American Civil Liberties Union v. Mabus

719 F. Supp. 1345

AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI, INC., Delta Ministry, Owen Brooks, and Ken Lawrence, on Behalf of Themselves and a Class of Others, Plaintiffs, v. Ray MABUS, as Governor of the State of Mississippi, et al., Defendants.¹

Civ. A. No. J77-0047(B).

United States District Court, S.D. Mississippi, Jackson Division.

July 27, 1989.

COPYRIGHT MATERIAL OMITTED

Shirley Payne, Jackson, Miss., Jack D. Novik, American Civil Liberties Union, New York City, Ronald W. Lewis, Oxford, Miss., and Dixon L. Pyles, Jackson, Miss., for plaintiffs.

Stephen J. Kirchmayr, Asst. Atty. Gen., Jackson, Miss., for defendants.

MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

This cause is before the Court on cross-motions for summary judgment, and motions of the Plaintiffs to amend complaint and for interim relief. The action arises from the activities of an agency of the State of Mississippi, the State Sovereignty Commission. The Plaintiffs claim that the Commission violated their constitutional rights, that the sealing of records of these violations further derogates their rights, and that they are entitled to declaratory and injunctive relief.

The Court has reviewed the extensive pleadings and exhibits filed by the parties and heard the argument of counsel and finds that no genuine issue of material fact exists. For reasons set forth below, the Court will grant summary judgment and permanent injunctive relief to the Plaintiffs.

I. FINDINGS

The following facts are established by the record and are findings by this Court:

A. Creation of the Sovereignty Commission

Chapter 365 of the Laws of Mississippi, 1956, was passed by the Mississippi legislature and signed into law by Governor J.P. Coleman on March 29, 1956. codified, Miss.Code Ann. § 3-1-1, et seq. (1972); Miss.Code Ann. § 9028-31 et seq. (1942, 1956 Supp.) ("1956 statute"). Under the statute, the Governor, Lieutenant Governor, state Attorney General, Speaker of the House of Representatives, and eight appointed citizens served as members of the State Sovereignty Commission. ("Commission"). The purposes of the Commission were described by euphemism:

It shall be the duty of this Commission to do and perform any and all acts and things necessary and proper to protect the sovereignty of the State of Mississippi, and her sister states, from encroachment thereon by the Federal Government or any branch, department, or agency thereof; and to resist the usurpation of the rights and powers reserved to this state and our sister states by the Federal Government or any branch, department or agency thereof.

Miss.Code Ann. § 3-1-11 (1972). However, the understood purpose of the Commission was to maintain racial segregation in the South² despite orders for its demise by the United States Supreme Court.³ The Commission was to cooperate with other states to achieve this end. It was given the power to subpoena witnesses and documents under threat of imprisonment, and a witness was liable under the statute not only to punishment by a state Chancellor for perjury or contempt but also to public recrimination for failure to testify. However, any witness before the Commission was immune from prosecution for any act which related to his testimony or evidence. All officers of the State and its subdivisions, and of the institutions of higher learning, were required to "render such aid and assistance as may be requested of them by the Commission." The Commission was to employ "such legal, professional, expert, secretarial, clerical and other help deemed necessary and proper" to carry out its objectives. Miss.Code Ann. §§ 3-1-13 to 13-1-27 (1972).

Of particular note in this cause, the Commission was "to keep full and complete minutes and records of all its proceedings and actions, which said minutes and records shall be open to the inspection of any member of the legislature ..." Miss. Code Ann. § 3-1-15 (1972). Finally, the legislature delegated broad powers to the Commission to enforce the objectives of the statute. "The Commission is ... endowed with full power and authority to do and perform any and all acts and things deemed necessary and proper to carry out the objectives and purposes of this chapter." Miss.Code Ann. § 3-1-33 (1972).

B. Activities of the Sovereignty Commission

The Commission performed three general tasks: it gathered information concerning civil rights activists, it conducted activities to countermine the activities of desegregationists, and it directed public relations. The daily activities of the Commission were coordinated by an Executive Director, who managed a small staff. Personnel policy and the targets of some investigations were set either by the Governor, his representative, or the Director of the Commission.

