Earl Warren: Arthur Hamm, Jr., Petitioner, versus City of Rock Hill. Mr. Greenberg.
Jack Greenberg: Mr. Chief Justice, and may it please the Court. This case is here on writ of certiorari to the Supreme Court of South Carolina. A petitioner, Arthur Hamm Jr. was convicted of what the record calls “trespass” in the Recorder's Court of the City of Rock Hill, South Carolina and was sentenced to a hundred dollar fine or 30 days in jail on a record which he stipulated would cover him but which in fact was the record of the Reverend Ivory who was a cripple, who was in a wheelchair that Mr. Hamm was pushing the time of the events in question. Pending appeal, Reverend Ivory died and this case continues only in connection with Mr. Hamm. Generally speaking, the sit-in demonstration in which he engaged was a typical one quite like the scores of cases that have been brought to this Court and the perhaps 3000 cases that are now pending in state, trial and appellate courts, many awaiting the outcome of cases in this Court.
Speaker: Of that precise figure under (Inaudible)
Jack Greenberg: No it's not Your Honor but --
Speaker: (Inaudible)
Jack Greenberg: Well, I consulted counsel in the various states with whom I'm associated and I've compiled figures.
John M. Harlan: Is that figure (Inaudible) reasonably accurate?
Jack Greenberg: I think it's reasonably accurate. I think perhaps if anything there may be somewhat more because I may not know all the lawyers though I think I do.
William O. Douglas: What category of cases is that?
Jack Greenberg: This is -- these involve only sit-ins. This does not involve parades or --
William O. Douglas: Voting rights?
Jack Greenberg: -- picketing or voting rights or street demonstrations. I'm merely speaking about sit-ins that would come within the category of the kind of case we're presenting here today.
William J. Brennan, Jr.: Doesn't include, Mr. Greenberg, disorderly person conviction?
Jack Greenberg: Disorderly conduct? This would include breach of the peace and trespass for what I would call a sit-in, in other words sitting at a counter, standing and demanding food service of some sort.
Speaker: (Inaudible)
William J. Brennan, Jr.: The use of disorderly conduct statutes?
Jack Greenberg: This would include the Garner type situation as well, as the Peterson type situation. Both have been used against it and though the breach of the peace statutes very rapidly fell into disuse after Garner and only essentially trespass types statutes were used, but there are some breach of the peace.
William J. Brennan, Jr.: But the great number of them are where they abuse trespass statutes, is that it?
Jack Greenberg: The greatest number of trespass cases.
Potter Stewart: Most all of these cases date back to the --
Jack Greenberg: To 19 --
Potter Stewart: -- sit-ins in 1960?
Jack Greenberg: Almost all of them. There are now -- there are a few from Saint Augustine, Florida for example which was last year but -- most of these cases are like this case (Voice Overlap) --
Potter Stewart: (Voice Overlap) of 1960.
Jack Greenberg: 1960 vintage, yes.
William J. Brennan, Jr.: But they're all cases in which there are actually outstanding convictions, are they?
Jack Greenberg: No, some of the cases are being held just awaiting trial to see what was going to happen, but I would say most of them, almost all of them involved convictions that have been stayed at various levels who are in process and haven't been stayed but haven't -- go way up yet.
William J. Brennan, Jr.: But I'm just wondering, I know I'm anticipating your argument a little, but I wondered whether you would apply the same analysis to a conviction for disorderly conduct that you would for a conviction under trespass statute.
Jack Greenberg: Yes I would, providing that the facts were something that are covered by the Civil Rights Act of 1964. In other words, I would look at essentially what occurred not the type of reprising that was used against it.
Potter Stewart: Many of these cases wouldn't -- the record wouldn't show whether or not they were covered by the Civil Rights Act of 1964, would they?
Jack Greenberg: Well, perhaps not, but it think these record show and I would imagine that if the record tells anything at all about what happened there would be enough evidence to show that the facility is covered. As I will argue, if I have time, if a place is open to the public without any restriction, without any restriction against interstate travelers, in other words if its anything unlike the restaurants they had for a brief period of time after (Inaudible) and that said intrastate travelers only. We would submit open to the public includes intrastate travelers and it's under the Act, and I think the legislative history supports that. I think the plain language supports that. So if there is evidence that this is a food establishment open to the public, we would submit and strongly urge that it's covered.
Potter Stewart: That may very well be an arguable position but it's a much broader -- more extreme position than that taken by the Solicitor General last week as you realized.
Jack Greenberg: Well, I don't think the Solicitor General faced that particular issue. He was in a case on pleadings and on a record in which essentially the question of substantiality of food service was being mooted, but I don't know, that he would --
Potter Stewart: I don't know what he would do --
Jack Greenberg: -- not take that position yet.
Potter Stewart: -- but I still remember what he did -- say.
Jack Greenberg: Yes, but he would -- but he was arguing a particular problem. He was the defendant in the case, that he was in a case in which -- and the Hotel case comes into another section which doesn't involve this consideration.
William J. Brennan, Jr.: Well, Mr. Greenberg, do I correctly infer then that certainly in this first case, this is the hand isn't it?
Jack Greenberg: Yes.
William J. Brennan, Jr.: It may also be true I suppose the (Inaudible) There's nothing in the record of each -- of either is there, which affirmatively indicates a basis upon which one could conclude that these are covered establishments within --
Jack Greenberg: I would say yes. My argument is that as in this record there was a great deal of questioning of the manager of McCrory's which is an interstate chain that -- sixth largest chain in the country, sells 3000 items in the store as well, as the lunch counter. He said that he admitted Chinese and other Orientals and Indians and communists and in other words there was no restriction whatsoever as to the public and they offered to serve --
William J. Brennan, Jr.: Well, did he ever say that they offered to serve and in fact served -- or in fact served even --
Jack Greenberg: Yes.
William J. Brennan, Jr.: -- interstate travelers?
Jack Greenberg: He did not say that explicitly.
William J. Brennan, Jr.: And did he say anything at all about the quantity of food which moved in interstate --
Jack Greenberg: No.
William J. Brennan, Jr.: -- commerce which he served?
Jack Greenberg: No, he did not.
William J. Brennan, Jr.: That's true also, the (Inaudible) record, isn't it?
Jack Greenberg: That's correct.
William J. Brennan, Jr.: And your answer is that you don't need that in order to bring it within the Civil Rights Act?
Jack Greenberg: That's correct. The legislative history of the Act shows that at one point a substantiality provision was offered and the substantiality amendment was defeated. And Congressman Seller in speaking -- in opposition to the substantiality amendment argued that if this were incorporated into the Act, the Act would then not cover all establishments. That's the word he said. I can refer you to the page of the congressional record, and would not have the same coverage as the Acts of 30 states and the District of Columbia, I think. Anything else would be an anomalous result because if an interstate traveler is supposed to be protected, he would then have to stop in front of an establishment unless he were affirmatively asked not to come in and have so much conduct pretrial discovery of dimensions you might have an antitrust case. However, if a restaurant keeper wanted to so structure his business as to keep Negroes out, the Act does permit such an eccentric person with some difficulty to setup such a restaurant and running. There are food fad restaurants, vegetarian restaurants, the persons who have peculiar diets for reasons of health or reasons of religion and they all --
William J. Brennan, Jr.: You're not --
Jack Greenberg: (Voice Overlap)
William J. Brennan, Jr.: You're not asking --
Jack Greenberg: -- and they can run it.
