Reeves Bowen: -- petition denial (Inaudible) judicial knowledge, or whether that point out to the Court that he has had a fair and adequate opportunity in a previous petition to present the question now presented judicially known to the Court. The order is in the same form. Now, I do not think that this order shows a decision on the merits. All it does is to say that he has failed to show probable cause. Supreme Court of Florida takes judicial notice of its own record. It said that time and again and that -- and then the cases where they -- it shows the application of that rule. Now, Supreme Court of Florida, in the present case here, if this order is quite consistent with the disposition on the part of that Court, knowing as we do, judicially, that Durley, (Inaudible) record, that he has raised the same federal question in 1952 that he now seeks to raise. He hasn't, in truth and in fact, shown probable cause showing it's illegal, was detained because we know that that's barred as a matter of res judicata. Or they could have said, if they thought that there was no res judicata, if they thought that the federal question had not been raised in 1952, they could have said themselves, why we know, as a matter of judicial knowledge, that he had a fair and adequate opportunity in 1952 to raise this question and since he did have, nothing he says here, shows any probable cause to -- to think he ought to be turned out
Stanley Reed: Did -- did I understand, before the recess, that -- that you said this was rather a standard --
Reeves Bowen: That is the standard form of order. I -- I -- that was my recollection. I checked it with the clerk over the telephone sometime ago. They've been using that standard form of order and a denial for many years with exception. I'll grant you that at times --
Stanley Reed: Correct.
Reeves Bowen: -- like Irvin against Chapman and -- and Washington against Mayo, in State ex rel.Johnson against Mayo, they had also filed an order to enunciate some principle that they think they ought to take time out from their -- from their busy labors for writing opinion about and they will deviate from that rule when they want to write an opinion but all -- in all other cases, this is the form of order that is used regardless of what I urge as a reason for denial. So, there's nothing about the form of this order that says the -- they considered the thing on the merits because he certainly had not shown any reason to think he'd been illegally detained if everything he said was barred by -- and judicially known to them to be barred either by the doctrine of res judicata or by the other doctrine that he had a fair and adequate opportunity to raise it before and didn't. Now, he didn't attempt to bring himself, in this case, to decide in 1955 down there. He didn't attempt to make the slightest excuse for not having raised the question in 1952, if, in fact, he thought he had not raised it. I submit that he did raise the federal question in 1952. But if he had thought that he did not raise it, he made no effort to bring himself under the Johnson case by giving an excuse for not having raised it. Presumably, he had a fair and adequate opportunity because he had counsel and knew everything then that he knows now. To get on to the merits of the proposition of double jeopardy or double punishment, I point out that in each case, the trial court judged Durley to be guilty of the offense charged in each count. There were three counts in each case. In case number 4179 it would best but nonetheless, the first or when he gets the first sentences in. The judge sentenced him for your offense charged in the first count. Then he sentenced him for your said offense charged in the second count to run consecutively with the sentence under the first count. Under the third count, he said, for -- for your said offense charged in the third count. And sentenced -- and made that sentence run consecutively to the other two. He did that over -- he did that in number 4172, also. And I submit to the Court that under the circumstances, that was a finding by the trial court that there were, in truth and in fact, three separate crimes charged in each information. Now, under the law of Florida, it is quite possible that under some circumstances quite permissible to allege several separate and distinct crimes in several counts of an information. For example, the (Inaudible) case that came up from Tampa charged four separate and distinct acts of receiving stolen property. They were days apart. The information showed that. Each of the -- the several counts showed that there were days and sometimes weeks apart. And yet, the Supreme Court of Florida held that -- that under the circumstances, that was quite proper to not only charge it that way but to convict him on each count and to sentence him on each count to run consecutively because they were actually four different crimes. Now, the law of Florida on larceny is as Mr. Rutledge just stated it to you --
Harold Burton: Do you see as this counsel had showed they were on the same day?
Reeves Bowen: Yes, they were, but it's quite possible --
Harold Burton: You mean you didn't --
Reeves Bowen: -- that he committed those larcenies on the same date from the same (Inaudible)
Harold Burton: Yes, that -- that he claimed --
Reeves Bowen: (Voice Overlap) --
Harold Burton: -- should be possible. Would we -- would we be required to presume that if a --
Reeves Bowen: I don't think you have to presume it when the Court's record here --
Harold Burton: I don't think (Voice Overlap) -- and certainly the indictment doesn't or the information doesn't allege it.
Reeves Bowen: No, it does not allege one way or the other. But the trial judge, after hearing the evidence, having heard the case tried, had judged him guilty of and sentenced him for three crimes in each case.
Harold Burton: Well, he might have thought that there were three crimes --
Reeves Bowen: Well if he -- if he --
Harold Burton: -- (Voice Overlap) the same time.
Reeves Bowen: -- if he did and so adjudged, why that's conclusive. The records can't be attacked cleverly and -- and made to say something different to what they do say. And I submit --
Harold Burton: But did the --
Reeves Bowen: -- that when he judged him guilty of three separate crimes in each case and sentenced him for three separate crimes, that that's conclusive and binding on the one except perhaps on direct appeal. On direct appeal, if the evidence had gone to Supreme Court of Florida and if the evidence had actually shown that that wasn't the case, that -- that there actually was only one crime, they would have reversed as they did in the Hearn case that Mr. Rutledge had cited. Now, the Hearn case is authority for -- for the -- for the proposition that where several things, animals or what not are stolen from the same owner at the same time and place and under the same circumstances that's one larceny and not more than one. But, the Hearn case also recognized that if -- it's a different time or different places or under different circumstances that it's immaterial whether it's from the same owner or not. They didn't say it in -- in these words but the case stands for this proposition that it's immaterial that it's on the same date. And so, with that being the law of Florida and with the trial judge having heard the evidence and presumably knowing what the law of Florida was, and when he then find adjudged him guilty of and sentenced him for six offenses, I submit that that is sufficient to withstand collateral attacks anywhere on these circumstances.
Reeves Bowen: Mr. Bowen --
Hugo L. Black: Do you mean that -- do you mean that if it's hard to admit it that he was bearing six sentences or six different offenses that barred and wouldn't supply any remedy for such a situation. If that -- if that's why he admitted the fact --
Reeves Bowen: I won't go that far. I think that, very likely, habeas corpus would lie if it would admit the facts that he had been sentenced more than one time for the same offense. I'll give an illustration of why I say that. There's a case but yet, within the last year so I can't remember the name where a prisoner had been and I'll -- first I'll say that our law on our statute on desertion and nonsupport is all ruled into one, desertion and -- and nonsupport, this order as for other, and it's all in one statute and it's held one fairly over one year. In the first count, the State charged him with -- with desertion. In the second count, it charged him with nonsupport during the same period as the desertion and of the same charge. And so, he applied for habeas corpus -- he -- the judge sentenced him to -- to one year on the first count, one year on the second count to run consecutively. After he had served one year, he applied to Supreme Court of Florida for habeas corpus and that Court held and properly so that desertion comprehends with it the nonsupport, the failure to support his child and that since he had been sentenced under the first count which embraced everything that was in the second count as -- as minor -- as a lesser ingredient or as -- as if included part of it. And -- and he didn't have to serve one year because one year was the maximum provided by the statute. That was the decision by this Court. And I'm inclined to believe that if there were no other impediment -- if there were no impediment in its way on procedural grounds, that if he, who admitted the fact that he had been sentenced more than -- to more than one sentence for the same offense that -- that he would be heard and he would be cut loose from another sentence.
Harold Burton: Well, let me do have collateral effects by habeas corpus?
Reeves Bowen: Not on the face of the record, they never permit the record to be impeded.
Harold Burton: Let us not face the record here. This man alleges matters berfore the record.
Reeves Bowen: Yes, but the record of the trial court which cannot be impeded, adjudged him guilty of six offenses and sentenced him for six offenses as I construe it.
Harold Burton: And he alleges in his petition to matters that he holds the record.
Reeves Bowen: Yes but matters that hold his record cannot be used to impeach what the record says. I think that is the (Voice Overlap)
Harold Burton: -- tax collaterally with him with -- by habeas corpus.
Reeves Bowen: Sir?
Harold Burton: You just admitted that you -- you can collect --
Reeves Bowen: You can -- you can --
Harold Burton: (Voice Overlap) habeas corpus.