The Commission hired agents to investigate civil rights rallies and marches as well as the individuals who sponsored voter registration drives and sit-ins. Some of these agents were spies, paid to infiltrate organizations and report details of organizational plans and of the lives of members, and some were full-time employees who reported rumors and observations in various towns. The Commission also sought information from law enforcement agencies out of state. Even so, much of the information gathered came from newspaper reports.

The Commission used several patterns in attempting to thwart desegregationists. The first was simply to warn local officials prior to boycotts, meetings, and voter registration drives, leaving the response to the local authority. The Commission also harassed individuals who assisted organizations promoting desegregation or voter registration. In some instances, the Commission would suggest job actions to employers, who would fire the targeted moderate or activist. The Commission caused applications for commissions as notaries public to be denied. The Commission maintained and distributed lists of people reported to be supporters of civil rights organizations or who supported public measures toward moderation or desegregation. These lists were made available to other law enforcement agencies.

The Commission's public relations program was twofold: to show that the State was peaceful and to discredit reports of the dissatisfaction of Blacks in segregated Mississippi. This program included promoting the establishment of welcome centers at state lines as well as sponsoring speakers and movies and issuing promotional literature. In the last years of the life of the Commission, much of its activities were directed away from intervention in civil rights movements and toward the more narrow ends of preventing violence.

C. Deactivation of the Commission and Storage of the Files

On April 17, 1973, Governor William Waller vetoed the bill which would fund the Commission. He stated then that the Commission

performs no real indispensable services to the people of this State. Its investigative work can and should be done by either the Department of Public Safety or the Attorney General's Office. Both departments now perform services overlapping the scope of this agency. This veto will add economy in State government and dispose of one State agency which is no longer needed.

1973 Miss. House J. 1278. Funding ended on June 30, 1973, and there is no evidence of Commission activity after that date.

House Bill 276 was introduced in the Mississippi Legislature on January 4, 1977. It provided for the repeal of the 1956 statute and that

the files and equipment of the State Sovereignty Commission are hereby transferred to the control of the Department of Public Safety. The Department of Public Safety shall use said files in the furtherance of the activities of said department.

A committee substitute was adopted which provided that the files should be placed in the custody of the Secretary of State and "immediately sealed and impounded" until July 1, 2027, when they would become public records in the care of the Department of Archives and History. The substitute added language to continue witness immunity as under the 1956 statute.

On the floor, an amendment was offered which would direct the Secretary of State to destroy the files, which initially lost by 48 votes to 64. 1977 Miss. House J. 158. Another amendment was offered which would have required the Secretary of State to

prepare an index of the names of individuals and organizations named or referred to in the files. After this index is compiled the parties so named shall be notified (sic) this fact by mail at the last known address as disclosed by the files.... Any individual or organization named in the files of the Sovereignty Commission shall upon demand be given copies of such records as will fairly indicate the context in which the name was so used in each place where it appears ...

1977 Miss. House J. 159. This amendment failed by a vote of 25 to 91. After this amendment failed, the first amendment was reconsidered and passed 87 votes to 31. As amended, the bill passed the House by 103 votes to 16. Section 2 of the bill as passed then read, "The Secretary of State is hereby directed to destroy the said files in their entirety."

Plaintiffs filed their Complaint on February 18, 1988. A Motion for Preliminary Injunction followed on February 22, and for a Temporary Restraining Order on February 15. The Temporary Restraining Order was granted on February 28, restraining the Defendants from "destroying, altering, concealing, or otherwise disposing of the records."

On March 2, the Senate adopted a new committee substitute, which passed by a vote of 35 to 9. The House concurred in the amendments by 110 votes to 7, and the bill was signed into law on March 4, 1977, by Governor Cliff Finch. Section One of this law provides that the sections of the Mississippi Code pertaining to the Commission are repealed. Further,

Section 2. The files and equipment of the State Sovereignty Commission are hereby placed in the custody of the Department of Archives and

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