the twin of our Texas statute.

State of South Dakota had a different sort of statute which talks in terms of the number of picketers being limited to 5% of the first 100 strikers and 1% thereafter.

I believe it’s the South Dakota scheme.

The cases from other jurisdictions are numerous on the point of the injunctive relief on a case by case basis.

Unknown Speaker: Right.

Mr. Larry F. York: We’re also aware of this court’s ruling in the Vogt case in 1957 which establishes the principle that picketing even peaceful picketing.

Even clearly peaceful picketing may be regulated by the state recognizing that a part of picketing is conduct.

I the picketing as in the Vogt case has added primary purpose, the violation of a particular state policy which is a valid state policy.

So the background for regulation of picketing is found both in the common law notions and the various equity court notions of injunction and in this courts ruling in Vogt case and what Texas has done is simply to adopt a statutory scheme to in fact codify the doctrines of independent expressed in the other Courts of what mass picketing amounts to.

The Texas statute is limited to the labor context.

We don’t contend and the statute can’t be read, we submit just to apply any other kind of picketing.

Indeed, the AFL-CIO in there amicus brief at page 2 concedes that was aimed at labor unions.

The preamble to the statute states clearly that when the statute was passed in 1949, it was stated by the legislature that it was a matter of public knowledge that picketing is exercised by labor organizations.

It’s not used only as a means of expressions of ideas to the public generally but likewise as a means of coercion to the mere present to the picket lines, etcetera.

This appears in the preamble of the statute.

Statute by it’s time is limited to picketing by organizations.

The statute has never been applied otherwise in Texas except in the labor picketing context.

It’s located in the labor section of our statute and applies to nothing else.

The court below, the three-judge court stated that one need only look at the Davis versus Francois case out of the Fifth Circuit to determine that our statute was unconstitutional.

But in the Davis case, the Louisiana ordinance that was attacked said that you cannot have more than two pickets, period, the end.

Unknown Speaker: What’s this Mr. York that had -- how was Section 1 apply, two pickets that is in relation of picketing offenses?

Mr. Larry F. York: Yes.

Unknown Speaker: Apparently, you have -- the pickets have to be at least 50 feet away from the office?

Mr. Larry F. York: Well they have -- there can’t be no more than twp pickets within 50 feet.

Unknown Speaker: That’s what I -- does that mean and the pickets have to be 50 feet apart, is that it?

Mr. Larry F. York: There can be two pickets if you can visualize those, there could be two pickets at that door but there could be no more than two within 50 feet of the door.

Unknown Speaker: Nor, may they be within 50 feet of one another, is that right?

Mr. Larry F. York: Yes sir.

That’s correct.

Unknown Speaker: The two compete within the two pickets from each other?

Mr. Larry F. York: Well the two -- right.

Two pickets may be (Voice Overlap).

Unknown Speaker: The two can be right at the entrance?

Two can be right at the entrance, not more than two?

Mr. Larry F. York: And the next two – Yes, sir.

Unknown Speaker: The next to have to be at least 50 feet away?

That’s what I was trying to get at.

It’s not then that there may be only two pickets 50 feet apart.

Mr. Larry F. York: Yes, sir.

Unknown Speaker: It’s not that that.

They may be walking pairs.

But the pairs have to be 50 feet apart.

Is that it?

Mr. Larry F. York: Yes, sir.

That’s correct.

You can envision a city block.

We assume it to be 300 feet on the side 1200-foot parameter.

It depends somewhat on where the doors are located but the number of pickets you much around that block under our statute would be somewhere between 40 and 50 and between 40 and 48.

The object as we perceive it, a picketing is to communicate and it’s impossible for us to see under the cases and under our statute how there is any infringement on the right to communicate under our statute.

There are no evidence submitted.

It’s not even suggested in the brief or in the record by the appellees that their right to communicate their dispute in the Rio Grande Valley of Texas was in any fashion inhibited by the statute.

Indeed, everybody in the valley knew the dispute and in the normal labor context, the simple -- one simple saying and it’s enough to advice the public or to advice other unions etcetera that there is labor dispute, Your Honor.

After being further conduct about harassing type, the fairer brief which is one of the amicus brief filed indicates that their particular plant can have as many as a hundred pickets around it and follow within the coverage of the Texas statute and you can conceive a plant that might have hundred of pickets around them and still be entirely legal within the meaning of the Texas statute.

Unknown Speaker: (Inaudible) before the (Inaudible) they have two pickets?

Mr. Larry F. York: I don’t think Your Honor that it would be limited to frontage.

