Earl Warren: Number 505, National Association for the Advancement of Colored People et al., petitioners, versus Haldred Overstreet. Mr. Carter?
Robert L. Carter: I think that in order to get the issues in this case clear I would, if the Court will, I like to give the background facts in this case first. This case arose when the respondent who is the owner of a tropical market grocery and meat store in the Negro neighborhood in Savannah, Georgia. An employee of his, which was about a 15-year-old Negro boy, indicated to his mother that he had been hit by the proprietor of this store. A warrant was taken out for the respondent and he was interrogated and investigated by officers. The mother indicated that after she had made the complaint to the police that she received some threatening telephone calls as a the result that she got in touch with the local N.A.A.C.P. which was in Savannah. They had a meeting and had a circular out in which they indicated people to come to hear about this brutality by this man as a result of the meeting in which one of the defendants below, Mr. Law was the president of the local branch and a Reverend Jordan who was the vice president, attended. The branch decided that they would have picket around the store of the respondent. The testimony on the part of Law is that they put two on each corner around this -- around it. They were instructed to be peaceful and so forth and so on. As a result of this picketing which began on June 1 and lasted until an injunction was issued on June 22, this was suit for damage was brought against the local N.A.A.C.P. against the State N.A.A.C.P. against the two individuals and against a New York Corporation. The -- a word of damages by the jury on the basis of the facts was a $35 judgment -- $35,000 judgment. The ordinary damages against the -- all of the defendants and a $50,000 judgment of punitive damages are against all of the defendants. An appeal was taken through the Supreme Court of Georgia and it was affirmed as to all but the Georgia State Conference. We brought the case here alleging the -- there was a violation of various rights of peaceful picketing and this Court granted certiorari and regrettably limited certiorari to the validity of the judgment as against the New York Corporation. That is the issue which is before the Court at the present time. That is whether the judgment of $85,000 which the New York Corporation is liable is valid and is attainable. We think that the question on that if the Court pleases is not closed. There was no evidence in this record.
Hugo L. Black: Do you think what?
Robert L. Carter: -- that the question is not a closed one. We think that the -- there's no evidence in this record to show in any respect that the New York Corporation was present or was anyway responsible or condoned or affirmed or benefit or any of the rational upon which it's responsibility could be established for these acts that this has not been shown at all.
Potter Stewart: Mr. Carter was there any question of service on the jurisdiction over this petitioner?
Robert L. Carter: I beg your pardon sir.
Potter Stewart: Is there any question in this case of whether or not the Court had jurisdiction over this petitioner that is whether or not the service upon them was a profit.
Robert L. Carter: We -- no. We don't think -- quite frankly we don't think that question is here.
Potter Stewart: Now, I should think that they included in the question to which the grant of certiorari was limited.
Robert L. Carter: The problem --
Potter Stewart: Now, what if that is -- that question or whether or not there was any issue made or whether or not they were properly in the Court.
Robert L. Carter: We filed a demurrer alleging that -- that there was no the jurisdiction so far as the petitioner as the New York Corporation was concerned in terms of service and so forth. The demurrer -- demurrers were overruled at that time and we therefore -- we then filed an answer and went on to trial raising the various issues as for the general jurisdiction of contesting the power of the -- contesting the issue on the merits so that although we did not give up the issue of jurisdiction we didn't -- at that time we did a question to the --
William O. Douglas: Is the -- liability of the Savannah branch here at all?
Robert L. Carter: No sir. The Court did not review that. The Court limited liability to the New York Corporation.
William J. Brennan, Jr.: Mr. Carter what -- is the basis of liability of the New York Corporation respondeat superior?
Robert L. Carter: Well, I think that this is the only -- I think that this is the theory of the plaintiff's case, I mean the respondent here but the plaintiff below. The theory of the case in which they attempted to prove on judgment that Mr. Law by having the -- who was the president of the local branch, and of the Georgia State group.
William J. Brennan, Jr.: Now, may I ask a question sir.
Robert L. Carter: Sure.
William J. Brennan, Jr.: I don't think I'm too familiar with the N.A.A.C.P. Structure, is that branch -- what is a, what is a branch?
Robert L. Carter: Well, the New York -- there's a -- a New York Corporation which is a membership corporation organizing the laws in the State of New York.
William J. Brennan, Jr.: Non profitable, is it?
Robert L. Carter: Yes sir.
William J. Brennan, Jr.: Yes.
Robert L. Carter: The -- we charter local unions and they are various kinds and various names but a local union in the particular city is an unincorporated association. It is called a branch that is made up of adult people who come together and it has been 50 or more persons and they come together in the local union and they are carrying on activities locally in the name of the association. That's unincorporated association.
William O. Douglas: Is this the Georgia law we have to apply over this agency?
Robert L. Carter: The -- as far as we know I -- our view is that Georgia law would be applicable but that under any circumstances that the Georgia as we read Georgia cases that Georgia has not applied its own law to this instance, that it is departed from its own law but -- law in regard to this. But our view is that the -- that under any standard that this is the denial of constitutional due process because of the fact that there has been no showing, there's no evidentiary showing that the New York Corporation was in any way present – present under any -- under any analysis or under any standard of law even Georgia or otherwise.
William O. Douglas: What is the relationship between the Savannah branch and the institution?
Robert L. Carter: The New York Corporation, it's a union, it's an affiliate of the New York Corporation.
William O. Douglas: What is it? What is the form of the affiliation?