Reeves Bowen: But, if the record shows -- now, in that case, in the case I'm just telling you about the desertion and the nonsupport, the record did not show that there were -- that the matter had been concluded if there actually were two crimes committed. The record tended to show to the contrary that there had been only one crime committed and he took that position and the State took the same position and brief the case and -- and pointed out to the Court just what I've attempted to explain that the record, if it wasn't an assault, it was upon what the record show, that the record was entirely consisted with his claim and even supported his claim that the second count embraced only what was charged in the first count because it charged, they were the same children and the same period of time, and it could not have been, otherwise, then he -- at least he said he was -- he wasn't trying to impeach a record, he would be going --
Harold Burton: And he certainly could have done it by coram nobis, couldn't he?
Reeves Bowen: To impeach a record? No, sir. Coram nobis would not -- (Voice Overlap)
Harold Burton: Assuming he knows the record (Voice Overlap).
Reeves Bowen: -- no other -- no other remedy will lie to impeach what the record says, except that on direct appeal is the only way I know of to impeach a record surely.
Harold Burton: What can you show under -- under coram nobis in Florida?
Reeves Bowen: Well, this Court in Heisler against State, treated a -- the question of perjured testimony of being proper for coram nobis and I think the Supreme Court --
Harold Burton: Well that certainly wasn't a form -- create -- a face of the record?
Reeves Bowen: Sir?
Harold Burton: That certainly wasn't on the face of the record.
Reeves Bowen: No, but the record did not find that there had been no perjured testimony.
Harold Burton: No, it never does.
Reeves Bowen: No, it does.
Harold Burton: Of course not.
Reeves Bowen: It does and I grant you that thing.
Harold Burton: Well you can't -- so you can't attack.
Reeves Bowen: Not where -- they're prepared on page -- I thought that this Court had cited many, many times that if the record says that this way, that's the way we must deal with, I'm talking about the record proper, I'm not talking about things not around the edge and this case, we have before the Court now, is in the record proper of the judgment in sentence. Another thing that can be attacked on coram nobis is where a plea has been induced even by fear of mode of violence or by coercion or duress or something of that sort, and perhaps, there are other things too but it is of -- I think they were to consider a claim by the man -- by a man that he was insane at the time he was tried, but I think they had probably considered that on coram nobis. It has a limited application but it has never been thought in Florida to -- to be permissible either on coram nobis or habeas corpus to contradict the record proper.
Felix Frankfurter: Mr. Bowen, I thought that an act of one has a difference about procedure (Inaudible) not his own. I thought that under coram nobis, coram nobis is the most, it would be the most to relieve in the Mooney against Holohan situation. Am I wrong about that?
Reeves Bowen: In the Mooney against Holohan situation, I -- I believe that it would be quite proper but there you have no record showing by the Court finding that it has then no perjured testimony.
Hugo L. Black: Well the jury's verdict indicates that, doesn't it?
Reeves Bowen: Oh, but the jury's verdict has not file in binding all the question that so told even in --
Hugo L. Black: It becomes a part of the record.
Reeves Bowen: Sir?
Hugo L. Black: It was something part of the coram --
Reeves Bowen: (Voice Overlap) It isn't a part of -- it isn't the part of -- of the -- of the Court record which cannot be assailed.
Harold Burton: Do you think any court would clarify its judgment upon the record if its judgment of guilt where it chose to read the -- the conviction is based upon perjured testimony?
Reeves Bowen: I don't say -- I don't -- I can't think of a court that I believe would do that. No, I don't -- I don't think of -- I don't know of a court that would that -- if it thought it'd have been perjured testimony would pass judgment?
Harold Burton: Well, I don't see any --
Reeves Bowen: Well, either that was made --
Earl Warren: Mr. Bowen, what -- what is the fact as -- in this case? Was this all one act of rounding up this (Voice Overlap) these kinds of --
Reeves Bowen: Your Honor, I do not --
Earl Warren: -- and telling them and taking the (Inaudible) on one profit.
Reeves Bowen: I -- I do not know. I do not know.
Earl Warren: Is there no record evident at all and the state --
Reeves Bowen: So far as I know, there is no record of the testimony at the trial -- at the trial proceeding.
Earl Warren: Was it recorded? Was it recorded by the --
Reeves Bowen: Oh, the stenographer -- court stenographer?
Earl Warren: (Voice Overlap) -- yes.
Reeves Bowen: Probably was. The way they work down there is that in permanent cases, normally the -- the Court reporter takes the testimony but never transcribed it unless there's an appeal. In this case, there was no appeal and I -- I may have made inquiry about this -- about the thing one time or another (Inaudible) over four years, approximately four years before he ever came to Court the first time and if I made inquiry, I was unable to get in with record because the -- the use -- it's not unusual for a court reporter after filing that there's got -- going to be an appeal to -- those notes were destroyed.
Harold Burton: Have it (Inaudible)
Reeves Bowen: That's all I have to say then.
Felix Frankfurter: Let me -- let me ask you this to see if I understand you. Your argument which is (Inaudible) that for all I want to know, this was not a single revenue -- single revenue. And for all I know, that would depend upon the testimony of the trial in what was before (Inaudible) If in fact -- if in fact, it wasn't all in one transaction like the Hearn transaction, that was proper -- a proper basis for taking an appeal. And that is by another decision that we've got in Hearn -- in the Hearn case. That was not done. Later on, I know there was an affidavit which would -- did set forth that it was (Inaudible)
Reeves Bowen: Yes, the -- the -- their affidavit claims that.
Felix Frankfurter: Now you --
Reeves Bowen: I don't know what the 1949 have to do but there is a (Inaudible) affidavit that came into -- placed somewhere along the way it does.
Felix Frankfurter: That's what the -- this is what I heard you say that in 1952, they appended their own affidavit.
Reeves Bowen: They did.
Felix Frankfurter: All right.
Reeves Bowen: They did.
Felix Frankfurter: There was an affidavit lately that -- that what I would regard an allegation of facts and not a clear inference of law. That this was all done in one -- in one -- as one thing and one event. That's true, isn't it, the allegation?
Reeves Bowen: That's what they claimed later on.
Felix Frankfurter: Now, do I understand you to say that that allegation in 1949 and in 1952 is not -- need not had been practiced -- need not have been contradicted, did not raise the status of the issue because that issue was in the case in the original trial but it was sought to be raised and it should have been raised on appeal. Is that your position?
Reeves Bowen: And that and this further, because the original judgment and sentence shows that there were six offenses and --
Felix Frankfurter: There were six but it shows that only while we have the record here --
Reeves Bowen: In that --
Felix Frankfurter: In that, there were six sentences.
Reeves Bowen: Yes but it -- it said --
Felix Frankfurter: -- but that how that might go wrong.
Reeves Bowen: I know he might have made a mistake. But he did say, for your offense in the first count, and then later on for your offense in the second count and to me that means that he has made a record showing there that there were six offenses.
Felix Frankfurter: Well, he may have -- he may have thought there's all in all six categories, hence, it would take you at the same time each constituted a separate sentence of both on the -- use that word, offense.
Reeves Bowen: If he thought that he made a mistake, but --
Felix Frankfurter: Very well. Now, assume he made that mistake. It is your argument, the time and the knowledge it showed him was on appeal and not subject of an appeal --
Reeves Bowen: (Voice Overlap) --
Felix Frankfurter: -- by habeas corpus or of coram nobis, is that it?
Reeves Bowen: It -- it certainly -- it certainly was the only way that I see that that our record showing can be undone or circumvented is by direct appeal. Now, I can't conceive of -- of a defendant coming to Court on habeas corpus and say, "I didn't have a lawyer when I was tried," I should have had one because of the seriousness of the charge and my inability to represent myself on the count of being as to what not and attached to that petition a certified copy of the record of the trial court which showed that he did have a lawyer and was represented through us. I can't conceive of him being able to -- to collaterally dispute that record and as such fashion, I don't think it's the law even to this Court. I know it's not the law of Florida, because if the record prompted that is the clerk's men of what transpired at the trial, they import absolute bearing and if they say that he was represented by counsel, he was represented by counsel so far as a collateral attack is concerned. And it's up to him if those minutes are incorrect, he has a remedy, he had the right to go to the Court and show that they're wrong and get an order and correct him to manage. That's been done in many times in -- in our State.
Earl Warren: Mr. Bowen, if -- if the Court had not said for -- for your offense in each of the sentences that you gave him, how would you suggest that you could have said it and not anything different and still sustain the judgment?