William J. Brennan, Jr.: You're not asking us then to -- this is not an argument based -- appealing to judicial notice, is it?
Jack Greenberg: It is not an argument appealing to judicial notice. It is an argument based upon the terms of the statute, the statute by its language and by its intent and legislative history and by any sense of what a reasonable administration of such a law would be necessarily covers every place, except a place which a man has gone to some trouble to so structure in a way to exclude Negroes. And that would be possible but it would be difficult.
John M. Harlan: (Inaudible) before the Civil Rights Act was passed.
Jack Greenberg: Oh, yes!
John M. Harlan: So what you're suggesting now is on the premise that the Civil Rights Act has retroactive application?
Jack Greenberg: Oh, I would prefer not to use the word retroactive Mr. Justice Harlan, it can be phrased in that way. The punishment, if it is to occur will occur in the future the entire abatement doctrine of United States against Chambers and suggested by Mr. Justice Brennan the Bell case really says that the courts will decide the case on the basis of the law as it now stands. And we would say that the Civil Rights Act of 1964, in its matter of statutory interpretation, the common law of federal statutory interpretation and in a certain constitutional dimension removes from the states any power to continue with these proceedings. I will argue that.
Hugo L. Black: (Inaudible) you said to a certain extent a constitutional argument. How could it be other than a constitutional argument to say that Congress has power to abate cases which were perfectly constitutionally started for the Act if he has power abate them?Why does not -- to have raised a constitutional question?
Jack Greenberg: Well, it does. What I had intended to say was I was analogizing in -- on that part of my argument, this case, the United States against Chambers. And the Chambers case was a case in which the passage of the repeal amendment caused the abatement of prosecutions that were perfectly valid under a statute that existed at the time that those prosecutions were commenced. In fact the statute itself I don't believe was repealed. It was the constitutional amendment that removed the authority. Now, our argument is that since the formation of this republic, the Congress has had an extremely wide authority over the area of interstate commerce, and well-phrased in various ways in terms of congressional intent or congressional silence or in terms of other formulations, states have exercised power over such commerce and activities which affect such commerce. This always has been at the sufferance of the Congress. When the Congress acted at this time to take this matter in hand, it had in effect of constitutional dimension comparable to the effect of the repeal of the prohibition amendment. And we make the same argument in connection with the implementation of Section 5 of the Fourteenth Amendment that the Congress has now drawn certain lines. It has made certain definitions to which I would definitely view referred in your opinion in the Bell case Mr. Justice Black as one of the reasons why you thought the Fourteenth Amendment then did not apply. But Congress has now made certain definitions which were found objectionable and -- of the lack of which were found objectionable in that opinion and so now, the Fourteenth Amendment has taken hold of this area. And these are two expressions of Congress in an area of constitutional competence in which Congress can completely override the will of the states.
John M. Harlan: (Inaudible) taken hold in these cases, the Commerce Clause has taken hold.
Jack Greenberg: Well, I would submit the Fourteenth Amendment applies here too. Section 201 (d) (2) of the Act applies to state action and it defines state action in a way that is precisely what occurred in this case. If I may read it, “State action is -- refers to discrimination or segregation. If such discrimination or segregation is carried on under color of any custom or usage required or enforced by officials of the state”. Now, the record is replete here. This was a custom of segregation. This custom of segregation was being enforced by officials of the state, they were arresting the man. It was not the kind of state action for example that is -- of which might call of more elementary sort that appears in Section 202. And so that Congress has spoken to that. Again there's some legislative history on this point.
Arthur J. Goldberg: Mr. Greenberg --
John M. Harlan: And you (Inaudible)
Jack Greenberg: I think that it's entirely possible that the statute did not go to the full extent of the Section 5 powers, but nevertheless the statute went to the extent covered here. The statute covers costumer usage enforced by state officials and I would say that is by arrest and conviction in this case. I think quite possibly while Congress can state certain minimums, the Fourteenth Amendment in fact very well might go beyond this and this Court has declared and defined the Fourteenth Amendment frequently without particular congressional legislation.
William J. Brennan, Jr.: Well, Mr. Greenberg, it's still true that accepting that premise, the establishments that are covered are only those within the definition, are they not of (c) (d), serves or offers to serve interstate travelers to a substantial course of food which it served --
Jack Greenberg: That --
William J. Brennan, Jr.: -- so far there's move in commerce. It doesn't reach every restaurant. Only restaurants that satisfy that description, isn't that true?
Jack Greenberg: Or restaurants which come under the state action criterion. In other words, I imagine --
William J. Brennan, Jr.: Well, that might --
Jack Greenberg: -- might have a perfectly local place in which state action was being --
William J. Brennan, Jr.: That -- In other words the --
Jack Greenberg: -- of being used to maintain the (Voice Overlap) --
William J. Brennan, Jr.: (Voice Overlap)
Jack Greenberg: It might've been a Peterson or a Lombard type situation in a place that was designed and structured to keep Negroes out.
Potter Stewart: Then you don't need the statute at all, do you?
Jack Greenberg: No, but the statute to some extent is declaratory --
Speaker: You might need --
Potter Stewart: Something declaratory.
Jack Greenberg: You might need the statute -- you might need the statute, it's still not clear as to get an injunction to be served.
Potter Stewart: Well, maybe, but that's not this case, is it?
Jack Greenberg: No, no. But --
Potter Stewart: So, if Peterson (Voice Overlap) --
Jack Greenberg: -- this is (Voice Overlap) --
Potter Stewart: The peterson -- Peterson or a Lombard case well, then we don't need to talk about the statute at all, do we?
Jack Greenberg: Well, no, not in the case of criminal defense Your Honor.
Tom C. Clark: Do you take a different position what the counsel did last Monday?
Jack Greenberg: I don't think I take a different position Mr. Justice Clark. I think that counsel was arguing one part of the Act in a case in which the facts were set out by a complaint in which the United States was a defendant. I certainly don't think the United States has argued or suggested that our position is not correct. It just hasn't addressed itself to that --
John M. Harlan: (Inaudible) you disclaimed any reliance on the Fourteenth Amendment in those cases and it went further than that and argued the case in one instance on a record where it was stipulated that there was no state action.
Jack Greenberg: Well, but there was no arrest and conviction in that case. In my case, I come under the terms of the statute. We don't have to talk about the Fourteenth Amendment at this point, but we come under the terms of the statute because there was an arrest and conviction supporting a custom of segregation. In the McClung case, there was no arrest or conviction. He just filed an injunctive suit against the Attorney General. But I would assume if there were arrest and convictions that would be operative here. Now, I might say that there is legislative history on this point. Congressman Seller said -- seemed to indicate in a congressional record, it's not in our brief, on page 1463 of Volume 110.