Robert L. Carter: The form of the affiliation is a charter -- rendered the charter by dues or a member who pays dues into the local organization and by virtue of that becoming member of the national -- of the national corporation. There is a -- they have their own offices pursuant to constitutional bylaws at their own offices that they have their own offices. They have --
William O. Douglas: Appointed by the --
Robert L. Carter: No sir. They're elected by the -- in the local -- by the people locally we have no – appoint in regard to this and they have jurisdiction to operate and function within the territorial limits with which they charter -- carries on it.
Byron R. White: The majority would now be a [Inaudible]
Robert L. Carter: Well, we have the -- I -- let me point out quite clearly that all of these questions that are raised in regard to our relationship none of it is in the record at all and not -- nothing on this question was -- was presented by the plaintiff in the record in this case. The answer to your question, the New York Corporation has -- general power for example we do make the general national policy which is binding on all of our constituent unions.
Byron R. White: There are some specific action of the local -- doesn't agree, you don't agree with. If contrary to your policy you have some authority --
Robert L. Carter: That's right, that's precisely right. This is a question of basic policy. We -- in this particular instance, the general purposes of our local unions with the N.A.A.C.P. is to advance the group interest of Negroes and to prove the status of the Negroes so this -- so basically this is solved. We find that a union is not operating like that -- to that extent or is going contrary to some national policy that we feel is -- advances that interest. For example a unit would indicate that their favorite segregation for example, our view would be on that this would be contrary to advancing group interest and we would feel that this would be something that would be -- that we would be able to take measures, but in the normal these units are semi autonomous units. They function not with locally in regard to matters of concern to them at the local level and we do not really come in contact with them with regard to --
Speaker: Do they -- do they have funds of their own?
Robert L. Carter: Yes sir. They have funds of their own. They have a basic membership for it that they raised and that that is divided between us and then they may of course locally raise money or have fairs in raising money. They have their own treasure -- treasury --
Speaker: That I assume in this case the Savannah branch hasn't got funds with respondents, this judgment with that fund.
Robert L. Carter: Well I'm – on that Mr. Justice Harlan I can't tell and I might as well be very frank to the Court. I think we put -- place that -- put that in our brief. The probability is and insofar as the response to the judgment is concerned in this case that the New York Corporation, the Savannah branch and the other people are held responsible, the New York Corporation will be required to pay for it, pay for it at the practical matter and an organizational matter. But this of course, there is a difference between whether we have to do it as a practical matter whether we have a legal responsibility. We don't feel there is any legal responsibility for us under the circumstances of this case, but since the judgment below would in effect mean and that there would be no Savannah branch and the individual defendants would be liable. I think that the national corporation would have to take some responsibility in terms of sudden --
Speaker: That the judgment is not been satisfied with the Savannah branch.
Robert L. Carter: That's right sir, it has not been satisfied.
William J. Brennan, Jr.: Mr. Carter, the corporation has branch offices ordinarily and ordinarily industrial corporation commercially and I gather what you're saying though is this that the Savannah branch is not anything comparable to the branch office of an ordinary corporation.
Robert L. Carter: Precisely.
William J. Brennan, Jr.: Well now -- now suppose -- suppose we had a situation where the act -- which was actually a branch office of a corporation and the manager of that branch office had done the things that were found here, you would have no trouble I suppose or would you in saying that a judgment which reached the parent -- the corporation itself would be consistent with our ordinary principles of respondeat superior, would you?
Robert L. Carter: I wouldn't have -- I wouldn't have any trouble controlling --
William J. Brennan, Jr.: What concerns me is on this record as you said yourself you've been telling us things that do not appear in the record to show that this is not that kind of situation would not -- that have been a burden of the defense?
Robert L. Carter: I don't think so Your Honor.
William J. Brennan, Jr.: You think not?
Robert L. Carter: I think that --
William J. Brennan, Jr.: I mean how -- how is the plaintiff to know these facts and this unique relationship between the Savannah branch and the New York Corporation.
Robert L. Carter: Well, I think Your Honor that the plaintiff should made an allegation and is charging an agency and the respondeat superior, it seems to me that he's under an obligation to prove it. One of the matters which he could put -- he could have prove it or could have demonstrated it or could have attempted to have shown was by virtue of having something that the constitution and bylaws of the local corporation and its connection with --
William J. Brennan, Jr.: Well that's part -- for example let me think -- I think in fact my other illustrations, as far as the General Motors.
Robert L. Carter: General Motors?
William J. Brennan, Jr.: General Motors, they have a branch office in Atlanta, Georgia and something -- the management does something, and a lawsuit is brought against General Motors Corporation. There is an allegation that the branch -- the branch of General Motors and he was the manager of that branch, does the plaintiff have to go on and establish it ordinarily, would he that indeed that's what this fellow was. He'd have to prove that he was the manager of the branch office that this was the branch set up by General Motors in Atlanta and so forth?
Robert L. Carter: Well, I think that what he would have to establish that he's going to establish the question of the agency he would have to establish that, and you have to. The Court -- the record is going to have to show that there is some nexus between that branch and whatever you call it and --
Speaker: And the plaintiff's burden is required. I remember what's -- does it follow from that -- what you're saying is this really a counsel illegal case, that there's just no evidence which ties Savannah branch to the New York Corporation?