Reeves Bowen: I'm not sure that I understand but let's see if we do. If the judge had simply said under the first count, “I'll give you five years, second count, five years, third count, five years to all run consecutively, it might well be argued that he had not found him guilty of the one offense because frequently, it's quite true that the second count was charged of the same crime and -- and in a different way in order to meet the proof as it might come in at the trial and the third count will -- will do likewise and so on. There's no saying how many counts you might have. But here, he sentenced him for offense in -- in each count. (Voice Overlap) --
Earl Warren: (Inaudible) judgment for -- on any count, I'd have to -- I have to say it more than I just say I give you five years on the second count would (Voice Overlap)
Reeves Bowen: Well, there -- there's more formality to it in that but if the Court --
Earl Warren: But it mean, you have to say on your conviction of your offense charged in the -- in the first count, I sentence you to five years, wouldn't he, and on the other one and say the same thing?
Reeves Bowen: Actually, a judgment and sentence can be of a varied brief, all that a judgment implied under the statute is -- is adjudication of guilt and all in the sentence, of course, imposed a punishment, and it would be quite sufficient if the record laid a proper predicate for the judgment of sentence. Perhaps, if he's convicted by a jury or be guilty or be quite enough if the judge said, "I hereby judge you to be guilty as charged in information and I sentence you so and so." Usually, although more formal, they say, if the judgment of the Court that you are -- that the Court hereby judges you to be guilty and so forth and if the judgment in Court would sentence a law that you'd be confined under state prison for so much time and things of that sort. But, whether the Court agrees with me on this matter of the merits or not, I want to say one go -- go back to my original pieces for just a moment to say that despite the fact that at least one member of the Court points out that in Washington against Mayo, the Court did apparently based its decision on two points, one, that he'd had a previous opportunity and have to bail himself off it, and two, on the merits. Despite that, they did lay down the previous opportunity rule and they might have and probably did invoke that rule in this case of Dan Durley. And they also might well have invoked the rule in -- in the Johnson case that where he deals no excuse for not having raised it before, he's waived it forward and it won't be heard now. To -- to get along to the --
Hugo L. Black: May I ask you, you said something awhile ago that I didn't quite understand. Did this man have a lawyer in his original trial?
Reeves Bowen: He had a lawyer -- it doesn't appear in the record, I -- I'm advised out of the record that he did have. I -- it isn't in the record. It doesn't show one way or the other.
Felix Frankfurter: Is there any -- if at any stage of this -- if any of the proceedings after he's convicted that any of his effort to be relieved from consequence of any conviction, state as a ground that he pretty have a fair trial and that he wasn't properly -- wasn't -- did not -- because he's capable of this properly defenses.
Reeves Bowen: No, sir. No and --
Felix Frankfurter: And they're anywhere?
Reeves Bowen: No suggestion as I've ever run across of inadequate representation of counsel or that he -- or anything about the counsel. I've never heard that raise at anytime and that isn't before the Court.
Stanley Reed: Wasn't the record in the Florida trial showed that the defendant appeared with the counsel?
Reeves Bowen: The only record we have is the record within this printed record here, and it does not, to my recollection, say one way or the other. I think it -- it starts of something like this, you hadn't been found guilty or convicted by a jury --
Stanley Reed: It must have been --
Reeves Bowen: The court of judgment.
Stanley Reed: (Inaudible) that was before that.
Reeves Bowen: They were probably were interested prior to that time and -- and if he was, as I have been advised by the man who was counsel -- solicitor at the time they prosecuted him was represented by counsel, why then the record would naturally show that to be true. At least, to a limited extent, usually the record says present (Inaudible) John Doe, attorney for the defendant and some -- it's very sketchy showing but still it -- it normally does show something to that general effect.
William J. Brennan, Jr.: And your Court -- Court could have properly assumed that if there was no statement of contrary --
Reeves Bowen: Oh, we must assume that he -- that he had a fair representation by a counsel when he has never briefed, and yet, to the contrary, we can't assume certainly that he wasn't represented.
Earl Warren: Does the Court state, is he entitled to court-appointed counsel if -- if he needs it and asks for it?
Reeves Bowen: Sir?
Earl Warren: Is he entitled in your State to court-appointed counsel if he needs it?
Reeves Bowen: As a matter of statute, he is entitled as an absolute right to counsel if he doesn't have counsel and a capital case and all other cases. The courts, Southern Supreme Court of Florida, and I think of -- where I can file the trial court to follow the rules laid down by this Court if understand him correctly to be that where he is unable to get his own lawyer and where he is unable through ignorance or whatnot to adequately represent himself that he is entitled, as a matter of constitutional right, to have a lawyer furnished him. That is the rule, as I understand, in Florida.
Earl Warren: And to what extent do they appoint counsel there. Is it the usual thing where they asked for it or not?
Reeves Bowen: If it please the Court, it was before this case was held, began to come into this Court 30 years ago, I -- it's just to come -- well, I - there might have been some or in most of them have been since then, it were just a common practice in the Court for our practice for-- if a defendant didn't have and I'm -- couldn't get his own lawyer charged him with a serious crime for the Court to reach out and grab a lawyer fraction to that bar and said, "Now you come in here and represent this man, just as a matter of course." Now I grant you that all judges don't have the same due of what's right in pleading as -- that most of them do and it could well be that a -- that there'd be an isolated instance of a judge that wouldn't give a man counsel when he is entitled to another Constitution. You might recall the Wade Mill case for trying to reach this Court a few years ago from -- from Florida County. If I recall right, the Wade Mill case was bought them squarely upon the proposition that a boy, age of 18 years old, charged with a serious crime, unable to represent himself because of the ignorance the man experienced was entitled constitutionally towards -- to counsel. I think this Court so held and it's held that in many other cases too. And by and large, that's the rule they supplied in Florida and if it wasn't applied, and it was shown to Supreme Court of Florida that it should have been implied, they would see that it was applied.
Earl Warren: Well now, I understood you to say that 30 years ago, it was the rule to give them their counsel if ever they asked for it. Is that the rule now or is it the practice now?
Reeves Bowen: No. No, it isn't -- it is an ironclad rule.
Earl Warren: Well, how --
Reeves Bowen: There are certain cases, if for instance, it'd come under the Betts-Brady rule where defendant is tried by the judge without a jury upon a waiver of -- of jury trial where the judge doesn't feel that it's necessary to appoint counsel because it's his firm intention to see that it is right to safeguard it all the way along. And in a case of that sort, sometimes a judge will not appoint counsel even if the man requested.
Felix Frankfurter: To what extent are juries waived in a jury if criminal cases have been filed?
Reeves Bowen: May it please, Your Honor. In Dave County, where Miami is situated, I -- there's a criminal court of record in the court of crimes in the Circuit Court -- Circuit Court capital cases for the crime of misdemeanors, criminal court of record all furnished up to capital. And I have been told by a counsel practicing before that Court that around 95% of the defendants waive trial by jury, that's before Judge Ben C.Willard in Miami. Now in Jacksonville, the situation is not that way. There are reasons why they do waive their counsel. The record goes by and when they have counsel, they've been these many times advised them that has waived trial here. That we -- we --- we're better off if we do in -- in all respects, whatever he does tell him. Over in Jacksonville, now they don't have but -- they don't have but one criminal court of record to try the hundreds of cases that come before that Court every year. Just literally hundreds of them and Judge Willard can try a lot of them in -- in pretty short order because he's used to -- to the things that are important and he doesn't waste all day (Inaudible) But over in Jacksonville where they have a lesser population, considerably less, I think they'd counted and got about 703,000 according to a recent federal census, special census. Duval County maybe 300,000, approximately, 350,000, I don't know exactly, half or less in population. They have a -- a situation there. It's true, they don't have a court of crimes and they have misdemeanors too, but they found it necessary to install another court there recently with the same jurisdiction as the criminal court of record because they didn't waive the jury trials there like they did in Dade County and they -- and it just takes time and more time to try jury cases much more than it does to try a case without a jury. It's --
Felix Frankfurter: It isn't relevant to -- but -- but it's not without a moving interest?
Reeves Bowen: Sir?
Felix Frankfurter: It is not relevant through our immediate problem, but it's not without a nomination that you are free to tell it - why the difference? Why do they raise in Miami and not in Jacksonville?
Reeves Bowen: Well --
Felix Frankfurter: And it's the same condition hold in -- in the rural county in Florida? But that rule --
Reeves Bowen: Not -- not as in Miami.
Felix Frankfurter: No, it's about waiving, they don't do nothing.