John M. Harlan: (Inaudible)
Jack Greenberg: Page 1463, Volume 110 of the Daily Edition, that the type of situation I described here would be covered. Senator Humphrey on the other hand said he didn't know. This was -- this -- he said this type of situation was something that was yet before the courts and the Humphrey statement is on page 4684 of the same volume, but he didn't say it wasn't covered. He said it depended upon the definition of the Fourteenth Amendment. But I would submit that now that Congress has addressed itself to this area, the definition of the Fourteenth Amendment in terms of types of places covered, and types of state action limited in the statute makes perhaps a different result, I would submit, even for those justices who thought that prior to the Act there might not have been any cover.
John M. Harlan: (Inaudible)
Jack Greenberg: Volume 110.
John M. Harlan: And what is the -- you've given me the --
Jack Greenberg: They're both in the same volume.
John M. Harlan: 4684, what's the --
Jack Greenberg: Yes.
John M. Harlan: -- other one?
Jack Greenberg: The Seller statement is in 1463, those are both in the Daily Editions.
Hugo L. Black: On this point, if Fourteenth Amendment does not cover it, if standing by itself as was argued, how can Congress expand the Fourteenth Amendment --
Jack Greenberg: I don't think --
Hugo L. Black: -- by saying it does cover it, the court --
Jack Greenberg: Well, as I --
Hugo L. Black: -- make a state action out of a custom.
Jack Greenberg: I don't think that Congress has expanded the Fourteenth Amendment. At least as I understood some of the objections to Fourteenth Amendment coverage as such in some of the cases last term it was that Congress had not with precision drawn some lines as the types of establishment, types of businesses, types of professions, size of establishments and so forth.
Hugo L. Black: Why is it? I understood it --
Jack Greenberg: Well, I would have to defer to that.
Hugo L. Black: -- that the Fourteenth Amendment didn't cover it and it was stated as there was a statement, there were statements to the effect that Congress could do it much better probably, because it could draw necessarily lines. But I do not recall in the statement that said that Congress could do something which the Amendment, first section of the Amendment didn't authorize. Now, if we didn't touch on Section 5.
Jack Greenberg: Yes, well -- but my understanding and I would submit is that while the amendment has a broad and perhaps in some respects inchoate scope that that scope at least as to minimums can be established by certain definitions of the Congress.
Hugo L. Black: What do you mean by inchoate?
Jack Greenberg: Well, in some respects that it -- in other words it is not effective without congressional action. At least it's the certain places where there have been no definitions.
Hugo L. Black: You mean even under the first section or under the fifth section?
Jack Greenberg: Under the fifth section.
Hugo L. Black: Well, that that's the different point.
Jack Greenberg: Addition, I would like at the outset to briefly set forth the sum of the theories on which he relies and some of the facts. They went in to the store and Reverend Ivory made some purchases and then they went to the lunch counter, and they were asked by the manager to leave the lunch counter. One of our arguments which I don't believe I'll have time to present orally set forth at length in our brief is the man -- that the manager never did asked him to leave the premises. The warrant speaks in terms of leaving the counter. The statute, however speaks in terms of leaving the premises. I think this is an important point because they were welcome on the premises. They bought various items on the premises and they were later told they could go to a checkout counter and get a refund for the matters they bought on the premises. However, they never were actually asked to leave the premises except by a police officer later on.
William J. Brennan, Jr.: Vagueness argument?
Jack Greenberg: This is a fair warning and vagueness argument, yes. Much -- something like the decision in the Bouie case, and our -- we have an argument on that which I would like to call the attention of the Court.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Yes, I would argue that as well. Now --
John M. Harlan: (Inaudible) first section to give this Congress power only with the reference to state action.
Jack Greenberg: Yes, but there was state action here that -- the question as I see it -- to the problems is was that the kind or nature of state action which comes under the amendment. Well which -- that --
Speaker: (Inaudible)
Jack Greenberg: -- there was state action, I don't think anybody can or would deny the question that is that the kind of state action or the degree or the amount of state action. And where you have certain definitions as I understand it that Congress can do something which the courts itself -- courts themselves might be reluctant to do in terms of definition.
Potter Stewart: Well, whenever you have a state court conviction, you have state action.
Speaker: That's correct.
Potter Stewart: At state action isn't what's required. It's state denial of rights protected by the Fourteenth Amendment, denial by a state.
Jack Greenberg: Denial of the kind of rights that you have.
Speaker: (Inaudible)
Jack Greenberg: But the state action is -- because every place and I think perhaps with --
William J. Brennan, Jr.: (Inaudible) even where -- we decide that the use of the trespass statute, any situations is not for purposes of Section 1 standing alone state action. Are you suggesting that Congress however could say it is?
Jack Greenberg: Congress can make findings and review evidence and obtain information that the court sometimes --
William J. Brennan, Jr.: And would say in other words by definition --
Jack Greenberg: Yes.
William J. Brennan, Jr.: -- that the use of the trespass statute in these situations did constitute state action for the purposes of Section 1?
Jack Greenberg: Yes.
William J. Brennan, Jr.: Even though we had held contrary in the absence of such a question?
Jack Greenberg: Yes, I would think so.
Hugo L. Black: Whether it's to argue what Congress did?
Jack Greenberg: That Congress did?
Hugo L. Black: That Congress did that, the question of Justice Brennan asked. You think they did?
Jack Greenberg: I think that Congress did -- yes, that Congress did, yes. Congress defined types of establishment, places with so many rooms, people live in them or they don't. It talked about the kind of state action that didn't talk about the full range of state action. They're obviously talking about --
Hugo L. Black: Didn't say anything about trespass statute one way or the other?
Jack Greenberg: No, there was nothing said about trespass statutes one way or the other. Our primary argument is that this case falls within the -- by virtue of the passage of the Civil Rights Act of 1964 falls within the rule of abatement which was described in Mr. Justice Brennan's opinion in Bell against Maryland. These were a federal conviction, the Civil Rights Act of 1964 would supplant it, I don't think there's any doubt about that.
Potter Stewart: How about -- it couldn't be a federal conviction.
Jack Greenberg: Well, it could've occurred in the District of Columbia and the Thompson case might never been decided. I'm -- if a state statute had been passed in South Carolina that statute would supplant the state conviction, because South Carolina retains the ancient rule and so concedes in its brief. Well, we argue that this case is a fortiori that federal law being supreme and Congress having exercised power and authority under the Commerce Clause and the Fourteenth Amendment, both of which authorize the national government to displace state authority. The federal statute is to be read as abating the state conviction just as it would obliterate a state conviction on these facts were they to occur tomorrow. Now, Section 203 (c) of the Act, the punishment section says you can't convict some if this were to occur today or tomorrow. So you can't convict somebody under this set of fact. And in addition to the plain language, Senator Humphrey was quite clear on the statement on the floor that appears on page 22 of our brief that you can't convict somebody for trespass. I think he maybe even spoken about that now that the Civil Rights Act has been passed.