Robert L. Carter: Insofar as responsibility for these actions and that in fact -- we have a branch in the sense that you now use the term in Georgia, but that branch is in Atlanta. It has an office that we -- that the national corporation maintains and we have employees that we pay and that office is in Atlanta, Georgia where we have people who are on the payroll of the national office.
Byron R. White: Don't you have -- yes, but don't you have to qualify to do business in other States solely on the basis of your branches?
Robert L. Carter: We qualify -- no sir. We qualify to do business interstate and as you know that question is --
Byron R. White: Does it inquire you qualify?
Robert L. Carter: What we require to qualify is to rest to file our certificate of -- the corporation (Voice Overlap)
Byron R. White: I understand that -- I understand what the requirements are and what activity of yours -- what business do you do in the State when the only business is -- or when the only thing that's going on there is series of branches?
Robert L. Carter: Well, the point Your Honor is that in our judgment we need to have -- have always felt that we did not – that we were not present for these purposes but it was easier for us to comply with the law than to be involved in a series of litigation, like N.A.A.C.P. versus Alabama and so forth. So that what we did was that we complied in most of these states by filing articles of incorporation and designated an agent of sorts although I think that sometimes ago we've indicated that we did not believe that we were required to do so. Now we do believe that we're required to do so in the place where we maintain an office, a branch office in the sense that Mr. Justice Brennan indicated, but not where all we have on local affiliate communities whether the -- as a matter of fact because I said it was easier for us because we believe --
Speaker: Do you share the -- do you share the money that's raised by the branches?
Robert L. Carter: Oh yes. We -- the money on membership dues 50% -- half of the basic membership dues is sent to the national office. The other half is kept local. There are other contracted digits they had as well.
William O. Douglas: At page 106 of the record the Supreme Court of Georgia said that Law present in the Savannah branch called a mass meeting of N.A.A.C.P., is that correct?
Robert L. Carter: Where he -- he called a mass meeting Your Honor of the Savannah branch of the N.A.A.C.P.
William O. Douglas: That he says that the N.A.A.C.P and of the Savannah branch.
Robert L. Carter: That the law -- there's no testimony that Law in the record that Law did that and certainly these are the facts on which the respondent attempts to show because of the circulars that N.A.A.C.P. mass meeting. Therefore, the reasoning was that this was the New York Corporation I suppose, but the fact of the matter is that the only thing that Law could do is to call a meeting for Savannah branch because that was the only thing that was there.
William O. Douglas: On page 108, they said if Law originally acted without authority it assumed to act for them that is N.A.A.C.P. they have the option to repudiate or ratify that they were required to do one or the other, but whereas here they never repudiated the act. They are deemed to have it permanent.
Robert L. Carter: Well I --
William O. Douglas: What were the effects with respect to that?
Robert L. Carter: The testimony shows that the New York Corporation did not know either about the picketing or about anything that was going on until after the injunction was issued. The injunction was issued and suit had commenced. The New York Corporation was then notified about the fact that this was going on. And I didn't -- it is the position of the -- currently adopted by the Court and the position of the respondent and that the New York Corporation was required to come into court and disavow. We think that -- we think that is error. The question that we -- we don't believe that we were required at that time to come into court and tell the court or tell the respondent in court in the suit -- lawsuit that we disavow the local branch and we had no responsibility for it because it seems to us that what would really be having then is that we prejudice, the position of the local branch in regard to the case. I think that the disavowment or the opportunity to affirm or disavow has to occur before the lawsuit has occurred and I don't believe that anyone can pick up the fact that we didn't take the position in the courtroom after the lawsuit itself as being the basis for it and this is what -- in our -- this is where in our judgment the Supreme Court of Georgia was in error in trying to fix that instead of -- as far as we were concerned.
Potter Stewart: I do not probably understand what you just said Mr. Carter. Do you mean that you don't think you're -- you're required to do that as a matter of Georgia law or do you mean that if the Georgia law does require you to do that it would be unconstitutional?
Robert L. Carter: Well, we don't believe that we were required to do that as a matter of Georgia law. We don't believe that -- we don't -- we believe that the question of affirming was disavowed. I -- that the principle therefore the responsibility is a fact which has to occur before the litigation commencement. Now, we --
Potter Stewart: That the Supreme Court of Georgia seems to say that the Georgia law is required.
Robert L. Carter: The Supreme Court of Georgia -- we don't read that that is a -- is saying that because what the Supreme Court of Georgia had said it in terms of interpreting the record here. The Supreme Court of Georgia apparently reaches the conclusion with regard to the record that we had an opportunity. Now we think it's an error that we had an opportunity before the lawsuit began. If this is what the Supreme Court of Georgia is saying we do think that this is a violation of the constitution.
Potter Stewart: Now what part of the constitution --
Robert L. Carter: On the basis of the fact that I think that what occurs is that we are now in a position in regard to our units where we require the principles as charged with a liability where we're required to come in court and prejudice the rights of our affiliates in a particular litigation by making a confession of some kind in court in regard to the amount of resort.
Potter Stewart: Well aren't you -- if these people are your agents I can understand that position, but if they're not your agents what's the -- which is your claim here now and has to be on the issue presented here to us and if they're not your agents what's wrong with requiring that you say so?