Reeves Bowen: They do waive occasionally all over the State.
Felix Frankfurter: But not -- not preponderance.
Reeves Bowen: All over the State and every court, did I know anything about they do.
Felix Frankfurter: Not predominantly but not --
Reeves Bowen: No, sir, not predominantly. There is a -- is a reason. I don't -- I can't -- I don't want to be unfair to anyone but I have been told by lawyers in Miami that they prefer to try cases without a jury before Judge Willard and recommend to their clients that they do so for several reasons. One, it expedites the case and gets over with and they have -- they said they haven't anchored up to -- to prevent a case but it does get it over with. And second, they tell me that their experience has taught them that Judge Willard will give them breaks if there's any to be had from the case made that a jury might, probably wouldn't give him. In other words, he -- he is inclined to give them the benefit of doubts that they tell me a jury might not give them. And I -- I've been told that that is, perhaps, a major reason that they prefer to try him before Judge Willard. That he convicts a lot of people now. The three records in the Supreme Court of Florida shows that he does. But they -- they've told me that that's a -- a major reason why they do waive so much. But as I say, all over State, here and there, you'll find they're waiving the jury and -- and trying a case before the judge, some -- some counties more than others. But none of them that reached the proportions that was obtained in Dade County.
Reeves Bowen: Do you regard this sentence as a very unusual one for this type of offense?
Reeves Bowen: No, sir. I don't at all. I think that if there were -- if there were three separate larcenies in each case as the trial judge found any judgment in sentence that it was not in the least unusual. Nothing -- nothing cruel and unusual certainly, because under the law of Florida, each larceny of cattle is subject to be punished by imprisonment for five years. And it -- it was just -- it was -- now why -- I don't suppose I'm at liberty to tell you why. I know -- know things outside the record as only why I think that the -- that much sentence was imposed in this case. But certain it is that there's nothing unlawful about it. There' nothing cruel or unusual about giving to pay or giving a man a five-year sentence for each separate and distinct offense of larceny of cattle. I have known of innumerable instances where a lessee was just charged in stealing one cow or one calf. That he got five years. And if he committed six crimes, he's certainly subject to being sentenced six times for those six thefts, five years apiece. As I understand the rule that this Court has laid down in Louisiana against Resweber, the current and unusual punishment doctrine applies to the method of punishment. And here, I point out that he has no method of punishment imposed on him, that's the slightest bit different from anybody else. That it is better to him being 50 years old or whatever the -- the record shows him to be. It is, as I see it, totally unimportant. A -- a 50-year old man or whatever his age is, is just as guilty of stealing cows if he -- if he steals them as a 20-year old man is, and he started to exactly the same point but he knew how old he was when he stole them if he stole them.
Reeves Bowen: If you -- if your opponent has got no objection, I -- I would like to know what you think led to these sentences. It's practically a life sentence on this man for stealing six animals.
Reeves Bowen: Well, it -- it may amount to that. It's up to -- up to Mr. Rutledge in --
Neal P. Rutledge: And Your Honor, I -- I have a -- a story too that if we go into it it's -- I can't vouch for it but it's a -- it conflicts to a certain agree with his.
Reeves Bowen: Well, you should better not.
Reeves Bowen: Well, it might -- it might lead us down a blind trail that there is no benefit to anybody.
Hugo L. Black: May I ask you this and I want to be sure about one thing. If his allegations are true, what sentence do you think was the maximum the judge could have given him?
Reeves Bowen: If his allegation is true and if they can be heard despite the procedural objections and if they are not barred as being in conflict with the record of the trial court, then the maximum was ten years.
Hugo L. Black: And he has?
Reeves Bowen: He served that. He had served that back in 1952 and he so alleged when he filed that 1952 petition and we admitted it in our --
Hugo L. Black: He now has 16 more years to serve?
Reeves Bowen: No sir, I don't think so.
Hugo L. Black: How much more?
Reeves Bowen: In -- it was the benefit of gaining time, a prisoner gets out, after the first four years, he gets 15 days a month off and I don't -- I don't know exactly how long or time they would take to serve 30 years, but I would suggest probably 16 years and some days or months. The first year, he gets five days -- first and second years, he gets five days off for good behavior. The third and fourth years, he gets ten days off and after that he gets 15 days off.
Hugo L. Black: Often he would get - he would get off for good behavior if he had just had ten years presumably?
Reeves Bowen: Oh he would have been -- he would have had 10 years with the benefit of good behavior that he had earned and we conceded in 1952. He -- he had already made 10 years.
Hugo L. Black: Well the issue you have here then is that a man who, under Florida law, that his allegation got through and which you have not denied could not have been sentenced for more than 10 years, he's now serving apart of the 30-year sentence and your issue that you attend to us here that he has no right to relieve because of the fact that no appeal was taken and that the question was not raised in that way.
Reeves Bowen: I do submit most earnestly that he'd had a day in Court.
Hugo L. Black: And that irrespective, and assuming that he's serving a 30-year sentence, when under Florida law, nobody could legally be given more than 10 that he has no remedy.
Reeves Bowen: I'd say at the present time that I know of no remedy that he has.
Hugo L. Black: As it is, well I -- I suppose it wouldn't be relevant to ask you what I was about to ask (Inaudible) It's a rather strange situation to me.
Reeves Bowen: Well, it is -- it is different and it -- it hadn't been different, this Court would now grant a certiorari, I take it. It is a different situation from the average case. It comes to the appeal on petition for certiorari. No doubt of that, but the -- if he has remedy today, I don't know what it is.
Felix Frankfurter: May I ask you this?
Reeves Bowen: But that is a legal remedy, as distinguished from clemency that's a pardonable act.
Felix Frankfurter: May I ask you this, I want to make sure exactly what it is that you (Inaudible) Do I understand you to suggest that if this case on the record we now have, that he didn't claim, had come up before the Supreme Court of Florida on appeal from the conviction, that Court would have found the error and made revision of the sentence.
Reeves Bowen: If he -- if the -- if he'd taken it up to the Supreme Court of Florida on direct appeal with the testimony and claimed at that time that there actually were only two crimes committed instead of six and the record had so revealed, I have to say the Supreme Court of Florida would have reversed.
Felix Frankfurter: Yes, but do we know if the record would have told you?
Reeves Bowen: I don't know what the record would have shown, sir. I -- I really don't. I -- I have --I have never had the benefit of examining the record because as I said, I don't think anyone was ever prepared.
Felix Frankfurter: (Inaudible) property that if the allegation, would you say were not permanent because they were not (Inaudible) had been substantiated at the trial, then that leads on to the (Inaudible)
Reeves Bowen: I'm not certain that I understand that.
Felix Frankfurter: You're saying that the -- the only - the only thing that we could infer from your question this argument of yours, not that we can say if we have taken an appeal that doesn't -- that would have to impede except that it was illegal.
Reeves Bowen: We don't know that.
Felix Frankfurter: But that if the record had revealed the fact that they're now claiming was an affidavit, then he would have --
Reeves Bowen: Then he would have had relief --
Felix Frankfurter: No, no.
Reeves Bowen: -- at the hands of the Supreme Court of Florida. I -- I don't know actually what the record would --
Felix Frankfurter: You cannot say on this record, that's your position. That merely because he didn't take an appeal to be serving 30 years maybe instead of 10.
Reeves Bowen: I don't see how it can be so decided in the face of the trial court's finding that he committed six crimes.
Hugo L. Black: Now, I understand it further that the -- if his allegations are true, or that -- that the Attorney General's office is evident, it has not even made inquiries to ascertain whether or not his allegations are true, which if true, would show that he was serving 30 years sentence where the law could not legally give him the 10.
Reeves Bowen: I do not know of my knowledge whether the -- whether it's one way or the other. Do I have any time left to argue a -- a perjured testimony?
Earl Warren: No, sir. I -- I think your time is -- is up with -- by that red light, Mr. Bowen. Mr. Rutledge.