Potter Stewart: I suppose you could -- somebody could be convicted for disorderly conduct for example, if the evidence showed disorderly conduct.
Jack Greenberg: If it showed genuine disorder, oh yes. But (Voice Overlap) --
Potter Stewart: Or even though they were demanding what they felt they were entitled to under the Civil Rights Act of 1964?
Jack Greenberg: Well, yes, it'd be a question of fact.
Potter Stewart: Yes.
Jack Greenberg: And would be like the Garner case if -- I would say Garner could not be -- the Civil Rights Act would save Garner. But if he were actually throwing the sugar bowl around and so forth it wouldn't save him now. Now --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Oh no!
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: No. I'd --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: That -- certainly not. I hope that my -- I can quite clarify that. Now the rule of abatement, we submit, is part of the common law federal statutory interpretation, but it's powerfully reinforced by other considerations. The rationale behind the common law rule was stated by Chief Justice Hues, in Chambers against -- United States v. Chambers when he referred to the common law doctrine as standing for the proposition that when the reason for the rule vanishes, the rule must go as well. And in this case, we submit, that he reason for the rule has been undermined with the most emphatic manner imaginable. Not only has what once was a crime been made a defense to a charge of crime, but the citizen's right to demand service on a basis of equality has been substituted with the storeowners asserted right to discriminate. Moreover, that asserted right to discriminate rested in part upon certain policy considerations which now have little or no weight. One justification of the state's power to arrest then convict a sit-in demonstrator in the face of the Fourteenth Amendment has been that the Negro would-be patron has not demonstrated that he is entitled to service. He merely sat there demanding service and not getting it in the kind of impasse. But that impasse no longer remains. He's entitled to service now. Justification has also been offered to the effect that proprietor has a certain expectancy in his properties, how he may employ it, perhaps some degree of privacy and so forth. But he no longer can refuse service. He doesn't have that expectancy any longer. He knows he has to serve. Another justification has been that this would lead to affrays and the use of self-help and so forth, but it would be now totally illegal for a proprietor to do self-help, to throw a Negro out in the light of the passage of the Civil Rights Act.
Hugo L. Black: What about in the contrary?
Jack Greenberg: Would a Negro be able to use self-help to get --
Hugo L. Black: Any man of any color who goes in to a place and the man doesn't want to serve him, what is your argument there as to his power to make him do so by his own actions?
Jack Greenberg: Well, I confess that I don't know what the law on that is, but it -- the way it strikes me is I would think he ought not to be able to that he reach a situation that as if I come home to my house, I don't know that if somebody is standing there I imagine I ought to go and get a policeman or do something to get into it, but I don't know. That's not involved here and it has not been a typical situation.
William J. Brennan, Jr.: Well, isn't that -- isn't that answered by the last section of the Act? The remedy shall be exclusive.
Jack Greenberg: So exclusive, yes. Well, I would imagine yes of course.
William J. Brennan, Jr.: You'd have to go (Inaudible)
Jack Greenberg: Yes. He would have to resort to the Act. So the reason for the rule on which the judgments of conviction rest is not only fallen but some of the principle policy arguments supporting an arrest and conviction in the face of the Fourteenth Amendment also a form. But more than that as it worked here. I've referred to the common law of abatement but everyone recognizes that the legislature may qualify, this with a savings provision. The thrust of the general rule however is that the burden is very much upon the legislature to make such savings explicit. And in criminal cases, the further thrust of our jurisprudence is that at least reasonable doubts will be resolved in favor of defendants. The argument may be made that because we have an asserted divestment of state authority by federal law, the delicacy of the Federal State Relationship Council's caution in reaching the conclusion that the 1964 Act restrains the continued prosecution of those whose offenses predate the Act. But the real question is whether following enactment of the 1964 Act, any state constitutionally retains power to persist in regulating through continued prosecution and punishment the behavior which had been taken under direct federal control by the federal act. We submit the federal act strip the states of such power. In answer to questions earlier, I stated our position on this point, and that is that the action of the Congress under the Commerce Clause with respect to a power that the states have exercised only because Congress over the years has permitted them either by intention or sovereign or otherwise they exercise it, is now such a paramount exercise of federal power that the states have had authority taken from them in this just as the Congress had authority taken from it by the passage of the repeal amendment. Now, Congress could have narrowed the Civil Rights Act of 1964 by expressed limitation for the limited purpose of letting states impose punishment in cases like this. It could've affected such a limitation just s Chief -- Justice Hughes pointed out in the Chambers case it could've done in connection with the prohibition amendment, but Congress didn't do this. It may be that Congress' failure to enact the savings clause, the matter occurred to anyone, a legislative history does not indicate it was discussed.
Hugo L. Black: (Inaudible) after the amendment was passed?
Jack Greenberg: I don't know, Mr. Justice Black, I would imagine that to the extent that they rested upon any federal authority which was divested by the passage of repeal they -- to the extent they rested on that, they would've fallen also, but I don't have any idea. I'm not aware that there are such cases.
Potter Stewart: Well, the fact is that that repealing amendment was a very, very specific in preserving a tremendous autonomy in --
Jack Greenberg: In (Voice Overlap) --
Potter Stewart: (Inaudible) states.
Jack Greenberg: That's quite right and states have -- but we submit there's even more than the constitutional consideration than the -- what we call the common law federal statutory interpretation. Congress has enacted a savings clause, Section 109 of Title 1, and what that savings clause deals with, and it's been on the books for a long time is perhaps quite indicative of what Congress did not intend to deal with. Of course there've been cases in connection with 109 over the years. Now, Section 109 which is the federal savings clause does not apply to this case. First of all Section 109 applies only to state -- or I'm sorry, is only federal statute, does not apply to state statute. Secondly, Section 109 deals only with repeals, and in the Chambers case and in Mr. Justice Brennan's opinion in Bell against Maryland demonstrate that what has occurred here is not a repeal but something else, something which may be characterized as substitution of a right for a crime. Finally, Section 109 allows for exceptions even for those statutes which have been repealed, assuming that you wanted to call this a repealer. And Section 203 (c) would be such an exception even if this could be called a repeal and even if it did apply to state judgments. Section 203 (c) provides that no person shall punish any person for exercising any right or privilege secured by Section 201 or 202. And we have an argument in our brief that is -- there's no point in going over here, but they're canvassing the various dictionaries and so forth the meaning of the word secure. The legislative history indicates the word right was not used in the strictly jural sense, even though they're obviously were Fourteenth Amendment rights covered by the Act now that were covered earlier so -- but it was used in some certain morals and since that legislative history is set forth at length in our brief. So if you view it, 109 is applying to state judgments and you view this as a repeal, Section 203 is an explicit exception. But we think Section 203 (c) has even more force than that, because if there's going to be a punishment there's no problem of retroactivity that punishment is going to occur in the future. And Section 203 (c), even if we fall into the use of the words perspective and retroactive, is applying to something that's going to happen prospectively. It says no one shall be punished for exercising rights. These rights sometimes are legal, sometimes are moral, even predating the Act. And we would submit that 203 (c) would cover the situation. Now, even if our argument that the federal act wipes this all out doesn't apply, the federal statute is the law of South Carolina just as any federal treaty is the law of the state, constitution as the law of the state. Cases of this Court (Inaudible) Hallenstein v. Lyman (ph), and other cases have made this abundantly clear. The law of South Carolina, we've argued and this conceded in the brief for the State of South Carolina is that if this were South Carolina public accommodation statute, it would have to abate under South Carolina law. Except that South Carolina has an argument that, I trust this Court will not accept, and that is that even were this incident to occur today these petitioners could be prosecuted for trespass. South Carolina argues that if they're told they can't be served, they have to go out and file an action for an injunction, if they don't, they're trespassers. Well, I think that was made quite clear in the Boynton case and Peterson and Lombard case that someone who is sitting there demanding service against a situation where the Fourteenth Amendment is being violated is not a trespasser. It can't be convicted for trespass, legislative history can --
Potter Stewart: But the Fourteenth -- the Fourteenth Amendment is being violated directly, then you don't need the Civil Rights Act --
Jack Greenberg: But South Car --
Potter Stewart: (Inaudible) do you?