Robert L. Carter: Well, if they are not -- or if they are our agents or if they're not our agents our theory is that the burden is on the plaintiff to establish his case. The plaintiff it seems to me has to come into a court and he makes -- he wants damages and he says that these people have done something wrong. I think that he has to establish -- he is required to make the establishment before. The respondent has any duty of going forward or making any explanation with --
Potter Stewart: Well now, Mr. Carter insofar as this case involves simply the law of agency in the state of Georgia or insofar as it involves simply the sufficiency of the evidence to support factual determination of the agency and therefore to support the Georgia law of respondeat superior, all those issues are no proper business for this Court, aren't they? I think you recognize that because you put this -- you put the question before this Court in terms of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and to that extent isn't the suggestion of my Brother Brennan correct, that there has to be a showing of complete absence of any evidence. I mean you have to show that you think that it's just as arbitrary to take your money and to satisfy this judgment as it would be to take, let's say the money of the -- of the Chrysler Motor Car Corporation --
Robert L. Carter: Well, we think that's -- we think that's --
Potter Stewart: That you have absolutely no connection with these -- with the people who are responsible for this tort, the State tort.
Robert L. Carter: Well we think that that's -- we think Justice Stewart that's what the records reveal.
Potter Stewart: So we're not really concerned here, can't we with the state law of agency or the state that are -- or the sufficiency of the evidence because those are matters of -- for the state courts which we have no business.
Robert L. Carter: That's right. The reason for the -- we have raised in our brief on page 17 we -- and beyond we are showing that we read the law that there has been a complete departure from the rules established in Georgia and we think as a matter of fact that this may raise some question of equal protection. But our theory is about this cases that there is no evidence, there is no evidence in this record that would connect us to this case and therefore the judgment is arbitrary and capricious and as a matter of law we said the -- this judgment and this question should never have gone to the jury and it should have been ruled as a matter of law that the New York Corporation was not present and is not responsible.
Potter Stewart: As a matter of constitutional law?
Robert L. Carter: That's right. And under these circumstances we --
Hugo L. Black: Mr. Carter I'd like to ask you a question.
Robert L. Carter: Yes sir.
Hugo L. Black: Is your organization set up something right to the terminal of this where they have take for instance that was a suit against the law [Inaudible] and the claim was made that the head organization was not liable for what happened in their local organization. Are you setting up the claim that you're not liable? And what is the difference between your membership so far as your home office is concerned, your local membership and the -- that of [Inaudible] paternal organization?
Robert L. Carter: Well, I'm not sure Mr. Justice Black I can answer that. I can tell you what - I can tell you what I think --
Hugo L. Black: I'll tell you why I'm asking. I haven't been able to find the case. But many years ago there's a case against the Loyal Order of Moose that they set up that they were -- the head office was not liable for a death that was caused by an initiation. The judgment was rendered and that went all the way up to the Supreme Court of the State and then came to this Court later on. And this Court held that the other state was bound to recognize the judgment under the Full Faith and Credit Clause. I do not recall how much it has to do with this but it seems to me that it's in the realm of the area, general area, which you're arguing this --
Robert L. Carter: Well I think Mr. Justice Black that I'm not claiming here that under no circumstances can a case be made whether the New York Corporation would have responsibility for some act that's done and carried out locally. I am saying that there was no evidence that there was a nexus between us and these local activities.
Hugo L. Black: Is that the sum total of your claim?
Robert L. Carter: Yes sir. That there is no --
Hugo L. Black: That the burden is on – should have been put on the plaintiff by the State. The State is the one who has put on the burden isn't it?
Robert L. Carter: The claimant, the plaintiff is the one who has to prove the case and has to present evidence to show the responsibility and this is -- this is the -- as I understand the law that this is what --
Hugo L. Black: Well that's not -- that's not the -- is that the law of Georgia?
Robert L. Carter: That is the law of Georgia, has been the law of Georgia as far as we know until (Voice Overlap)
Hugo L. Black: That they sustained this judgment.
Robert L. Carter: They sustained -- they sustained this judgment, yes sir. They have sustained this judgment, but we think that in sustaining this judgment they have departed from basic due process requirements.
Hugo L. Black: But your basis here is that the burden -- your basis that the burden constitutionally according to the federal constitution has to be put on the plaintiff?
Robert L. Carter: Well, our basic claim is that this is a case that comes within the Thompson versus Louisville case. That there isn't --
Hugo L. Black: Because there's no evidence or proof?
Robert L. Carter: That's right sir.
Hugo L. Black: But there still remains -- suppose the States says we don't require anymore evidence and the fact that this is a number of -- it is -- that the group associated with the national organization and if they want to put it up that's the defense [Inaudible].
Robert L. Carter: Well I think --
Hugo L. Black: Would you say that is unconstitutional, is that is?
Robert L. Carter: Yes sir. I think that's an arbitrary rule under -- under those circumstances.
William J. Brennan, Jr.: [Inaudible] they got the man place another, is that a branch law or is the law -- now, he testified to a number of things indicating and pretty much what you have told us you know, was the relationship between the branch and the parent corporation. As I remember the such things any part of the funds they've collected and they go back. He said that policy is made of the national conventions and that sort of thing and we have to adhere to the policy. Now why is it that you suggest that that under the Georgia rule accepting what you have said to be the Georgia rule namely that the plaintiff has the burden of proving this agency, why do you suggest that the Georgia courts could not as a matter of Georgia law accept this as sufficient evidence to prove agencies.