Neal P. Rutledge: Your Honor, I would just like to correct an answer which I made to your question, Mr. Chief Justice, about corroboration under Florida law as the -- my colleague pointed this. And for me, Florida has a rule that corroboration is not required --
Reeves Bowen: (Voice Overlap) --
Neal P. Rutledge: --in support of conviction and on the basis of the testimony of an accomplice. The judge does charge the jury to examine such testimony with care. I should also, on the jurisdictional point, like to refer this Court to the Williams versus Georgia case which was decided, I believe, in the last term which stated, as I understand it, that a State may be freed to lay down a rule that you cannot raise your federal question except to the particular point and that a state procedural rule which forbids raising the federal question at late stages in the case or by any other than the prescribed method has been recognized as a valid exercise of state power. But the Court went on in that case, as I understand it, to say that where the State does allow such matters in the Court's discretion, but then the U.S.Supreme Court, this Court may review the operation of such discretion, otherwise, it loses power over its own jurisdiction, and I submit that that certainly is precisely this case. The case has shown the Florida Supreme Court certainly -- we contend first of all, if it had any discretion in this case at all, certainly, exercised that discretion in ruling on the merits of this petition, and in any event, it has a discretion as shown by this decision, Florida decisions and that discretion, the use of that discretion is subject to review by this Court. I should like to also point out that in regard to the point of habeas corpus line to -- but General Bowen refers to impeach the record and I would like to refer in that regard to the Shoemaker case, Shoemaker versus Mayo. In that case, a man had pleaded guilty for the charge and he was permitted by habeas corpus to come in and challenge the -- the plea on the record by claiming that at the time he made that plea, he was under the influence of -- of a narcotic drug. In short, he was able to go in and challenge that plea by the means of habeas corpus, and indeed, this Court, in a very recent case, Chandler versus Fretag had before it, the very same situation in which General Bowen mentioned of the record in that case came from Tennessee, specifically stated that counsel was present but petitioner in that case was permitted by witnesses to come in and show the contrary, the exact contrary that he had no counsel and indeed after he had made in pursuance of showing by witnesses, the State conceded the error in the record. I should also like to point out finally, in regard to this res judicata point, that the (Inaudible) affidavit - the affidavit which states that these - the evidentiary point, in other words, the condition of the record that the testimony of these two accomplices show that these cattle were all taken at the same time. That affidavit was never attached to any prior petition. It was -- the affidavit was made in 1955, I believe, and it was attached only to this last petition. And indeed, we submitted that if you examine the 1952 petition, it will show on its face that it challenges only the face of the record. It states in paragraph 2 and paragraph 5 or section - Article 2 or Article 5 of the petition. It state that the counts and I'm quoting now, “Do in fact charge the one and the same crime.” And again paragraph 5, "That the two informations aforesaid do make out for two crimes." In other words, the whole thrust of that petition was at the face of the informations, not at what the testimony produced. This is the only case where petitioner has raised this point. That on the evidence produced by the State, he was unlawfully convicted three times for a single offense. Thank you.
Earl Warren: Mr. Rutledge I -- on behalf of the Court, I should like to thank you for having accepted this assignment for the Court and for the enlightenment you -- you have given us. I -- I believe that every American can take more -- can take comfort and have an added sense of security that the lawyers are willing to accept assignments such as this without compensation and pursue them as diligently as you have. But Mr. Bowen, I say that, of course, without belittling at all, the service you have rendered to your client, the State of Florida. We'll adjourn.


Warren E. Burger: We will resume arguments in No. 73-328, Lehman against Shaker Heights. Mr. Schwartz, you have about 20 minutes remaining in all.
William H. Rehnquist: Mr. Schwartz, may I ask you a question before you begin?
Leonard J. Schwartz: Yes, sir.
William H. Rehnquist: Your -- your client, I take it isn't running this year, is he?
Leonard J. Schwartz: In 1974?
William H. Rehnquist: Yes.
Leonard J. Schwartz: Yes, sir, he is running?
William H. Rehnquist: In -- In the same district?
Leonard J. Schwartz: Yes, sir.
William H. Rehnquist: So he would probably have occasion again to ask the Shaker Heights bus people to get you -- put his posters on the bus?
Leonard J. Schwartz: Yes, sir. In fact, he has told the Shaker Heights bus people that he wants space should he prevails.
William H. Rehnquist: Prevail what, in the primary?
Leonard J. Schwartz: Should he prevail this case here for the primary. At the conclusion yesterday, we had covered two coins. One, that the test which must be applied with compelling state interest test. And two, we could examine the justifications for the policy presented by the city and found that they would not stand up scrutiny. Today, I would like to address myself to the final point in this case. And that is the grounds upon which the Ohio Supreme Court ruled and which we feel are not only unsustainable but are quite ridiculous. The Ohio Supreme Court ruled against petitioner, principally on the ground that the establishment of a commercial advertising program could not be considered to have opened a forum because this Court had previously ruled that commercial advertising was not free speech. Hence, it followed according to the Supreme Court that no forum was open for free speech. Well, the argument is obviously unique. It's just as obviously without merit. To begin with, Valentine involved the validity of a local sanitary ordinance. They prohibited the distribution in the streets of commercial and business advertising matter. The Court held that the ordinance was constitutional both on its face and as applied. Yet, whatever validity Valentine may still have, it certainly cannot be read to permit a state to allow commercial advertising on a New York street while preventing free speech path to accept the argument that one can allow commercial speech while disallowing political speech is to implicitly overrule Hague versus CIO and to readopt the Davis versus Massachusetts rationale where the result have been any different in Hague if the city's ordinance in that case had read, “We will allow all commercial advertising but no free speech advertising.” The statement of the question seems to me answering enough. Yet, of the opinion of the Ohio Supreme Court stands, if the commercial over free speech argument works in the transit cars, I could not -- for the life me say, “Why it does not work in public parks, the city streets, on open military bases, in municipal owned auditoriums, near school houses or anywhere else that the open forum doctrine has been used to prevent selective exclusions from a public facility.
Warren E. Burger: It would follow from your position that a newspaper would be required to accept all political ads. Would it -- or does that not necessarily follow from your posture?
Leonard J. Schwartz: I believe it only follows if the paper is run by the Government, such as we have in some school cases.
Warren E. Burger: In other words you must have the state action factor.
Leonard J. Schwartz: Yes, Your Honor. Without the state action factor, of course, there is no open forum that comes into play. In the university where there have been several cases where the state action is involved, courts have universally held that there is an open forum. What we have tried to point out in our brief is that the real question is not whether there is an open forum for free speech, but whether the forum has been dedicated for speech. Once the city has made the initial determination that advertising does not interfere with its primary function of moving people from one point to another. They have opened the forum, they have determined that advertising does not interfere with its primary function. At that point, they cannot exclude based on reference, the content. It is at that point that should -- the Mosley case comes into play. Now, that doesn't --
Potter Stewart: How much -- how much this advertising -- how much was it going to cost if it had been available?How much it cost to other cities in Metromedia Advertising?
Leonard J. Schwartz: I don't recall it. It is in the appendix and I can find it. But the -- the right for political advertising is higher --
Potter Stewart: That's what I thought.
Leonard J. Schwartz: -- that the right for regular commercial.
Potter Stewart: And none of the cases that you have cited involving, certainly, Mosley and the others as I remember it, none of it involved of fee charged by government, did they?
Leonard J. Schwartz: Well --
Potter Stewart: A fee that some might be able to pay and others might not.
Leonard J. Schwartz: Not -- Mosley did not involve that. The cases cited from the California Supreme Court and from the Washington Supreme Court.
Potter Stewart: Cases except from this one?
Leonard J. Schwartz: Certainly, who are similar to this one and involved the fee problem.
Potter Stewart: You don't know how much this is going to -- most of your client hadn't been available Mr. Lehman?
Leonard J. Schwartz: No, I do not know what it was going to cost Mr. Lehman had he been able to rent the space.
Potter Stewart: But it is higher than the commercial rate?
Leonard J. Schwartz: It is higher than the commercial rate.
Potter Stewart: Generally, cash is required in advances.
Leonard J. Schwartz: I couldn't answer that, I simply don't know.
William H. Rehnquist: If the city put commercial advertising on its garbage trucks, would you think that the same principle that you are urging here with respect to public transport should apply or do you think, there the city might have a stronger argument that he just doesn't look right to see a publicly owned truck going around with political advertising on it?
Leonard J. Schwartz: Well, I think I would make the same argument, Your Honor. I think once they have determined that advertising would be appropriate on that particular place. They accepted the individual involved to determine whether or not he would want his political advertising to be on the garbage truck. I can't say that the State has the right to make that determination, unless they can show a compelling state interest.
William H. Rehnquist: But what about the interest of not wanting to become identified as a city with -- with the campaign of one particular parties and candidate?