If the building was 49 feet around, it might well be limited two pickets for that building.

Unknown Speaker: Or is it valid was all liability going down to street?

And this will be about 49 feet, that’s all is available.

So can only have two pickets?

Mr. Larry F. York: I think in that case that it would be limited to two pickets.

The obstruction portion of the statute as the statute has two parts.

One is to describe mass picketing in terms of the 50-feet rule.

The second part is to talk in terms of forming an obstacle to free ingress and egress from any entrance either by obstructing said free ingress and egress about person or by placing a vehicle or other obstruction there.

Our Texas code in the Geisler case which is mentioned both on the three-judge court opinion and then our brief, held that the obstruction talked about, meant only a physical obstruction not any other kind of obstruction.

It was suggested in the Geisler case for instance that holding of a particular type sign or flag might well keep people out and the court said, no that won’t get it, it has to be a physical obstruction.

If I can tell people to choose not to cross a picket line, it is just one of the accepted parallels of picketing that we are not going to enjoin that.

The Cameron versus Johnson with Mr. Justice Brennan lately approved a Mississippi statute.

We say is totally just positive of our case.

Mississippi statute talked about picketing in such a manner as to obstruct or unreasonable interfere with being ingress and egress.

It is in the subjunctive that is it is or so the Mississippi statute can be read to say that you may not obstruct pre ingress and egress.

Our statute says you may not obstruct before you ingress and egress.

The Court in Cameron stated that the time obstruct plainly required no guessing as to its meaning that we agree.

The plaintiffs or the appellees here when they submitted there final proposed, revised judgment to the court below in this case did not include the obstruction portion, the second portion of 54d in their proposed finding and relief and did not in that context asked the Court below to find the obstruction portion of 54d unconstitutional.

The three-judge court in a latter part of its opinion in finding article 784 of our Texas statutes to be constitutional and that statute says whoever shall willfully obstruct or injure our pose to be obstructed.

The Court there construed the word obstruct to mean actual prevention or a substantial interference who track them.

Unknown Speaker: Cameron against Johnson wasn’t that a very similar statute.

That was an obstruction statute, wasn’t it?

Mr. Larry F. York: Yes sir that’s correct.

And we say that when you read the Cameron statute side by side with errors and read the meaning of the word obstruct in it with our conclusion then statement of ours is all right under Cameron versus Johnson.

Unknown Speaker: Mr. York.

Mr. Larry F. York: Yes, sir.

Unknown Speaker: Did the final order of the District Court prevent the name of the defendants, the appellants here from going ahead with then pending criminal prosecutions under the statutes that were invalidated?

Mr. Larry F. York: Your Honor, I don’t believe by reading it that it did not, it maybe said because some --

Unknown Speaker: Looking at the jurisdictional statement on page 101 paragraph 15 of the final judgment last few lines over on page 101.

Did they enjoined from arresting, from imprisoning, from filing criminal charges, from threatening to arrest but would you say in effect that because it doesn’t use the word prosecuting the state officials were free to go ahead and prosecute?

Mr. Larry F. York: Well, we would not suggest that to the federal officials Your Honor and wouldn’t suggest that that be done under the time of this judgment.

As a matter of fact I don’t believe the prosecutions have been followed because of this case.

Unknown Speaker: Have you treated it as enjoining you from prosecuting as well as --

Mr. Larry F. York: As a practical matter, it’s been so treated.

Although I don’t think you can read the precise language of the judgment and find that in it.

Unknown Speaker: It would be kind of a narrow line to walk though, isn’t it?

Mr. Larry F. York: Yes sir, extremely.

I’d like to touch very briefly on the question of equal protection under our 54d statute which applies to labor organizations and does not by its term applied to other organizations.

Were where Mr. Justice Marshall’s decision to Moseley as the Courts aware there were statute in Chicago which held that they stated that had to be no demonstrations around a public school within a 150 feet of that public school except that labor disputes were not so enjoined or so restricted.

This Court found that to be a violation of equal protection clause.

We would submit Your Honors that our case differs from that and serve with important respects for one the restriction that is imposed by our statute as it intersects with First Amendment rights is a valid and legal restriction.

I thank the court even though decided mostly on equal protection grounds, seem to have on its mind some what the concept that is was difficult or shouldn’t briefly allowed to enjoin the kind of public issue picketing that was prohibited by the statute in the Chicago case, the Moseley case.

I urge as we stated before is a reasonable restriction on the rights.

The other and perhaps more important station I think is that in Moseley the Court was confronted with the situation where of the entire universe of picketing.