Robert L. Carter: Well because of two things. One, Mr. Law testified that the New York Corporation didn't know anything about what was going on that's in the record. They weren't notified. They knew nothing about it until after the suit was filed. This is --
William O. Douglas: Does any of that --
Robert L. Carter: This is in -- in the record itself. The other point that we raised in regard to this --
William J. Brennan, Jr.: Well Mr. Carter, may I ask you, test is to that -- it isn't -- the test is of agency would not deal with it whether the New York Corporation knew of these particular events. The test of agency is whether the actor, here, Mr. Law was in fact agent and that doesn't require knowledge of you folks in New York, does it of what he was doing.
Robert L. Carter: Well that's true. That maybe true but what you're talking about now is that sort of -- is a general agency by virtue of the fact that the management is involved in the organization. Therefore, we have some general responsibility and under these circumstances our general responsibility we suggest to the Court in terms of due process, the only way on which the Savannah and Mr. Law were held liable was on the basis of the fact that there were acts which were violent acts which violated the laws that there were threats and intimidation and therefore that -- it would have to be shown specifically that the New York Corporation, the principle would be involved in giving specific ratification or firm acclamation and a pull of those specific acts because otherwise the one is -- it is - it is all for violation and there are arguments (Voice Overlap)
William O. Douglas: That seems to be within the theory of the complainants. I really -- that's amended in paragraph 14 on page 15 says that the defendant W. W. Law in using such tactics was then committed before the service of the N.A.A.C.P.
Robert L. Carter: Yes sir. These are the allegations that has been made that he was acting for the New York Corporation and so forth but as I try to indicate before there has been no showing of the -- it was the acting clause and if you take the basis on which responsibility has been held since the illegal acts and acts of violence I think that we have to indicate that the New York Corporation in carrying out a general policy of who to condone ourselves before this -- we could be held liable under this circumstances.
William J. Brennan, Jr.: Well that's really a question now assuming agency, you'd say there's no proof that what he did was within the scope of his authority as agent, is that it?
Robert L. Carter: Correct.
William J. Brennan, Jr.: But now you're -- now I gather that your position is that the plaintiff's burden is both, one, to prove agency and also that the particular acts within the scope his authority or if not were ratified by the New York Corporation.
Robert L. Carter: Under -- if you go as far as you've indicated that the Georgia can go and that is that the agency can be established merely by the fact that the man is -- that we have an affiliate that the man is a member of the organization. That would be --
William J. Brennan, Jr.: But suppose this had been the manager of your Atlanta branch who would led this -- this operation and you knew nothing about it in New York.
Robert L. Carter: Well, if the manager of our Atlanta branch was being -- would be very definitely be or directly connected with us we are paying him, we are employing him, he is as a matter of fact and the ordinary rules he would be acting for us on the circumstances because he has a direct -- we give him orders. We are able to tell him what to do and what not to do.
William J. Brennan, Jr.: Well, even to the extent you mean of acting for you, again, that he had led this picket line and assuming it was violence on the picket line. You'd have no questions then on reliability of the New York Corporation or those acts.
Robert L. Carter: Well, let me say -- can we say this Mr. Justice Brennan. I review it would have -- if the Savannah branch I mean if this man that you indicate --
William J. Brennan, Jr.: In Atlanta.
Robert L. Carter: In Atlanta were to come out and were to be on the picket line and violence and so forth, it were established one that he was employed by us and so forth and so on, we would then be under an obligation it seems to me at that point to establish in the records, specifically in the record that we had nothing to do with this or to attempt to disprove his association and that he was operating outside the scope of --
William J. Brennan, Jr.: But you -- on the acts. If it's -- we're going to see that there's any such burden on you affirmatively to establish that in the case of this kind of branch.
Robert L. Carter: No sir.
Byron R. White: Even though this law and the evidence there assuming that the burden is carrying out any N.A.A.C.P. policies and that thing.
Robert L. Carter: Yes, but they assumed they're carrying out the policy of the local level.
Byron R. White: There is -- but it's your policy that appearing here throughout.
Robert L. Carter: There -- there is --
Byron R. White: Subject to your control.
Robert L. Carter: It is not subject to our control.
Byron R. White: It is totally [Inaudible] subject to your control, that they went in to something that was contrary to your policy there.
Robert L. Carter: Contrary to our basic policy. And one of the basic -- basic policies, yes. But I have attempted to tell - to say to you that generally that they have local aims and objectives which they presumed which we have nothing to do with it in terms of controlling because our general policy is in terms of the status of Negroes and this is what our business is, on the national level.
Byron R. White: Yes, I think that the -- that and certainly that it was considerably a counsel by the national in terms of what this local operations up to.
Robert L. Carter: I don't think that's established in the record. I think what is shown is that we have an annual convention and that the annual convention, he and other people go to our conventions which are held annually and they talk about various things about the -- that ought to be done in a national effort so that our policy in favor of the voting rights field, always in favor of their civil rights bill. We wanted [Inaudible] but there is no showing that he went down with counsel to do any of the things that are here.
Earl Warren: We'll recess.


Warren E. Burger: -- speak whenever you are ready.