Jack Greenberg: That's right, but South Carolina is arguing here is that --
Potter Stewart: (Voice Overlap) -- from the cases of Lombard and all the rest of them.
Jack Greenberg: Correct.
Potter Stewart: You don't need to -- but that's not --
Jack Greenberg: But South Carolina argues here that they're trespasser under -- even under those situations. I was merely saying that I trust that argument won't be given any weight.
Potter Stewart: But those were the facts, that the fact showed that --
Jack Greenberg: Right.
Potter Stewart: -- the State of South Carolina were denying these people rights guaranteed by the Fourteenth Amendment. That'd be the end of the case. You wouldn't be making --
Jack Greenberg: That's right.
Potter Stewart: You wouldn't have to bother with a Civil Rights Act.
Jack Greenberg: Well, but we do make that argument in our brief we made it last year, but I think the Court is quite familiar with it. There's been abundance of opinions on the point and while we urge it strongly, we don't depend on that argument. But nevertheless we feel that this argument so clearly covers it, that we don't have to go through all that again.
Speaker: (Inaudible)
Jack Greenberg: Yes.
Speaker: (Inaudible)
Jack Greenberg: Right.
Speaker: (Inaudible)
Jack Greenberg: That's correct, that's correct. This is the law of the State of South Carolina. They have the ancient common law rule. They've got a number of cases on it. They admit it in their brief. Their defense seems to be that if this situation occurred today the Negro would be guilty of trespass. We submit that's clearly not the language. The intent of the legislative history of the Act that he wouldn't be and consequently under the South Carolina jurisprudence, the conviction must abate and if South Carolina refuses to follow the federal law in the case, we would follow at state law, this is a discrimination against the federal law and there are cases which indicate that that judgment would have to fall.
Speaker: (Inaudible)
Jack Greenberg: Right.
Speaker: (Inaudible)
Jack Greenberg: Right.
Speaker: (Inaudible)
Jack Greenberg: Well, I --
Speaker: (Inaudible)
Jack Greenberg: I feel --
Speaker: (Inaudible)
Jack Greenberg: I would like to say, first of all, of course it could and there could be done a variety of ways probably by hearing on this very question. But I would urge most strongly that that not be done, because if a Negro traveler is to get off the train in Saint Louis and have an hour between trains and then have to go into town and wonder whether or not what is going on inside the mind of the proprietor in the drugstore, the Act will become completely inadministrable. If somebody wants to affirmatively keep Negroes out off his restaurant, the Act gives him a way to do it if he wants to go to a sufficient amount of trouble to do it. But a place which offers to serve and that there is no substantiality requirement, when Congress meant substantiality it said it in the third category, substantial amount of food. There was a substantiality amendment and it was rejected, it was proffered and then it was rejected that a place which affirmatively, especially a large national chain like McCrory's but any place which offers to serve the public affirmatively. There's no negative -- that's not -- nothing negative, the public includes lesser categories of the public and in this nation with all the travel that we have and all the moving around it covers everybody. Congressman Seller, a number of times, in rejecting the substantiality amendment said that if this were accepted we wouldn't cover all stores. Because its --
Speaker: (Inaudible)
Jack Greenberg: Well, in the stores and lunch counters and, yes its --
Potter Stewart: This restaurant, is it covered, isn't it?
Jack Greenberg: Well, the restaurants are covered, but the store is covered if the restaurant is in the store. We -- as if from the Boynton case, if the Act were interpreted as had been urged by the State of Virginia, then before a Negro could get a sandwich he would have to investigate the inter-corporate relations between the lunch counter and the bus terminal and the carrier. The opinion interpreted the Act in the way that -- it was quite clearly the intent of the Act, but made that completely unnecessary. You wouldn't -- you'd -- to getting people convicted of trespass and I've been in the case in which this was done in order to make a complete record and it's like an antitrust case. You got to go in to the guy's records and invoices and call in suppliers and everything else, and I don't think it's called for but for the Act and enforcement would completely breakdown anytime, somebody really wanted to resist the Act.
William J. Brennan, Jr.: (Inaudible) the same Mr. Greenberg if the Act establishes a presumption and it's upon whoever takes the position that it is not a covered establishment. He has the burden of proof that it's not?
Jack Greenberg: Well, I won't say it establishes a presumption but if a place is -- offers to serve the public, it offers to serve all members of the public and that includes persons who travel from one state to another. Now, a man could set up a restaurant saying --
William J. Brennan, Jr.: You say that's not a presumption, but -- what is it?
Jack Greenberg: Well, it's a logical inference that the lesser is included within the greater.
William J. Brennan, Jr.: Oh, I know, but may the storeowner come in and show that the facts --
Jack Greenberg: That he did not offer to serve interstate travelers?
William J. Brennan, Jr.: Yes, yes.
Jack Greenberg: Well, I don't think he could come in and show that if it were not -- that if in fact he were offering to serve the whole public I don't think he could come in and show that he was not offering to serve the whole public now. I mean, he could try to show it but it would be negative by the fact that he was offering to serve the whole public.