Leonard J. Schwartz: Well, as long as they make it available equally, that would not have -- certainly, it has never happened in those areas in which Metromedia does allow political advertising. I just simply do not believe that the American public is naïve enough to believe that the city is supporting some. And secondly, I believe that they can always have an exclaimer -- disclaimer placed on the ad. As far as the question about the garbage truck, I don't think personally, that a politician would want his son on the garbage truck. But again, I -- I really feel that that's a decision to be made by the person involved. And it -- it brings us to a point of, should the city itself say that there is something inherently wrong with politics that we have to hide political science from view. I -- I would really fear --
Warren E. Burger: Well, would a -- would you think a newspaper that refused to accept the ads was in effect declaring that there was something inherently wrong with political campaigns?
Leonard J. Schwartz: No, I'm not sure that I would but on -- yet, regardless, there would be nothing we could do about it because of the state action. But for the State itself, to say, there is something inherently frightening about a commercial that advertises a man who is running for office. It seems to me just to fly on the face of the whole First Amendment. I referred it something that Justice Brennan -- Mr. Justice Brennan wrote in dissent that the suggestion that constitutionally protected political signs may be banned because some persons may find the ideas expressed offensive is in itself, offensive to the very meaning of the First Amendment.
Potter Stewart: Can you say that was a dissent?
Leonard J. Schwartz: Yes, Your Honor. I think that Mosley is the last and most recent, the long line of unbroken decisions of this Court which is held at the public forum right is a guarantee of nondiscriminatory access to publicly owned or controlled areas of communication. Regardless of the primary purpose, for which the area is dedicated. So long as the transit system finds that transit advertising does not interfere with its primary role of moving people. It cannot selectively exclude from speaking on the basis of what is to be said. The State cannot select which issues are worth discussing or debating in public facilities. Hence, the only real issue in this case is whether or not there is a compelling state interest for the selective exclusion. An examination as we did yesterday of the rationale for this policy finds that there is no compelling state interest. Thank you.
Potter Stewart: Before you sit down, on page 13 of your brief that you have (Inaudible), Footnote 18. It's a minor point but I want to be sure I understand the right that you're talking about. Are you talking about the -- do you see the Footnote 18 there?
Leonard J. Schwartz: Yes, sir.
Potter Stewart: The protection against not -- the protection against nondiscriminatory access. You don't quite mean that, do you? You mean protection against discriminatory access.
Leonard J. Schwartz: Against discriminatory access.
Potter Stewart: Or -- or the guarantee of nondiscriminatory access?
Leonard J. Schwartz: Yes, sir.
Potter Stewart: (Inaudible)
Leonard J. Schwartz: Yes, sir. It should be the protection against nondiscriminatory --
Potter Stewart: Or the guarantee of nondiscriminatory access, right?
Leonard J. Schwartz: Right.
Potter Stewart: Thank you.
Leonard J. Schwartz: Actually, a reference to Mosley decision, where the Court determined a First Amendment, Fourteenth Amendment case with reference to the Fourteenth Amendment Equal Protection rather than solely based on the First Amendment.
Warren E. Burger: Thank you Mr. Schwartz. Mr. Donaldson.
Paul R. Donaldson: Mr. Chief Justice and may it please the Court. This case was originally tried by Mr. Walter C. Kelly who was then the Law Director of the City of Shaker Heights and has successfully defended the action throughout the courts of Ohio. About a year ago, one of the defendants in the case, Paul K. Jones and mayor of Shaker Heights, retired and Walter C. Kelly took his position, then I then became the law director and inherited the defense of this case in this Court. To my knowledge, the exact question on this case has never been answered by any Court in this country. And that is whether the First Amendment precludes the municipality from refusing to sell political advertising when it sells all other forms of paid commercial and non-commercial advertising for display upon a transit system it owns and operates. I'd like to point out the burden here is on the petitioner to demonstrate the unconstitutionality of the city's policy. I think, we have basically four classes of the forum involved. One is newspapers, magazines, television and radio stations in which the courts have held that these are open forums where political advertising must accept all forms of advertising. Public meeting room streets and parks are second category, which also come out to the First Amendment. There is the rapid transit street cars and so forth which we feel that there is no inherent right to begin with if we permitted no advertising whatsoever. There would be no right for the petitioner here to place his political ads on a rapid transit.
Harry A. Blackmun: I think the petitioner agrees with you about that.
Paul R. Donaldson: Right.
Harry A. Blackmun: That you could verbally and validly to say there's going to be no advertising on our cars.
Paul R. Donaldson: That's right, sir.
Harry A. Blackmun: But the point is since you have said there's going to be advertising on our cars, that's what he says makes this an open forum so to speak.
Paul R. Donaldson: That's correct.
Harry A. Blackmun: In other words, there is no dispute as I understand it between you and the petitioner as to your right to say, “We're not going to have any kind of advertising on it.”
Paul R. Donaldson: That's right, Your Honor.
Thurgood Marshall: Why do you prohibit political advertising?
Paul R. Donaldson: Well, they prohibit political advertising for a number of reasons --
Thurgood Marshall: Is it all political advertising?
Paul R. Donaldson: All political advertising including bond issues, including candidates running from our own school board or our own city. They're all prohibited from advertising. It is a completely nondiscriminatory policy. It's been in effect for 27 years, it's been attacked only once before and it was upheld by both the Common Pleas Court and the Eighth District Court of Appeals of Cuyahoga County, Ohio. We refuse all candidates even --even our own issues --
Thurgood Marshall: Why?
Paul R. Donaldson: -- even our own issues.
Thurgood Marshall: Why?
Paul R. Donaldson: Well, we feel that there is a number of reasons first of all probably, one of the most important is showing political favoritism towards any candidate. Well, I think --
Thurgood Marshall: When you show this -- when you carry the one for quaky breakfast meal, is that your approval of quaky breakfast meal?
Paul R. Donaldson: No, it does not. But I don't think the public looks at that, as it might look at the same thing of a political candidate.
Thurgood Marshall: Well, if you carried the advertising of the opponent to the present mayor in office, would that be considered if the mayor was approving or disapproving? Do you think anybody is that stupid?
Paul R. Donaldson: No, not if we carry both of them but one of the biggest problems with our particular system and call the Court's attention to the petition for a writ on page 13(a), it sets forth the part of the contract of Metromedia, Inc. and the bottom paragraph of item 10 of the contract which is a standard contract used throughout the country. That political advertising will not be accepted on the following systems, the Shaker Rapid, Maple Heights, North Olmsted, and Euclid. But I think there is a good reason for this even though political advertising is accepted on larger systems. And that is that we have only 55 rapid transit vehicles. We have 20 spaces in each vehicle. Usually, when somebody advertise -- they advertises, they take the ad for a full month on a -- to cover one space in each of the 55 cars because at times, somebody's cars are out of service, they're in the car shop for repairs or for cleaning, some are not used during non-rush hours and in the wee hours in the morning and things of that nature. With a bedsheet type pallet that is very common in our area, we would end up with more candidates that could conceivably ended up in more candidates than we have space. Also these ads --
Thurgood Marshall: So -- so therefore because you had too many, you might have too many or all.
Paul R. Donaldson: That's right.
Thurgood Marshall: Merely because it's political. Now, are there any other reasons?
Paul R. Donaldson: Well, there is one other reason that we would then -- if we gave up all of the space to the political advertising --
Thurgood Marshall: But suppose you had all of the space brought up the quaky crackle breakfast --
Paul R. Donaldson: We would not permit anyone to buy up all the space.
Thurgood Marshall: But you could -- but could you put the same rule into political ads and limit them?
Paul R. Donaldson: We could limit them but I don't think we have enough space to go around. Very often, we have money more than 20 candidates running at our own --
Thurgood Marshall: How many applications --
Paul R. Donaldson: -- city.
Thurgood Marshall: -- did you have this time?
Paul R. Donaldson: I really don't know how many applications there were. This is the only one that was called to my attention.
Thurgood Marshall: What other reason do you have? Do you take any other kind of ad under the sun not political?
Paul R. Donaldson: Well, right. We have ads that -- we took pre-Christmas ads at the same time being advertised. The political ads would be on during the month of October and early part of November. If we took all political ads, we would then be losing that business which we might not get back.
Thurgood Marshall: I don't understand that this case doesn't involve taking all political ads.This case involved taking one ad.
Paul R. Donaldson: I think if we open the forum, Your Honor, to one ad, then we must take all political ads anybody that wants to advertise. I think that's been the difference in all these other cases.
Thurgood Marshall: And what evidence do you have of that, that that would happen? Your theory, that's about all it is. It's your educated guess.