Leonard B. Boudin: Thank you, Your Honor. Mr. Chief Justice, and may please the Court. I indicated yesterday three policy considerations why I thought programs of this kind, requiring an advocacy and membership and advocating the organizations were not dangerous, were not the less restrictive means that might be used. I would add one fourth item, that is the great question as to whether there really is predictability in determining whether people, who have been members of the organizations like this are advocating, will turn out actually after becoming members of the Bar to be in any way deleterious or delinquent in their duties. But these four considerations, which I have mentioned, have led me to two conclusions which I submit to the Court. The first is whether assuming there should be any screening program of any kind, and whether there shouldn’t be certain safeguards in order not to have the widespread, wide ranging inquiry and I suggest two safeguards to the Court, if we are to continue with a screening program. The first is that the organization concerning, which an inquiry is made, is an organization which has been found, judicially found, as in Konigsberg to be a organization engaging in unlawful activities. This is, of course, in wide contrast to the question involved in this case where the questions are wide ranging and vague. And the second consideration I suggest to the Court is that there should be some foundation, some reason to believe before this kind of inquiry is made that the individual involved has adhered to participate in the unlawful activities of such an organization. But, of course, our principal point having suggested this middle ground, a ground that we do not -- that we prefer not to have as against the next one, is the question of whether there should be any screening program at all. We suggest that in the case of lawyers, their peculiar susceptibility to the controls of the courts makes the alternative the least less respective being preferable to the question of a screening program with the dangers that I have indicated.
Potter Stewart: You suggest there should be no screening program at all. I don’t understand. There should be Bar Examinations and you said (Voice Overlap).
Leonard B. Boudin: Oh yes, of course. I meant the questions of the kind with which we are dealing here. I don’t need Bar Examinations to be excluded obviously. And the fourth point, Your Honors, which I am suggesting as available as very strong, but less restrictive in this sense, an effect upon First Amendment rights are these. The lawyer himself is subject as an officer of the court as well as his clients to the contempt power of the judges for whatever that he may do in the court room or with respect to the cases. The lawyer alone is subject to the very powerful disciplinary proceedings ending in the dreaded disbarment which is ruinous. The lawyer in special cases is subject to, of course, a malpractice suit by his client and finally, as we approach the area of criminal activities with which we are most concerned, the lawyer is, of course, subject to criminal prosecution. This would be my general observation, unrelated necessarily to the peculiar facts in our case. But in our case, in the circumstances of this case, we think there is neither obstruction of the process of a kind that was found by the court to exist in Konigsberg and Anastaplo, nor a substantial state interest requiring this petitioner to answer these questions. And I submit that because as I indicated to Your Honors in my original presentation, all of the specific questions that were put to the petitioner, including those that were involved in Konigsberg and Anastaplo were answered by him and there was not the slightest indication of the committee's report that he would not have answered any other specific questions. It was the general ones to which he took exception. And he took exception and I think there is no question as a matter of basic principle because the committee had before it his answers to many of these questions, only slightly different worded, that he had made in the New York Bar Examinations. Obviously, the change in position with due to the notoriety that was given to our then pending Wistrik (ph) case which Professor Dawson will argue. So the second point with respect to substantial state interest, whatever maybe the theoretical interest of a state, is it not significant that in this case no explanation of a kind that was given in Konigsberg by the state based on a statute or in Anastaplo based upon a rule of the Court, namely the concern about the nature of the organization is offered in the state's brief. The state's brief gives a completely different theory, a wide ranging theory as to why these questions are asked. And it says three things; we wanted to know; two, what organization’s he was a member of, so we can ask the other members of the organization whether they might not have some information derogatory to the plaintiff. And this is a kind of a census, and I will tell you that that would have been to say to the petitioner name every single person you have ever heard of, you ever knew in your life. I submit that, that is not, on our own brief, a substantial interest of the state in this case. Now with respect to the Fifth Amendment, which is the second point, the point has been made by Mr. Baird. I will not repeat what he said, except to add two things that he did not mention. The first is that we are dealing here with the area of political inquiry, whatever it may be called, and we have to remember that in the question of, this questions of this kind, bearing in mind the historic origins of the privilege which I certainly should not teach the Court that it rested in religious and political persecutions. That this is a peculiarly good case, appropriate case whatever they'd be in other situations for the association of the privilege. And the second is a point which was made, as I indicated yesterday at Baggett against Bullitt that where questions are vague, they present an appropriate reason for saving the privilege because of a danger of a perjury prosecution. Even though generally speaking, obviously, the refusal to answer a specific on the ground that it might invite a perjury prosecution is not a proper defense. And I last on this point might refer to in addition to the cases that I mentioned to the opinion of the Court of Appeals for district of Columbia circuit which I failed to mention in my brief which is at 240, F2nd, 401 in which the Chief Justice participated as a member of a per curium court that dealt with this problem of the danger of perjury prosecution in connection with a vague question. It was a contempt of congress case, Your Honor as the Chief Justice I remember involving Harvey O'Connor. This I think, Your honor, is subject to a few answers is my submission.
Warren E. Burger: Thank you, Mr. Boudin. Mr. Macklin, you may proceed whenever you are ready.
Robert D. Macklin: Mr. Chief Justice and may I please the Court. I think that at the outset, we would like to again emphasize that we feel that this case should be considered with direct reference to the circumstances of the case. Now you recall that the petitioner refused to answer questions in the Supreme Court of Ohio application form for admission to the Bar on the privilege of the Fifth Amendment, that the answer might tend to incriminate him. On the face of his application, this was the sole basis for his refusal. We think it’s significant, but after this fact, when he sought and consulted with counsel, he then began to talk in terms of the protections of the First and the Fifth Amendment. Then by the process of briefs and arguments, we now find ourselves confronted with an attack on the action of the Supreme Court of Ohio is almost entirely related to the First Amendment rights and the basic issue as first raised by the petitioner is how relegated on minor independent ground. We do not question the right of the petitioner to argue this case on any reasonable relevant grounds, but we do protest that as there is a kind of transfer of emphasis which detracts from the focal point of the circumstances which resulted in denying the applicant admission to the Ohio Bar Examination. In this instance, the petitioner's assertion of the Fifth Amendment privilege to the question of whether or not he had been or presently was a member of any organization which advocates the overthrow of the government of the United States by force and to the question asking for a listing of all clubs, societies, or organizations of which he had been a member, clearly have raised in the minds of the Bar examiners questions, inferences, suspicions that ought to be dispelled before they, in good faith, might recommend him on the basis of his character, his reputation, and his moral character to the Supreme Court.