A small area that is labor picketing had been singled out and not regulated being the risk of the universe had been assumed to be bad and regulated by the statutes.

In our situation we have the flip part of that, we have the entire universe picketing all unregulated by our statute except the narrow portion of the labor picketing which is regulated for the reason set out in the preamble of our statute.

And we say that in that sense we have made a reasonable classification and that the equal protection statements made in the Moseley case do not apply to this case.

Additionally, in that regard we’ve mentioned to the Court that there was no suggestion made, no proof made of any arbitrariness in this statute by the plaintiffs as they tried the case.

I would if I may to reserve a few minutes for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Dixie.

Argument of Chris Dixie

Mr. Chris Dixie: Mr. Chief Justice and if the Court please.

We made it clear to the District Court and we file several briefs in which we stated that we do not intend to interdict any pending criminal prosecution.

One of our observations in this case has been so many arrests and not one case set for trial.

As far as we’re concerned under this order, these criminal cases could be tried.

Other criminal cases could be filed under the statutes, any state official other than the name defendants and those acting in consort with them and successors and office can prosecute under this statutes.

Unknown Speaker: What about enforcing the injunction under the 1967?

Mr. Chris Dixie: That injunction runs against five Texas rangers and five peace officers down there.

Unknown Speaker: Are any of them or any of them defendants in this suit?

Mr. Chris Dixie: Yes, sir.

That suit, there are defendant there.

Unknown Speaker: Well how about enforcing that in the 67 injunction?

Mr. Chris Dixie: In the 67 injunction.

What are you referring to a State Court injunction?

Unknown Speaker: Yes.

Mr. Chris Dixie: I have a little correction to give you on that counsel was not with us on the ground or in the Trial Court.

That State Court injunction was an application for temporary injunction which alleged that the picketing was illegal for many reasons and the Trial Court rendered that injunction.

The Court of Civil Appeals reversed that and said that the picketing was legal in all respects insofar as its purposes must concern.

But they said there is some circumstantial evidence of destruction of property, dropping of nails, putting gasoline in tanks and so forth and we will hold that that circumstantial evidence was sufficient to justify a temporary injunction only and we express no opinion as to what will be the situation when the case comes forward on the merits.

Unknown Speaker: Is that -- is that where the case is now?

Mr. Chris Dixie: That’s right.

Unknown Speaker: It’s never come forward as still a temporary exemption of the --

Mr. Chris Dixie: That’s right.

And it took the Texas Courts.

Unknown Speaker: And the case is still pending?

Mr. Chris Dixie: That’s right and it took the Texas Courts about three years to settle the question of a temporary injunction.

Unknown Speaker: Where the defendants there, some to plaintiffs here?

Mr. Chris Dixie: The union was a common -- was a common party, the United Farmworkers Organizing Committee.

Unknown Speaker: Mr. Dixie, in paragraph 15 of the final decree on page 101 of the jurisdictional statement, the injunction does cover imprisoning.

Would a proper construction of that be that although you could prosecute, you couldn’t imprison somebody or would that just mean imprisoning with the prior to the filing of charge?

Mr. Chris Dixie: Your Honor, a proper construction of that I believe would be that these particular officers should not arrest people and put them in jail under these particular statutes.

But it doesn’t say that the County Attorney or the District Attorney or the Attorney General can’t file charges and cause a law and to issue and arrest somebody and prosecute him all the way through.

A very limited injunction because the essence of this case is the abuse of the police power in the manipulation of this statutes by this people who there findings of fact establish what acting and active consort with the private owners to break and strike through a period of one year.

We were attempting to get relief from this wholesale arrests and mistreatments that we were subjected to and then as far as litigation is concerned we were and are prepared to defend ourselves anytime that these things are set for trial.

Unknown Speaker: Yet the District Court certainly the thrust of its opinion.

Isn’t that valid statutes were being abused in violation of your clients constitutional rights but that the statute themselves were invalid?

Mr. Chris Dixie: Yes.

Yes they held that they --

Unknown Speaker: They could have more – Furthermore, I wouldn’t think that the fact that they didn’t enjoin any pending criminal prosecutions would avoid the thrust of the Younger cases.

Mr. Chris Dixie: Well, it seems to me that the Court would have and at least declare the statutes unconstitutional when at least to expect to some of the statute, they were pending state criminal prosecutions?

Yes.

Unknown Speaker: Now, what do you got to say about that?

Mr. Chris Dixie: Well, we took the bull by the horns and we say that we are well within the doctrine of the Younger cases.