Paul R. Donaldson: Well, I think that wherever one candidate advertises, others follow a suit and then determine that that's the proper forum for them, they use it too. They think they can get votes those running for political office.
Thurgood Marshall: Is there any other reason?
Paul R. Donaldson: Pardon?
Thurgood Marshall: Is there any other reason for barring political ads?
Paul R. Donaldson: Well, we -- we feel that this is the fairest and best policy. It has the least room for abuse. We -- we have a non-partisan government ourselves. We want to keep it that way. We have no denial here of equal protection. There are no vague or standardized policies involved. We feel this is the -- the best policy for the entire community and because we do have a small system and a very limited system. Our system runs from the City of Shaker Heights into the City of Cleveland and cover -- we'd cover all those candidates running for county office, City of Cleveland offices or Shaker Heights offices.
Harry A. Blackmun: How many of these spaces are committed for long periods to ordinary commercial advertising?
Paul R. Donaldson: As far as I know, each space has taken for a month in a time now, whether they take them for more than one month, I -- I think probably depends on the requirements that the advertising company has.
Harry A. Blackmun: But I -- I take it -- an application is honored only when there's an available space?
Paul R. Donaldson: Yes.
Harry A. Blackmun: Do you have any -- any standard practice in that respect?
Paul R. Donaldson: Well, I think that --
Harry A. Blackmun: I mean, even if you have a number of applications, is it on a first come first serve --
Paul R. Donaldson: Probably on a first come first serve basis and probably, take newer ads over older ones so that we can keep the business circulating.
Harry A. Blackmun: Well, if are required to take political advertising, I take it you'd have to adopt the same procedure to --
Paul R. Donaldson: Well, yes and no except that political ads are usually only on the rapid transfer for a two-month period or it would normally be on for approximately a one-month period prior to the primary and general elections.
Harry A. Blackmun: But it would still be a problem I expect of available spaces.
Paul R. Donaldson: It would be very much of a problem of equal space and equal time.
Harry A. Blackmun: And then -- then I suppose you would have a problem of which to take if you do it on a first come first serve basis of some other comparable mutual procedure. I don't imagine your problems would be any different than they are with ordinary commercial advertising, would they?
Paul R. Donaldson: Well, I think probably what would happen is we would just discontinue the policy and lose our $12,000 a year income which is a very important income to cities and particularly, your transportation systems which I find it extremely difficult to operate these days out of the farebox. At which point, the petitioner would gain no rights whatsoever and -- and no one would have any -- any right to advertise on the rapid transit. The only thing that would happen is that the taxpayers in the City of Shaker Heights would lose their revenue. In each of the cases that have been cited by the petitioner, we feel there is a forum that has been previously opened up. Petitioner states on page 8 of his brief that Wirta case -- Wirta versus Alameda-Contra Costa Transit District allowed only commercial advertising and I like to point out to the Court that the Wirta District -- transit district allowed political advertising in connection with and at the time of a duly called election being held within the boundaries of the district. And the Court went on to state that our problem therefore is to reduce to a situation of which a governmental agency is refused to accept an advertisement expressing ideas admittingly protected by the First Amendment for display at a forum in which the agency is deemed suitable for the expression of ideas through the medium of paid advertisements. In that case, we did have a forum that has been previously opened, not so in the instant case. The other case which the petitioner relies on is that of Mosley -- Police Department of Chicago versus Mosley in which an ordinance prohibited all picketing with an 100 feet -- 50 feet of a school, except peaceful picketing involving labor disputes, again of distinction. Peaceful picketing involved in labor disputes was okay but any other kind of peaceful picketing was not. And the Court said, once a forum is opened up to assembly or speaking by some groups, the government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone. It may not be justified by reference to content alone.What our argument again is that a forum had been opened up. There has been discrimination in that particular case. In Valentine versus Chrestensen, this is the first case that presented -- squarely presenting to the Supreme Court the issue of First Amendment protection of commercial advertising. Here, Mr. Chrestensen, owns of a submarine, which he brought to New York City to exhibit and was informed by the city ordinance prohibit the distribution of handbills. He then credited a protest on the reversed side of those handbills against the ordinance and against the police department. This Court stated at page 54 of its opinion that we are equally clear that constitution imposes no such restraint on Government that respects purely commercial advertising. And that again is our point that this is only commercial advertising and if there has been a distinction made by this Court between commercial advertising and other kinds of advertising. In the Pittsburgh Press case which is just decided last year by this Court. The ordinance prohibits classified ads -- ads for employment listed by sex. Justice Powell's opinion held the ordinance does not violate Newspaper Publisher's First Amendment rights. The respondent relied principally on the argument that this regulation is permissible because the speech is commercial speech, unprotected by the First Amendments traceable to the Valentine case. Although the Court acknowledged the principle in the Valentine case, it distinguished the same in this case because the ads further -- an illegal purpose that is sex discrimination. The question here as I see it is -- does commercial advertising create an unlimited forum? Does the acceptance of commercial advertising or how does the acceptance of commercial advertising which does not involve any First Amendment rights operate to create First Amendment rights were non-existent to begin with. We have public service signs in hospitals, libraries, public buildings, and so forth. Does this mean that we have opened up political forum for political science -- or opened a forum rather than for political science. Or can every candidate, who is running for public office insists on placing this political science in any federal building displaying public service advertising. There is and must contain to be a distinction between commercial, public service and political advertising as a matter of practicality. Or to put it in other way, are the places where political science permitted the only places where commercial science and public service science are to be permitted. We strongly feel that the policy of the City of Shaker Heights is the fairest and the best policy -- it involves no discrimination, is in fact not a forum for political science.
Warren E. Burger: Mr. Donaldson, what would you have to say about an ad that League of Women Voters or the junior chamber of commerce wanted to put in -- in the months preceding the election which resided simply of -- it is your duty as a citizen to vote on November 4 or whatever the election date is. That is commercial or political?
Paul R. Donaldson: We would regard that as a public service advertisement which we do accept.League of Women Voters and does not take a stand-on on candidates. If they took a stand on the issue, I think they do take a stand on issues but if they took a stand on an issue, we would not accept the ad and we will regard that as political. In the Zucker case quoted by the petitioner in this case dealt with the right of high school students to publish a paid advertisement in their school newspaper opposing to Vietnam War and the Court in that case held that a newspaper is a forum for the dissemination exchange of ideas and the essence of the First Amendment protections is extended to this media. That again places newspapers in the category with magazines, televisions, and radio of advertising.
Potter Stewart: Newspapers that where published by Government -- at a government university. Isn't what that involves? Assuming, if you were a newspaper, you'd have an absolute right. You'd have a constitutional right to turn down any advertising you wanted, wouldn't you?
Paul R. Donaldson: No, this -- this -- a school and newspaper operated by the school in a high school.
Potter Stewart: Well, it's a public school, isn't it?
Paul R. Donaldson: Right.
Potter Stewart: Tax-supported school.
Paul R. Donaldson: Right.
Potter Stewart: Tax supported newspaper.
Paul R. Donaldson: Right.
Potter Stewart: I hope you're not -- you said that twice that a newspaper has a duty to carry any advertising is profit to. I would suggest to you that it has an absolute constitutional right not to.
Paul R. Donaldson: Well, the cases involved here are those involving schools --
Potter Stewart: Government-run newspapers.
Paul R. Donaldson: Right, right. In the case of CBS versus the Democratic National Committee in 1973, Chief Justice Burger held the public into standard of Communications Act of 1934 which invites reference that the First Amendment principles does not require broadcasters to accept editorial advertisements. The FCC was justified in concluding that the public interest in having access to the marketplace of ideas and experiences would not be served by ordering a right of access to advertising time. There is some substantial risk that such a system would be monopolized by those who could and would pay the cost and that the effective operation of the Fairness Doctrine itself would be undermined.
William H. Rehnquist: But there -- the initial decision was by broadcasters who were not government owned too, wasn't it?
Paul R. Donaldson: That's correct but they do come out to the government standards, the government control and the Federal Communications Act. We submit that our policy is the same that there -- it's very well could be monopolized with a small number of cars that we have and the small number of advertising spaces.
Warren E. Burger: But wasn't the predicate of the opinion in the CBS case as you've called it that there was no state action involved in the functioning of broadcasters.
Paul R. Donaldson: Right.
Warren E. Burger: Was it for that limited purpose, although not necessarily for other purposes, a broadcaster was equated to a newspaper.
Paul R. Donaldson: Right.