Potter Stewart: Mr. Macklin, before you proceed, did I understand from your preliminary remarks that it's your claim that the bar examiners were not given an opportunity to consider the First Amendment claim at all, that they were confronted only with the Fifth Amendment claim?
Robert D. Macklin: No, Mr. Justice Stewart, what I am really saying is that, on the basis of the application itself, only the Fifth Amendment was raised. Now it's quite true that in the course of letters, communications thereafter, the Fifth Amendment attack was raised.
Potter Stewart: Then the First Amendment attacks.
Robert D. Macklin: Yes, I am sorry, the First Amendment.
Potter Stewart: And in time for the Bar examiners to consider it and --
Robert D. Macklin: I believe that their consideration was based almost exclusively on the fact that on the face of the petition, on the face of the application, there was this single reference to the Fifth Amendment privilege which precluded them from further action.
Potter Stewart: Are you suggesting something in the nature of the failure to exhaust his administrative processes?
Robert D. Macklin: No, I am not, Mr. Chief Justice. I am trying to establish, if I can, the fundamental reason for the rejection, rather the failure of recommendation by the Bar examiners which we think establishes the basis of the issue in this particular case. One of the most prominent of the possibilities raised by the petitioner's review is certainly in the lines of attorneys and examiners, a specter at least, perjury. The petitioner answered similar questions in his application for admission to the New York Bar without any apparent equivocation qualification. Potential for incrementation in responding to similar questions on the Ohio questionnaire, certainly at the very least, raises a kind of unresolved ambiguity in the minds of the examiners. If among those ambiguities, there is the specter of perjury certainly, however, inimical generally, it is something that goes to the very heart of the moral character in the person of an attorney. Any propensity therefore we feel to be an essential element of disqualification for the Bar before or after admission. The refusal of the petitioner to answer on the particular grounds stated, not only raise the question, but it precluded the answer. The Bar commissioners or the Bar committee rather, under the clear direction of this Court as provided in the second Konigsberg case and in the Anastaplo case, based their denial and said so that the refusal to answer had obstructed a full investigation, and we urge that your opinion relate to this particular and what we consider to be a very single and clear issue. The problem of whether or not the Supreme Court of Ohio had the constitutional right to raise these particular questions is, however, relevant to the attack of the opposing counsel. In Ohio, we feel very strongly that inquiry into political belief, where that belief may encompass illegal or criminal acts to bring about the overthrow of the government of the United States by force is most emphatically appropriate to the qualifications of an attorney. And we think of this to be of vital importance in present circumstances that the agencies, the agents, the instrumentalities of state and federal government are being subjected or threatened by physical violence from groups which are dedicated to the force of the law (Inaudible), whether they call it the government of the United States, a police department, or the more general vernacular, simply the establishment. Courts throughout the country, including our own Ohio Supreme Court have found it necessary to obtain the services of uniformed personnel to guard their persons and their lawful sessions.
Warren E. Burger: Mr. Macklin, had the applicant answered that question, no, with the other (Inaudible) answer to I think the question 13, about all clubs and organizations and the 7, all the organizations he had been in after he became a law student, would that have barred his taking the examination?
Robert D. Macklin: Mr. Chief Justice, if he had answered the one particular question, no, and then answered the other question on the basis of a Fifth Amendment privilege, I think it would still and probably resulted --
Warren E. Burger: Well, what if he answered those questions, that I can't recall all of the organizations, I have been a member of?
Robert D. Macklin: Well then sir, I feel very strongly that this did not preclude the further questioning. I am sure that the bar examiner felt that by virtue of the Fifth Amendment, they were cut off from further investigation.
Warren E. Burger: It's a pretty difficult matter to remember all the organizations you have ever been a member of, isn't it?
Robert D. Macklin: I quite agree, sir.
Warren E. Burger: I suppose it's reasonable to think if a man can remember the organizations he joined in three years of his law school studies, but even there that there might not be absolute?
Robert D. Macklin: I -- Mr. Chief Justice, I quite agree with you. This is a question which is a difficult one, if you approach it word for word, but may I ask a rhetorical question, is it not within the scope of the law that the Supreme Court of Ohio may interpret and apply the responses to these questions liberally, justice and reason. I am quite certain this is what happened.
Warren E. Burger: The attack on these questions to the extent that it is made in any of these cases as on its there being over broad and that the question might be acceptable if it said list the names of the organizations you have belonged to the best of recollection or if it permitted that qualification.
Robert D. Macklin: I believe this is the way the Supreme Court interprets it, Your Honor.
Warren E. Burger: The Supreme Court of Ohio?
Robert D. Macklin: Yes, sir. It must be because I am virtually certain that within the history of this question, that no applicant has, or maybe some applicants, but very few applicants are able to recall totally every organization, club. I think that I may have neglected myself to indicate that I was a innocent duce 17;43 member of the Parent Teachers Association, but I believe that these are innocent oversights that the court has certainly not applied the very letter of the question itself.