As a matter of fact, if this fact situation is not strong enough to satisfy Younger, we doubt that you’ll ever find --

Unknown Speaker: Would you say that the harassment and bad faith would have to exist with respect to each of these statutes?

Mr. Chris Dixie: Well, Your Honor, these statutes were interwoven in their use and they were used --

Unknown Speaker: So your answer apparently is no?

Mr. Chris Dixie: That’s right, that’s right.

It’s a whole course --

Unknown Speaker: So you could just find a general pattern and then pick out any statute you want and say there is bad faith in its enforcement.

Mr. Chris Dixie: Well, no.

Unknown Speaker: That’s what you did here apparently because with respect to some of the statutes, there -- concededly there is no bad face enforcement.

Mr. Chris Dixie: Oh no!

With respect with each and --

Unknown Speaker: Well then you say would they respect to each work.

Mr. Chris Dixie: That’s right.

Unknown Speaker: And you must feel that?

Mr. Chris Dixie: That’s right, with respect to each one there was bad faith –-

Unknown Speaker: (Voice Overlap) with the record then to say if you’ve satisfied that.

Mr. Chris Dixie: That’s right.

Unknown Speaker: Because I gather by looking at the page 50 of the jurisdictional statement, you have explicit finding by the three-judge court and that all of those prosecutions under each of the statute for instance in bad faith and for the purpose of harassment.

Mr. Chris Dixie: Maybe it’s correct.

Unknown Speaker: You say that’s what brings you again the Younger exception?

Mr. Chris Dixie: That is correct.

They --

Unknown Speaker: My brother White has said, I supposed that depends on the record.

We have to go in to this record to see whether that is supported by what?

By substantial evidence or what?

Mr. Chris Dixie: Well, Your Honor, these fact findings are unchallenged.

One of -- you have extensive District Court fact findings and you don’t have one mention of Rule 52 or any statement that they are clearly erroneous or anything like that in this case.

This -- I’ve been so puzzled why the Attorney General has presented the case this way when he his jurisdictional statement appear.

He made no issue of the findings of fact and we call the Court’s attention and then when he filed his brief on the merits, you give the same thing, they just ignore the fact findings of the District Court and this is a very remarkable case in its fact.

Almost unduplicated and in fact it is unduplicated in any decided case that I know of.

I suggest Your Honors that we start in this case with the findings of fact which have not yet been challenged.

Now then including --

Chief Justice Warren E. Burger: Mr. Dixie, are you -- before you go on, you referred to wholesale arrests, am I correct?

That the arrests were at the rate of about one a week here or not?

Mr. Chris Dixie: And that’s not correct Your Honor.

Chief Justice Warren E. Burger: If it’s 13 months, should it be not much more than one a week, would it?

You say 60 and I think someone else said 70 in the briefs arrest.

Are those figures wrong?

Mr. Chris Dixie: Well, I’m afraid you do Your Honor, may I summarize it for you this way.

I believe --

Chief Justice Warren E. Burger: Well particularly the number of arrests.

Mr. Chris Dixie: I believe our arrest say that we have produced 55 cases of arrest while the arrestees were engaged in First Amendment protected activities.

Chief Justice Warren E. Burger: Well, I am just interest now in the numbers, then you argue it later.

Mr. Chris Dixie: That’s right.

Chief Justice Warren E. Burger: This time.

Mr. Chris Dixie: Well, it didn’t work that way.

As a matter of fact these arrests built up to a crescendo and that’s probably one thing I should explain to you.

On May 11, the Union developed important support on the Mexican side and the situation developed that the Mexican farmworkers were not coming across the bridge to work through these picket lines.

On that day at 4 o’clock in the morning Captain Allee, the Texas Ranger got up out of bed and drove 1 or 200 miles forthwith to the scene.

Then there, started a series of arrests, interspersed with brutality, beatings, terrorism, the works from May 11 until June 1 and on June 1, the Union threw up its hands and no one could get adherence under those conditions.

So the average of one of week is a mechanical average but its not -- it doesn’t reflect the crescendo of activities.

Chief Justice Warren E. Burger: You said they were concentrated in that area.

Mr. Chris Dixie: Well of course.

Chief Justice Warren E. Burger: What is the timing in terms of this business of putting sugar in the gas tanks and some violence that was suggested?

When did that occur in relation to the period you’re talking about?

Mr. Chris Dixie: Well it was unrelated to it.

I can’t see it directly and I’m not even sure that that’s in this record but the -- I think that what they’re complaining about happened about a year before this May of 1967.

Of course you’re aware of the fact that the District Court found that none of these things was brought forth to the union or any of its members in the proof.