Byron R. White: You have a non-parties in elections?
Paul R. Donaldson: Yes, sir.
Byron R. White: You don't allow anybody to run on a picketing (Inaudible)
Paul R. Donaldson: No, sir.
Byron R. White: So you keep the people from speaking (Inaudible) conflicts in your election campaign?
Paul R. Donaldson: No, it's just the way they filed for the election, they can speak about (Voice Overlap)
Byron R. White: But they don't -- they don't give (Inaudible) they don't run as a party.
Paul R. Donaldson: They don't run as a party but they -- the file is non-partisan -- rather than non-partisan ballot, but during the campaign, they can speak anything they wish.
Byron R. White: But what about the --
Paul R. Donaldson: They have certainly identified all those as members of both the major and political parties.
Byron R. White: They're found non-partisans but as they run, do they -- they say they act as a partisan candidate?
Paul R. Donaldson: Some do, some don't.
Byron R. White: There's no rule against it?
Paul R. Donaldson: No, sir.
William H. Rehnquist: Mr. Lehman's candidacy, I take, it was for the state representative of the general assembly. And that would have been a partisan designation one way or the other.
Paul R. Donaldson: Yes, sir.
William H. Rehnquist: Even though he was in a district that included Shaker Heights.
Paul R. Donaldson: Right.But again, that shows you how broadly the forum could be opened up to two state candidates, as well as county -- City of Cleveland, and the City of Shaker Heights, so we could end up with a very -- likely a group of people that would like to advertise on the rapid transit. I don't know of any way that we could properly handle all of them. Hillside versus the City of Tacoma, the specific -- thus a specific form as action -- a contract with the Tacoma Transit Authority asking the respondent to remove the end of Vietnam War signs is objectionable. The general rule of law in this respect is that while a state is on a no-duty to make its public facilities available for private purposes if it elects to do so. It must make them available in a nondiscriminatory basis and we do regard the constitutional right of freedom of expression. We maintain that here again, we have a nondiscriminatory policy and that we have not opened up the forum to any political advertising whatsoever.
William H. Rehnquist: You -- you get payment in advance from your commercial advertisers or do you bill them after the ad has run?
Paul R. Donaldson: Well I noticed from reading the contract that they require -- as a forum contract requires that paid political advertisements shall be paid for in advance. So I would presume that apparently, they don't ask for the commercial advertising in advance, maybe some deposit or something like that.
William O. Douglas: Do your commercial ads include literature, movies, things shown like the Last Tango or books, anything like that?
Paul R. Donaldson: No, sir. Public service ads involved the boy scouts and things of that nature.
William O. Douglas: Why do you draw the line of literature? That's commercializing.
Paul R. Donaldson: Well, I don't know why the line has been drawn. Again, I was not in this case in the beginning. And I don't think that issue from my reading of the case that issue never arose during the --
William J. Brennan, Jr.: Well Mr. Donaldson -- are you suggesting that you wouldn't accept the commercial ad for a bookstore or for a daily newspaper or for a radio station?
Paul R. Donaldson: Oh no, I think we accept those.
William J. Brennan, Jr.: Oh, I misunderstood you in your answer to my brother Douglas.
Paul R. Donaldson: No, I thought he was referring to a specific book or a specific movie.
William J. Brennan, Jr.: Well --
William O. Douglas: I was giving you an example.
William J. Brennan, Jr.: Would you not accept a commercial ad for a particular movie? They would not plan on.
Paul R. Donaldson: I really couldn't answer that. -- I presume, of course --
William O. Douglas: Do you have censorship in Shaker Heights?
Paul R. Donaldson: No, we do not. Other than the contract provides that the city can --
William O. Douglas: -- the prosecute the books that are alike to be obscene?
Paul R. Donaldson: The contract provides that the vulgar, greedy, immoral, monopolistic, illegal or unfair advertisements are not --
William J. Brennan, Jr.: No longer in political advertisements, I think.
Paul R. Donaldson: And political advertising --
William J. Brennan, Jr.: Well aren't those -- isn't that language, you can find it political? Any political copy and what it says, I'm looking at footnote 5 on page 4 of the petitioner's brief.
Paul R. Donaldson: Right.
William J. Brennan, Jr.: The policy, whether you consider an advertisement for a movie political copy?
Paul R. Donaldson: No.
William J. Brennan, Jr.: I don't want to be -- this is quite important I think. Are you telling us that you would not accept a commercial advertisement for a bookstore or a newspaper, or a particular radio program or a movie?
Paul R. Donaldson: No, we do accept -- we do accept commercial advertisements for newspapers, I know that.
William J. Brennan, Jr.: I thought your whole plan was -- accepted commercial advertising in all kinds.
Paul R. Donaldson: Well, I think we do basically.
William H. Rehnquist: Have you ever been tendered an ad for a particular newspaper so that you have something in the actual experience to know whether or not you'd take it?
Paul R. Donaldson: I've seen ads advertising both the daily newspapers in the Cleveland area. But we do take those kinds of ads whether we would take one for a particular movie or not, I presume we do. I've -- that question has never come up and I've never -- I had to rule on whether we would accept one or not. These are mainly handled through our advertising agency which is one of the respondents from the case Metromedia.
William J. Brennan, Jr.: I noticed that the forum contract 15a, the one says that it will not display advertising copy to dispose, misleading, deceptive and or offensive to the moral standards of the community or contrary to good taste copy which might be contrary to the best interest of the transit systems. Or which might result in public criticism of the advertising industry and or trends of advertising will not be acceptable.Who polices that provision?
Paul R. Donaldson: Metromedia has a police force up through the 27 years that we have owned the system. And to my knowledge, only once before has anything ever been challenged, any ads that has been challenged to the city directly.
William J. Brennan, Jr.: Well, I take it in advertising an advertisement that suggested see to see the Exorcist at such -- such a theatre might under this, do you refuse?
Paul R. Donaldson: I don't think so, 10 years ago maybe but not today. I just like to reiterate that we feel again that our policy is fair and it's the best one for the entire community to operate under and that it presents no discrimination. There is an absolute prohibition that has never been violated. There's no censorship involved and no vague or standard policies that has been set forth in some of the -- for all the cases and that every one of the case is cited by the petitioner can be distinguished from the instant case. Thank you.
Warren E. Burger: Thank you, Mr. Donaldson. Do you have anything further, Mr. Schwartz?
Leonard J. Schwartz: Yes, Your Honor. Very quickly, I'd like to answer a few things. The rights for advertising -- for political advertising is shown in the appendix of page 59 of Justice Marshall as $2.90 per card -- per card. This is a one-month right, the right -- the testimony says that the right was somewhat less than $2.90 for a period of over one month but it does not state, how much less. What --
William J. Brennan, Jr.: Assuming that you're right, political advertising must be accepted.What do you say of the problem with limited spaces?
Leonard J. Schwartz: Your Honor, that was --
William J. Brennan, Jr.: How it would ever be --
Leonard J. Schwartz: I'd like to refer the Court page 13(a) the petition for writ of certiorari which is the copy of Metromedia's regulations. Paragraph 8, equal opportunity to purchase space will be offered and allotted for each opposing candidate upon issue or referendum. If necessary, contracts for political advertising will be held until 30 days prior to the contract posting date at which time Metro Transit advertising will allocate the advertising space to each candidate issue or referendum. As to the argument of the --
William J. Brennan, Jr.: If you have 20 candidates and 20 spaces, this means it would reduce all other commercial advertising for that period -- date period and in light of the 20 spaces to the 20 candidates?
Leonard J. Schwartz: No, sir, Your Honor. If they've already contracted of those 20 -- or five --
William J. Brennan, Jr.: Well it's like 18.
Leonard J. Schwartz: That it -- well the point is, they would allocate the spaces that are not contracted for. And it may be that if there are more applications per our car, they would have to allocate that you can only have one on every four cars.
William J. Brennan, Jr.: But suppose they've contracted all 20, the regular constitutional -- regular commercial or institutional advertising?
Leonard J. Schwartz: In that case, they would not have to accept.
William J. Brennan, Jr.: Any political advertising?
Leonard J. Schwartz: Any political advertising. It is only if there is space available.As in this case, the testimony shows there was. The argument that if respondents lose this case, they are going to cease advertising and thereby, lose $12,000 annually seems to me rather strange and we're willing to take the chance that they will not close down their total advertising. And finally, in conclusion, I submit that respondents would like this Court to do is turn Valentine upside down. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted well here --