Speaker: He'd need to get (Inaudible)
Jack Greenberg: Well, I can only repeat what I said that, offers to serve the public means offer to serve the whole public. Now, when he was questioned on various categories of the public in connection with racial, national and political beliefs, he said “Well, yes, I serve everybody”. This is everybody and I submit that if a Negro in Clarksdale, Mississippi has to conduct a pretrial discovery of a restaurant to discover whether or not they are offering to serve interstate travelers and to whether or not a substantial amount of the food moves in commerce and so forth, this is a very formidable weapon that is not consistent with the intent of the Act or the language of the Act, the purpose of the Act and so forth. Now I thought, what would I do if I wanted to counsel a man, how to set up a restaurant in which he could keep Negroes out, and its possible. He could put up a sign saying “intrastate travelers only”, and then of course under the actual served provision he would have to check on the people who came in to find he didn't actually serve them, because you have both. You have offered to serve and serve and then he'd have a very peculiar kind of diet there made of just of locals food and he couldn't have coffee or tea or salt or probably sugar and so forth. And then of course there'd be other state action problems but it -- for someone who is genuinely eccentric and wants to do it and there are food faddists who do that kind of thing and other connections, it can be done.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: That's right, he'd have to -- he'd have a lot of -- a lot of problems but he might be able to do it. But that is not this case, and anyway this is McCrory's, a huge chain, but I'd say it would apply to any place.
Speaker: (Inaudible)
William J. Brennan, Jr.: Is coverage under (d) (2) say -- suggest that earlier that --
Jack Greenberg: Yes, Mr. Justice Brennan.
William J. Brennan, Jr.: -- even if it's were purely local hamburger stand?
Jack Greenberg: That's correct. I think the Act contemplates that, yes.
William J. Brennan, Jr.: That if we have it treat it that way that nevertheless this covers under (d) (2) for the purpose of (Voice Overlap) --
Jack Greenberg: There was arrest and conviction to enforce --
William J. Brennan, Jr.: Yes.
Jack Greenberg: -- what is amply described in the record as a costumer segregation, yes. I'd like to reserve the balance of my time.
John M. Harlan: (Inaudible)
Jack Greenberg: Yes Mr. --
John M. Harlan: Supposing Congress had said explicitly that this Act was to apply to past prosecutions to refuse us to serve that referred to illegal at the time that they were -- that they occurred. No state action being involved. Do you think that would raise a kind of retroactivity clause as raised on the constitutional question?
Jack Greenberg: I don't think so, because definitely this doesn't affect any -- doesn't inflict the punishment and doesn't affect any vested private rights and I would think it could be done. In fact it has -- this is what the abatement doctrine does either by legislative implication or common law in hundreds of cases.
John M. Harlan: (Inaudible) in such a clause would have to be justified because that kind of provision could be said they have effect on the current commerce.
Jack Greenberg: Well, I don't know of any cases but I don't know why the commerce power can't --
John M. Harlan: (Inaudible) present you with any problems?
Jack Greenberg: It doesn't, perhaps it should. But I don't think it does because no rights are being divested. All Congress is doing is stopping a state in carrying out a public policy which Congress finds obnoxious to national policy under certain powers. But no one is being damaged by it, in fact in Louisville & Nashville --
John M. Harlan: You still have a federal system (Inaudible)
Jack Greenberg: Oh yes! Louisville & Nashville -- Nashville Railroad versus Mottley which the case cited in our brief, the Mottley's, as a result of an injury on the railroad, settled a claim with the railroad and received a lifetime pass. Then Congress passed a statute saying that such lifetime passes could not be given out under any circumstances, and the Mottley is prosecuted a claim first in the federal court and it was a question of jurisdiction and the state court, and they got a judgment and this Court reversed it. And there was a vested personal claim being retroactively taken away under the commerce power. So the power of the Congress to do this is I submit quite clear.
John M. Harlan: (Inaudible) commerce itself --
Jack Greenberg: Yes.
John M. Harlan: -- not local activity as -- that have affected commerce.
Jack Greenberg: Oh yes, that's true. That's true. But the commerce power goes to -- I believe one of the opinions of this Court say in an antitrust case anything that's more than de minimis.
John M. Harlan: (Inaudible)
Jack Greenberg: Well, that argument has occurred -- that argument has occurred to me and I think it's entirely possible. I didn't argue it. I feared that it might sound as if -- well, but I didn't mean to argue that it -- that if this claim is rejected, there is going to be some terrible national turmoil and this should be a consideration why the Court should do something of that sort. I don't -- I think that in some places there might be a reaction to it, but I would hesitate to argue that.
John M. Harlan: (Inaudible)
Hugo L. Black: I don't want to delay you, what I understand that you are arguing and unless I'm mistaken, all that you're arguing on this point here that if it be found by whatever method you want to find, Congress intended to bar these prosecutions, it had the power to do it.
Jack Greenberg: Mr. Justice Black, I would prefer to stay away from the use of the word intent --
Hugo L. Black: Oh, (Voice Overlap)
Jack Greenberg: -- unless by intent you mean --
Hugo L. Black: Well --
Jack Greenberg: --- the type of conclusions courts come to (Voice Overlap) --
Hugo L. Black: Well, if Congress had done it, said, “We're not going to do it”, you wouldn't argue that they were not -- they were barred, would you?
Jack Greenberg: If Congress had -- in other words if this came within let's say 109 or Congress had a savings clause --
Hugo L. Black: Congress had said this shall have no effect on pending prosecution either in state courts, suppose it had said it, would you argue that was unconstitutional?
Jack Greenberg: Well, I would argue then under my seconds -- the second part of my brief which is the Fourteenth Amendment section that --
Hugo L. Black: Well, that's -- I understand --
Jack Greenberg: Yes.
Hugo L. Black: -- that's really a different an argument.
Jack Greenberg: Oh no, if Congress had an enacted a savings clause, then we would have a different case.
Hugo L. Black: But -- so if we get down to the point, whether you call it intention or not on -- that you are arguing, is whether the Act really does bar such prosecutions. The only way we can do it --
Jack Greenberg: Yes.
Hugo L. Black: -- is to read the Act and history and so forth.
Jack Greenberg: That's absolutely correct in --
Hugo L. Black: That's what I thought.
Jack Greenberg: Yes.
William J. Brennan, Jr.: (Inaudible) Mr. Greenberg, it has the effect of invalidating the convictions unless explicitly --
Jack Greenberg: Oh yes.
William J. Brennan, Jr.: -- Congress had said they should be served --
Jack Greenberg: I don't think that's inconsistent with my answer to Justice Black.
Hugo L. Black: (Inaudible)
Jack Greenberg: Yes. In what --
Hugo L. Black: When you get to that, you wouldn't say it's a constitutional rule would you? If Congress had compelled to do it explicitly --
Jack Greenberg: Oh no!
Hugo L. Black: -- and to serve it explicitly of it's reserved.
Jack Greenberg: I have not argued that.
Hugo L. Black: (Inaudible)
Jack Greenberg: I don't think I have to argue that.
Earl Warren: Attorney General McLeod.
Daniel R. McLeod: Mr. Chief Justice, may it please the Court. The primary concern which I appeal with respect to whether or not these prosecutions have been abated by the enactment of the Civil Rights Act is whether or not there is any showing whatsoever as to whether these establishments or the establishment involved in the Hamm case was in fact covered by the provisions of the Civil Rights Act. There is no proof whatsoever with respect to that and of course it was not an issue because these prosecutions were made in 1960. The only evidence that can be gleaned from the records is this that this -- the Hamm and Ivory himself, the defendants were rejected for service at this restaurant in 1960 because of the fact that they were members of the Negro race. It's also undoubted that the restaurant, the lunch room, serves the general public and that is the extent to which the record shows that McCrory's comes within the purview of the Civil Rights Act.