This District Court found that and they also found that in the entire year, the only case, a physical violence was when one of our people reached and touched the arm of a truck driver as he passed by taking him by the sleeve and the sleeve of course slipped out of the man’s hand and the truck went on and the District Court explicitly found that that was the only case of physical violence on the part that any Union adherent during the year.

Now to go to your other question Your Honor, down in South Texas you get about four crops a year and there is a planting time and there is a harvesting time and these rise of arrests took place at the times when the Union would accelerate at its activities to reach the workers during the planting time, during the harvesting time.

That’s when the workforce is large, that’s when the Union would make its effort to organize and that’s when the arrest would take place.

So the arrest well timed to kill direct the potential effectiveness of the strike.

Now, to move on, this case was found as a class action by the union and by several individuals and the Court found that it was a proper class action by this people and they are adequate representatives of the class and there has never been any question in the District Court from the defendant and not the propriety of that.

The fact findings recite that there was a one year conspiracy of arrest without charges, dispersals, threats, bonding abuses, inducements by peace officers to the strikers to abandon there’s the union and go back to work and physical violence, all of it was mixed up with an interspersed with the institution of prosecutions in bad faith.

Unknown Speaker: Mr. Dixie?

Mr. Chris Dixie: Yes, sir.

Unknown Speaker: The District Court opinion on page 41 relating to article 482 the abusive language statute says that five union members had been arrested on that day.

It doesn’t indicate that they were named plaintiffs in this action.

Was one of the named plaintiffs in this action at sometime according the record prosecuted under 482?

Mr. Chris Dixie: I would have to check the record to determine that.

I know union officers were.

Unknown Speaker: I want to know about the name of the plaintiffs.

Mr. Chris Dixie: And I will have to check to answer that.

I’ll have to check to see who was there that day and was arrested.

Now then, the judgment as I’ve told the Court does not interdict to any pending prosecutions.

It’s a limited injunction and part of the injunction, is civil rights relief under 1983 or 1985 on the count of the conspiracy of this public officers to use the color of there officers.

I’d like to tell the Court something about the legal background of this case.

Texas law provides in a statute cited in our brief that any person may try to induce any other person to quit any employment enjoining the union for the purpose of bettering their conditions.

Texas law gives the right to bargain collectively or individually.

It provides that if a labor contract is signed.

The contract is lawful and not -- may not be a violated, that’s similar to Section 301 of the Taft-Hartley Act so that everything that the plaintiffs did in this case in terms of their ultimate objective was lawful under the Texas statute and the Attorney General stipulated as much at the trial of the case.

So in all of the application of the statutes, please bear in mind Your Honors that at no time we were, where we doing anything prohibited by Texas law, now Texas law also provides that an employer has no duty to recognize a union.

He may contract with it or he may refuse.

He may contract for all of them or some of them or one of them.

And if he does want the union, he’s got a right to fight.

In this case, the employers did elect to take to the economic contest and so the situation in this case is that the union was doing precisely what?

The state law contemplates that you have to do in that situation.

There is no question of the union’s violation of the ultimate public policy.

Now, the economic background of this situation is that Starr County Texas according to the census figures as one of the poorest in the United States.

The economic condition of this county and this farmworkers is the lowest in Texas substantially lower than our black population which God knows is low enough.

The growers operate large farms, hundreds of acres, vast fields, we have pictures in here to show you and by stipulation, it is developed that they -- that they whole in the agricultural workers by vast loads from far distances.

There is no such thing in this case as a congested traffic situation.

Everything takes place on the open road or out in the woods and it is in that context that this Court is going to have to evaluate the application of the 50-foot law by the State of Texas.

But we have brought cases here where the Texas rangers went out during the harvesting season in May and they have three pickets out in the woods on the side of the field who were calling to the strike to the workers to come out.

Those three were arrested for past picketing that was more than two.

Then there were ten other Mexican Americans under the shade of the tree under that hot day and the evidence shows that the ranger captain says run them into for mass picketing statute.

Unknown Speaker: Well, Mr. Dixie.

Am I right, the three-judge court did not hold these several statutes that it did hold unconstitutional?

Unconstitutional as applied but facially unconstitutional of it?

Mr. Chris Dixie: Facially unconstitutional is what I understand that they held, they say --

Unknown Speaker: Well, are you defending that holding aren’t you?

Mr. Chris Dixie: Yes, indeed.

Unknown Speaker: So we -- then we don’t have in occasion to look at the statute in the context that you say as applied to it.