Speaker: I suppose he had left two or three out, he could have been indicted for perjury, wouldn't he?
Robert D. Macklin: I think it would require an intent, Your Honor.
Speaker: Of what?
Robert D. Macklin: I think it would require a criminal intent which --
Speaker: Well, but he could have been indicted for perjury, couldn't he? They put you in, they found it out later and charged you him for perjury?
Robert D. Macklin: I would draft to prosecute the case where it was --
Speaker: I think every prosecutor would do this, but there are some prosecutor who have great zeal in certain direction?
Warren E. Burger: You are centering now I take it on the failure to answer question 12?
Speaker: This is one relating to associations and organizations. I am not exactly centering on it, Your Honor. I am hoping to cover the entire area of inquiry. We feel that where a lawyer is knowingly associated with the group dedicated to the forceful overthrow of the government, we consider it highly appropriate to inquire into whatever form his legal expertise will carry over into the interpretation of his beliefs which maybe exemplified by the aims and the purposes of the organization. If you were to offer advice, which could be construed as a condemnation of violence by a member of legal profession, it might not dissimulate rather than inhibit unlawful action. In this, I refer back to a comment made by the opposing counsel yesterday when he indicated that there must be an impact upon the client by virtue of the chilling effect upon an attorney or prospective attorney in belonging to organizations. I submit that there is an impact upon the client merely by virtue of the position of somebody who has been qualified for the practice of law. I submit to this Court, the association of an attorney in such an organization carries a much greater significance than the association of almost any other professional man. I think there are things that you do in your life which changes your status, and then therefore thereafter people look upon you by virtue of that status. I guess they are aware of that status. I think that there it is of no consequence to say that there are other means of punishing unprofessional conduct of an attorney because what I am concerned about here is it before the fact, problem of advocacy rather than an after aftereffect problem of retribution. Mere advocacy by one unqualified to advocate is a far different thing from the advocacy of one who is qualified and his qualifications are certified by a court who has supposedly tested these qualifications. Perhaps in the light of what you have heard me say you can understand a lack of comprehension. On page 9 of the petitioner's brief, He says the criterion of good moral character is inapplicable to political activities, even if they were to involve the commission of crime. My question to this Court is, is this good moral character a part of the lawyer? Isn't this Court, what this Court said in its majority decision in the second Konigsberg case that this Honorable Court said it would indeed be difficult to argue that belief firm enough to be carried over into advocacy to the use of the legal means to change the form of state or federal government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safe keeping of this country's legal and political institutions. I sincerely urge you to say it again. Thank you.
Leonard B. Boudin: Mr. Chief justice, may it appease the Court. Our reply brief sets forth very clearly that the petitioner raised the question of the non-pertinentcy of the questions, which is clearly in the First Amendment area. In his interview with the committee members and thereafter before he ever retained counsel, he is only a little more sophisticated than the young member of the bar, he asserted his First Amendment rights in a communication to the chairman of the committee. Secondly, the committee members did not have any impression from his having made reference to the Fifth Amendment, which in itself is a rather ambiguous term these days, since it can comprehend any aspect to process self-incrimination and so forth, and was not the particularized in its original answer, they do no conclusion with respect to bad character. Your Honors will recall my reference to Mr. Snodgrass, one of the two committee members who affirmatively found good character on the part of the petitioner, and the only concern was whether or not Konigsberg required that, because the question was put, it had to be answered, not without reaching out to the nature of the question. It's almost a case of (Inaudible) state. We put the question, Konigsberg might tell us, we have right to ask questions, you have got to answer this or you are obstructing. Now the reference to political activities referred to in my brief even involving crime, is a reference to the language in the decisions in which I won't take time to mention here -- quote to your Your Honor. In Cummings against Missouri, an Ex parte Garland and the discussion of those cases indent against West Virginia, which analyzed those cases. And those happened to be cases unlike the present situations involving activities. Here we are not dealing with activities, but we are dealing with advocacy. Now I submit to Your Honors that this problem, it was touched upon by friend here. It was mentioned yesterday by the Attorney of Arizona, with respect to what all of us know, questions of lawyer's behavior before courts is not a question of the kind to which these questions, these 1920, these 1950 questions were directed. They were concerned about the whole question of doctrine not about the behavior of lawyers in a particular case and it is a bootstrap argument to try to connect these two things which are not connected in the minds of the lawgivers. Those people who wrote these questions originally did not face the problems which all of us know exist today.
Potter Stewart: Who wrote these questions? The Supreme Court of Ohio, the Ohio Legislature or the Bar Examining Committee?
Leonard B. Boudin: The Bar Examining Committee presumably with the approval of the Ohio Supreme Court, but it is not a legislative inquiry. Now we are all concerned about the role of --
Warren E. Burger: Mr. Boudin, your time has expired. I have one question on that. Do you know how far back these questions go? Are these questions prepared for the 20 years ago or 2 or 3 years?
Leonard B. Boudin: Sorry, I didn't check. I don't know about Ohio, Your Honor. I know that the pattern was a 1950 pattern with some historical background in 1920s, perhaps Ohio can tell You Honor on that after checking it. Thank you.
Warren E. Burger: Thank you Mr. Boudin. Thank you Mr. Macklin. The case is submitted.