Byron R. White: What more do you need?
Daniel R. McLeod: I beg your pardon Mr. Justice?
Byron R. White: What more do you need?
Daniel R. McLeod: I'm sorry --
Byron R. White: Let's assume these cases were remanded to make the record on coverage? What would the state in -- what would the state think would be necessary to show that the Act did cover McLeod --
Daniel R. McLeod: And (Voice Overlap)
Byron R. White: -- others than the fact (Voice Overlap) --
Daniel R. McLeod: -- 1960 -- well, it would have to be built on the record, I mean the record is only (Voice Overlap) --
Byron R. White: Yes, but what kind of evidence? What more do you need in the fact that it was serving the public taking all commerce?
Daniel R. McLeod: Oh, of course the statute itself, Civil Rights Act, provides that it must serve or offer to serve interstate travelers. And I submit that the mere proof and the fact that they offered to serve the general public is not an offer to serve general interstate travelers. Now, that's born out I think by the construction as given to the Act by the only two cases that I'm aware of which were -- that have arisen under this Act and which why I've been here last Monday. And I've only had access to one in a brief glance at the one from Alabama, but in the (Inaudible) and in the Alabama case apparently gave a great deal of consideration to showing that for instance no inquiry was made as to the place of residence to the person who presented himself. The fact that advertisements were made up and down the interstate highways, the fact that the restaurant itself was on an interstate highway even to the extent of obtaining license numbers and so forth to see if out-of-state license -- licensed automobiles were in the parking lot of the restaurant. And the quantum of food that was served and where that food was purchased from, none of that appears here. And in the (Inaudible) case, the decision recites that the plaintiff and the United States contend that their offer to serve interstate travelers together with the fact is unquestionably did serve interstate travelers were sufficient to bring it within the scope of the law. But none of that appears here. And therefore, we submit that -- it's clear that there's no showing that this establishment came within the provisions of the law. That was naturally not in question, at the time the prosecution (Voice Overlap) --
Byron R. White: I'm not saying -- I'm not suggesting that --
Daniel R. McLeod: (Voice Overlap) and would not have arisen.
Byron R. White: -- I think you're wrong or anything like that, but you really do think that this is a meaningful issue in the -- in this -- in --
Daniel R. McLeod: Undoubtedly.
Byron R. White: -- in your case?
Daniel R. McLeod: Oh, yes! You mean about the --
Byron R. White: About coverage?
Daniel R. McLeod: About the (Voice Overlap) --
Byron R. White: Do you think there was a remand to make a record on coverage that there would be any problem of any -- is there really any question what the answer is on coverage in your mind?
Daniel R. McLeod: On the question of whether it's covered within --
Byron R. White: Yes.
Daniel R. McLeod: -- the purview of the Act? On the basis of this record, there is indeed a question.
Byron R. White: Then -- but do you really think it's a really meaningful thing to -- though that you would -- a meaningful prospect for you if there was a remand? Would that a (Inaudible) -- a real -- really a substantial question in your mind about coverage?
Daniel R. McLeod: Oh, yes sir. Yes indeed.
Tom C. Clark: Attorney General McLeod, do you have a copy of the Civil Rights Act and constitution?
Byron R. White: Yes sir.
Tom C. Clark: Would you look at Section 201 (b).
Speaker: (Inaudible)
Tom C. Clark: Establishment which serves the public is a place of accommodation within the meaning of this title. That provides two standards, one if its operations affect commerce and the second, or if discrimination or segregation is supported by state action. Now, you go down to (c), and (c) defines the operations of an establishment that affect commerce. So (c) is not material if the second clause of the first sentence of 201 (b) is applicable, if discrimination or segregation -- by the -- supported by state action.
Daniel R. McLeod: That's --
Tom C. Clark: So why isn't Justice White's question quite relevant? What would be necessary -- what could be shown or what would be necessary to be shown in addition to what we already know to bring it under the second clause of the first sentence of 201 (b)?
Daniel R. McLeod: Second clause of the first sentence with respect to affecting commerce?
Tom C. Clark: No.
Speaker: (Inaudible)
Tom C. Clark: State action --
Daniel R. McLeod: State action?
Tom C. Clark: -- or if discrimination or segregation by the support of a state action --
Daniel R. McLeod: Oh, the same thing that was found in the Peterson case and perhaps in the Garner case, I think it's in the Lombard case where the public statement was made by an -- a responsible public official, something of that nature.
John M. Harlan: There's a definition in the statute as to what constitutes state action, 201 (d).
Daniel R. McLeod: There is --
John M. Harlan: 201 (d) says that the state have --
Daniel R. McLeod: Where the custom is encouraged or enforced by the state or political subdivision thereof. No evidence whatsoever to that -- with respect to this case.
William J. Brennan, Jr.: And that occurred (Inaudible) required or enforced?
Tom C. Clark: Well, I would (Voice Overlap) --
Daniel R. McLeod: Required or enforced, I beg your pardon, and posture was originally in the in the Act as it went through --
Tom C. Clark: There would be --
Daniel R. McLeod: -- it was eliminated.
Tom C. Clark: There would be questions remaining yes, but there would be different kinds of questions in the questions on the commerce level, wouldn't they?
Daniel R. McLeod: That's true.
Tom C. Clark: Yes.
Potter Stewart: And if we had that kind of a case, we wouldn't be talking about the Civil Rights Act at all, would we? We're talking about Peterson and Lombard and those decisions, decided before the enactment of the Civil Rights Act of 1964.
Tom C. Clark: (Inaudible) whether or not this Civil Rights Act rests solely on the Commerce Clause and whether it also enforces the powers of Congress under Section --
Daniel R. McLeod: Fourteenth --
Tom C. Clark: -- 5 of the Fourteenth Amendment.
Daniel R. McLeod: Yes.
Arthur J. Goldberg: General, in reference to Justice White's question, maybe it was (Inaudible)
Daniel R. McLeod: Not at all.
Arthur J. Goldberg: (Inaudible)
Daniel R. McLeod: Not at all. For this reason Mr. Justice, if the lesser of a -- of the -- of two establishments are included in the same premises, one can bring the other within the scope of it, the larger can bring the greater or the greater can bring the larger, vice versa. But that is applicable as I construe the law only to establishment that would otherwise come within the scope of the law, the damn store itself is not within the purview of Title II.
Speaker: (Inaudible)
Daniel R. McLeod: About --
Speaker: (Inaudible)
Daniel R. McLeod: That's --
Speaker: (Inaudible)
Daniel R. McLeod: Yes sir, I think it will.
Potter Stewart: This is a restaurant, isn't it? They just serve salad and tomato extract and things like that to mainly the (Voice Overlap) costumers?
Daniel R. McLeod: I don't -- (Voice Overlap) -- I don't know.