Mr. Chris Dixie: Well, it seems to me and I believe that the Chief Justice has written in one opinion that I took care for load up that one of the ways you can come to the conclusion of overbreadth the most easily is if it’s validated by the actual application of the statute to constitutionally protect --

Unknown Speaker: Well, that’s the issue defending him or a judgment both that facially the statutes are unconstitutional?

Mr. Chris Dixie: Absolutely.

Unknown Speaker: And that you’re wrong about that nevertheless we have to find that as applied?

Mr. Chris Dixie: That is correct.

Now then this 50-foot statute, you got no traffic problems, they apply it without reference to obstruction and they say that in every situation to every 50 feet is enough.

Now let’s look at the position of the Union and the members in this case.

They are trying to induce hundreds of farmworkers to join them and the state wants to have two pathetic-looking pickets out there in an economic contest or economic power is going to settle the issue and the state says that that’s constitutionally sufficient while any politician knows that when you have a rally and you have a good attendance, that makes you look like a winner and encourages people to support you enjoin with you and believe in your cause.

The whole purpose of the statute, not the whole purpose but the whole effect of the statute is to make the Union look pathetic in a state mandated economic contest where they violate no public policy when they’re trying to get the others to join them.

Chief Justice Warren E. Burger: Well, do you mean that’s the consequences applied to this situation because of the large area involved but that -- would you say that would be true on a factory in Houston or Dallas located on one City Park?

Mr. Chris Dixie: The number of pickets would depend upon the situation, that’s what this Court has said many times.

The physical surroundings --

Chief Justice Warren E. Burger: But the two factual settings are quite distinct in this respect, aren’t they?

Mr. Chris Dixie: That’s right.

Chief Justice Warren E. Burger: A thousand acre farm as against a city block factory?

Mr. Chris Dixie: That is correct but you can also have a factory with 3000 workers.

We have such factories in Texas while require two pickets.

Incidentally, this statute prohibits observers, people who come there to see what will, how their welfare is being in handled and if they’re across the street standing in a group and not blocking anybody.

They are guilty of mass picketing because they are more than two every 50 feet, Your Honor and because they are there to observe.

Chief Justice Warren E. Burger: What’s the distance from the factory or the plant under this statute?

Mr. Chris Dixie: It makes no difference.

Chief Justice Warren E. Burger: 50 feet, isn’t it?

Mr. Chris Dixie: No, it makes no difference.

You can be 300 feet away but if you are there to observe or to induce people and you stand closer together than two every 50 feet you violate the statute.

That’s an unbelievable statute but that’s what it does.

It violates the statute to be that far away and it has been so applied.

Now, I’m afraid my time is getting away from me here.

One of the interesting features of this case is --

Unknown Speaker: Mr. Dixie, I know your time is running but this is a massive case?

Chief Justice Warren E. Burger: It is a massive case.

Unknown Speaker: We talk in all of that.

If we were to disagree with the three-judge court as to some or all of these statute as to their facial -- the holding of their facially unconstitutional, are you suggesting that we ought then examine this enormous record and decide for ourselves whether as applied, they are also unconstitutional or should we remand this as long as three-judge court to do it?

Mr. Chris Dixie: Well it would certainly be a shame to remand this case after all this many years of litigation.

But we’re not asking for anything except our constitutional rights.

Unknown Speaker: (Voice Overlap) But we have other things to do too.

Mr. Chris Dixie: I believe the fact findings are adequate to take you Your Honor passed the question of examining the record.

They’re all in the fact findings.

All you have to do is line up debates and see how --

Chief Justice Warren E. Burger: Well but you’re -- were looking aren’t you the central thrust to Justice Brennan’s question that the holding of the three-judge court was the time to the statute is void on its phase?

Mr. Chris Dixie: Yes.

Chief Justice Warren E. Burger: And if we should say that’s not so.

Then how could we sort out which of this acts, isn’t the District Court in much better position to do that?

Mr. Chris Dixie: Well, that’s a question of your judgment in judicial administration and you might wish to remand the case in that situation.

However, the facial unconstitutionality of these statutes other than the 50-foot statute seems to me to be well demonstrated by practically white horse cases from this Court.

Several of them within the last few terms and participated in by the present personnel of the Court.

I see no occasion to read seriously believe that the statutes are not facially unconstitutional.

Unknown Speaker: I’m right that only 784 was held to be facially constitutional, wasn’t it?

Mr. Chris Dixie: That’s another obstruction statute.

Unknown Speaker: Yes.

Where that was held to be constitutional?

Mr. Chris Dixie: Then it was indeed.

Unknown Speaker: And what we have as a picketing statute, the bad words statute --

Mr. Chris Dixie: And unlawful assembly statute.

Unknown Speaker: And all of them would and secondary boycott.

Mr. Chris Dixie: That’s right.

Unknown Speaker: So that’s four that were held to be facially unconstitutional.

Mr. Chris Dixie: That’s right.

Unknown Speaker: And only the fifth with instructions statute held to be facially constitutional.

Mr. Chris Dixie: That is correct and then a disturbing the peace statute was held unconstitutional and made an appeal on that one.

That was also held by another three-judge court and the legislature has since amended that statute.

Unknown Speaker: That’s one we had here in the Gunn case.

Mr. Chris Dixie: Yes.

Unknown Speaker: That was 474.

Mr. Chris Dixie: Yes, of disturbing the peace statute, right.

And I might say, I might --

Unknown Speaker: You make the point in your brief that the action of the court below does not prevent any state authorities other than the specific ten peace officers involved here from enforcing the statutes against any other people instead of Texas.

Mr. Chris Dixie: That’s right.

Unknown Speaker: How hard could that be so mostly unconstitutional if it’s held unconstitutional?

Mr. Chris Dixie: Well, we took the heart of what you said in Younger versus Harris one of the important considerations is to exercise as much committee for the state processes as his consistent with the protection of first amendment rights.

We come forward with something that our hope is in a main event in this case.

We leave the door open for legitimate prosecution and clarification of the statutes to make up constitutional while at the same time obtaining the necessary relief here to keep the First Amendment alive in Starr County Texas.

It’s a question of trying to confirm to Younger v. Harris teachings.

Chief Justice Warren E. Burger: So that it’s unconstitutional facially as to ten people, why isn’t it unconstitutional for everybody in Texas?

Mr. Chris Dixie: Well, that gets us to another question if the Chief Justice please.

No one in Texas has been arrested under the mass picketing statute on the criminal side of the docket since that statute was passed in 1947 just this farmworkers.

In fact I have never -- I have been practicing at the Texas by 35 years I have never known for this case one person arrested for peaceful picketing.

They have injunction cases to regulate the picketing and even injunction to stop all picketing which might be illegal but it was reserved for this Latin Americans to face jail, six months in jail we make quite a point of the tricky ways in which of the complaints were drawn and the statutes were invoked in order to terrorize the people.

We have --

Unknown Speaker: Mr. Dixie, I understood the Chief Justice ask you if it’s facially unconstitutional.

It’s an -- you can’t apply it to anyone in the State of Texas regardless of the aggravated circumstances that might attend its application to your client.

Isn’t that a correct statement?

Mr. Chris Dixie: If that -- that is a correct statement but it’s still open to the State Court to construe these statutes with plastic surgery or something in ways that would bring them within constitutional standards and the door is open for them.

Unknown Speaker: How can they construe a statute after this Court?

If this Court agreed with the judge courts, then they are way across the books, aren’t they?

Well is there anything left for the state courts to construe?

Mr. Chris Dixie: Well, I never had understood, I never have understood.

Let us say that a declaratory judgment would be res adjudicata as to the interpretation that a state court is going to give to a state statute.

You can declare a statute unconstitutional on its face and the way I understand it, the state court can read your decision and comeback later with a decision and say their Honors in Washington were mistaken about the interpretation of this case that we construe it vast and so and if they construe it in the constitutional way.

That is it, you are looking -- you are probably looking at a judicial declaration bound this court as a repeal.

It might be that.

I never have looked at it that way.

Anyway --

Unknown Speaker: At least not an overbreadth.

Mr. Chris Dixie: That’s right and I see my light is on here.

I think that there is important area for the legislature and these state courts to deal with these overbreadth problems and even with these vagueness problems and this is one place where it seems to me that they have been a little slow in catching on in the First Amendment area.

Your Honor ruled an opinion recently in which you said that the facial unconstitutionality declaration is from Madison.

Well, that’s true but in another respect, it’s not strong Madison if the legislature will just sit down and amend the law as a non controversial problem to tie it up.

First Amendment wise so that it cannot be misused as it has been misused in this case and I was thinking that perhaps this Court -- I hope it’s not an improper suggestion ought to consider saying so to the states because they’re a little bit slow on the uptake.

This Court should tell them.

They have a duty to enforce the constitution just like you do.

They should respond to your decisions.

Well, I haven’t been able within my time to cover the facts and so I will respectfully refer you to the brief.

I’ll use the rest of my time to say this to you Your Honor.

The facts in this case are so bad from the standpoint of official lowliness that this case calls out -- calls for something to be said by this Court to disabuse the minds of peace officers that this kind of conduct is tolerable.

I respectfully say to you that your efforts up on the bench and our efforts down here in the pit to encourage respect for a law and order are going to fail.

They’re going to be futile if this kind of conduct by peace officers is allowed to go unremitted in the Federal Court.

Chief Justice Warren E. Burger: Well you just stand on the findings of fact of the District Court which are not challenged here, isn’t that your position?

Mr. Chris Dixie: Yes and as I say is severity of the facts.

It lasted for a year and the biddings were unspeakable and the terrorism was unspeakable.

I will tell you frankly, I hated to go down there to try that case for my hometown of Houston where we think we are little bit more civilized but it was a duty and we’ve carry that to all this way and we ask this Court to do what’s right to let this law officers know that the Supreme Court does not tolerate this type of conduct.

Chief Justice Warren E. Burger: Thank you Mr. Dixie.

Mr. York, you have about 4 minutes left, do you have anything further?

Rebuttal of Larry F. York

Mr. Larry F. York: Yes sir.

I like just few moment.

I would like to say that in answer to Justice Rehnquist question earlier and Mr. Justice Blackmun’s question and we find no one less than any of the names like were ever charged with violation under 418.

The United Farm Worker versus La Casita case was affirmed by the Texas Court Civil Appeals.

I would also like to suggest to the Court that the preamble that we discussed earlier in my remarks is not, I don’t believe in the briefs unless it appears preamble to 54d it does appear in the official reported version of the Texas statutes and its available there for the Court but I’m not certainly available in the briefs.

We believe that there has to be a showing of a general pattern for each particular statute before the kind of Federal Court intervention talk to appear is proper.

We don’t believe that a pattern which just talked generally of what happened under a lot of statutes is sufficient.

For instance, under 54d the 54 under obstruction statute, evidence is that there were only about 25 arrests for that in the briefs spoken out by Mr. Dixie when the ranger was there after May 11.

The first thing that Captain Allee did is shown in Mr. Dixie’s brief was to go out and tell the people to get 50 feet apart which they did.

A week later, he came back and they were not 50 feet apart.

They are bunched up in a bunch and arrests were made and arrests were made on couple of other occasions under circumstances which were clearly violative of the Texas act.

There is no statement made in the briefs and in the record that there was any violence that I’m aware of it attached to those arrests under 54d.

We say that there can’t be an injunction whether the statutes be held constitutional but the -- under the theory of saying perhaps that they might be enjoined because it was a bad faith prosecution with no reasonable hope of conviction.

That’s clear enough to case here.

These statutes are facially valid.

Picket as we have discussed 54d and some detail with the Court, less the Court to so find it and to so find it facially valid.

Chief Justice Warren E. Burger: Do you agree that we take the facts as found by the District Court here since state of Texas has have challenged the fact finding?

Mr. Larry F. York: Your Honor, we don’t agree with all of some what we might call editorializing but as far as the findings of fact can say they were largely undisputed and we have no particularly quarrel with the facts.

We may disagree with some of the conclusions or statements made by the Court about what the fact show that is their conclusions for more or less undisputed facts.

But before as their conclusion about what the facts themselves were, we have a not particular disagreement with that and have not urged it upon this Court.

Unknown Speaker: Well, what is it that you do challenge?

There is an explicit finding of conduct that was in bad faith and harassment.

Mr. Larry F. York: Well, that’s the part of it that we did challenge in the sense of talking about the conclusions that they raise it from.

Unknown Speaker: So, they don’t add up to that?

Mr. Larry F. York: Yes, sir.

Unknown Speaker: What should be standard of review for us to apply?

We have done this before.

Mr. Larry F. York: The standard of review is far as --

Unknown Speaker: The findings of harassment in bad faith.

Say you don’t challenge the historical facts.

To say the historical facts as found don’t end up to harassment in bad faith.

Now what standard of review should we apply?

Mr. Larry F. York: I think in that area that is not a clearly erroneous standard in the sense of findings of fact but it’s an area of simply discussing the case isn’t trying to determine whether under the case is lift particular --

Unknown Speaker: Well, is that suggesting to me that’s a question of law?

Mr. Larry F. York: I believe it is.

I like the bad faith aspect covered in that sense is wrong question Your Honor.

Unknown Speaker: Bad faith is unusually a wrong question or harassment?

Mr. Larry F. York: Well, as a conclusion from these facts, whether it’s sufficient under the Younger cases.

Unknown Speaker: You mean it’s like negligence?

So that is not --

Mr. Larry F. York: Well it’s a mixed law and fact question.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.