Potter Stewart: That's one of these cases, I forgot --
Daniel R. McLeod: I see.
William J. Brennan, Jr.: (Inaudible) your answer to Justice Goldberg Mr. Attorney General, are you saying that the facts would not demonstrate that indeed if this lunch counter, the food served in substantial part came from out-of-state?
Daniel R. McLeod: I would say that the facts from the record shows is --
William J. Brennan, Jr.: I -- I'm not talking about the facts in the record.
Daniel R. McLeod: On the actual fact --
William J. Brennan, Jr.: Mr. Justice White suggested that we remanded this case, re -- finding --
Daniel R. McLeod: Well, I --
William J. Brennan, Jr.: -- on this, is there any question that it'd be ample evidence that --
Daniel R. McLeod: I don't know.
William J. Brennan, Jr.: -- it came within that definition?
Daniel R. McLeod: None at all. I'm sorry Mr. Justice White if I misunderstood that question. There wouldn't be any question whatsoever in my own personal observation. As to what the proof at that time when you -- when the Justice asked me with respect to remand, I had in mind remanded the Supreme Court of South Carolina.
Hugo L. Black: If that's true, why isn't -- you hold the issue whether this is applied to be applied using Justice Harlan's term recognizing it (Inaudible) take it retroactively? Why isn't that the only question?
Daniel R. McLeod: I think it is the only question.
Hugo L. Black: The only question?
Daniel R. McLeod: Yes sir.
Potter Stewart: May I -- to be sure that I understand your -- what I understood to be your answer here a minute ago. You say that if this case should be remanded to the trier of the facts that there would be no question in your mind to what this eating establishment was covered by the Civil Rights Act of 1964?
Daniel R. McLeod: Speaking from my own personal observation and I would assume -- I would think so. No question in my mind. The facts may demonstrate otherwise. I may as counsel mentioned a moment ago have a -- show that they had an intrastate travelers only sign there. They may -- the facts may show that the question thereof -- the clientele as to whether -- where the -- what the place of residence was. I'm satisfied from my observation and recollection of that area, I'm fairly familiar with it, there's no advertisements of this particular dine store up there.
Potter Stewart: Do you think there (Inaudible)
Daniel R. McLeod: But I -- sir?
Potter Stewart: Do you -- it needs to be such a disclaimer in order to be outside of the coverage of the statute?
Daniel R. McLeod: Do they need this?
Potter Stewart: Yes.
Daniel R. McLeod: Well, that would have a bearing on whether they're within the scope of the law or not.
Potter Stewart: Now, where as were -- what we're both doing is -- certainly what you're doing is speculating and I'm not even doing that much because I don't know, I've never been to Rock Hill. But -- do I understand you correctly to say that it is your considered judgment that this eating establishment is now covered by the Civil Rights Act of 1964 as I mentioned?
Daniel R. McLeod: And again I can't answer the question without some degree of speculation because --
Potter Stewart: Now --
Daniel R. McLeod: I've even (Voice Overlap) --
Potter Stewart: But do you think that on remand that this could and would be clearly shown, is that right?
Speaker: (Inaudible)
Daniel R. McLeod: I don't think.
Byron R. White: (Inaudible) don't request that the Act should be remanded for the purpose of establishing coverage?
Daniel R. McLeod: No sir, no. My answer to your question I misconstrued it, I'm sorry, was remand which I think is the most that this Court could do with respect to this case for the determination of this question by the Supreme Court of South Carolina. With respect to the application of Title I, Section 109, the saving clause of the federal statutes, I agree with the petitioner that there is no precise application of that statute here as I see. It simply means that when an offense is created by a federal statute that statute is repealed on a pending prosecutions under that statute are abated unless -- or will not be abated unless Congress specifically authorizes their abatement. Now, applying the analogy of that to the prosecutions which do not precisely, as I say fit here, I feel that the intent of the Congress is that where they mean for a prosecution to be abated, they specifically say so. They have not said so here on the contrary, the punishment sections is specifically worded with respect to the future, no punishment shall be imposed or exercised of these rights. I feel that if there had been a prosecution under a federal statute similar to the trespass statute of South Carolina, the prosecutions under that statute would not have been abated for the simple reason even on the federal jurisdiction under this law for the simple reason that Congress did not specifically designate their abatement.
Byron R. White: (Inaudible) that it applies only to the future, but what about the case that hasn't been tried yet?What about the conviction that has not been had yet? Are you distinguishing --
Daniel R. McLeod: Well, I'm --
Byron R. White: -- between that case and this one?
Daniel R. McLeod: I -- I frankly -- I don't know how many or if any will involve the application in the civil rights statute. I have no --
Byron R. White: Well, how about the --
Daniel R. McLeod: -- no knowledge what --
Byron R. White: How about the arrest that's been made and the charge that's been made but the case in which the trial hasn't been had yet?
Daniel R. McLeod: I don't know how many are involved but if there are --
Byron R. White: Well, I didn't ask that, but assume there is one?
Daniel R. McLeod: Yes sir.
Byron R. White: What about the --
Daniel R. McLeod: Well --
Byron R. White: What about your argument as applied to that kind of a case? You're saying that this -- to -- that this would not apply to such a future conviction in such a future imposition of a punishment?
Daniel R. McLeod: To future actions? I have that -- and our position in the brief is with respect to that is this. Under the present circumstances if a person should present himself for service at a -- in establishments that are covered under the Civil Rights Act, the proprietor as I see it has the charge of doing several things. He can serve the person. He can decline to serve that person. And if that person at that time should decline to leave the premises, the proprietor then can allow him to sit there, if he comes in there 6 o'clock -- at 6 o'clock in the morning, he'll remain there till 6 o'clock that night. Or he can use force to eject him as apparently would be permitted under South Carolina law and fairly similar circumstances with the similar involvement of rights or he can prosecute for trespass. And our -- trespass is our position that under the trespass statutes, prosecutions could still be made if the proprietor should decline to serve a person who is otherwise entitled to it and that person at that time insist upon remaining after having been declined to be served. Now, our position on that is predicated on the holding of this Court in Poulus against New Hampshire where the application for a religious ceremony or religious services or gathering was denied and improperly denied as found by the state court. And this Court stated there that the person involved should have gotten his license or followed his procedural remedies in order to get that license prior to exercising his rights of religion under the Fourteenth Amendment without having to procure a license even though the license was wrongfully withheld from him. And we submit that --
John M. Harlan: (Inaudible) Negro who now has refused service, assuming that the Civil Rights Act is upheld, cannot plead as a defense, plead the action as to the defense for the prosecution of trespass?
Daniel R. McLeod: That's correct, yes sir.
Potter Stewart: What do you do with 203 (c) of the statute?
John M. Harlan: (Inaudible)
Daniel R. McLeod: In punishment?
Potter Stewart: Well, it says no person shall punish or attempt to punish any person for exercising or attempting to exercise any right or privilege procured by Section 201 --
Daniel R. McLeod: Well --
Potter Stewart: -- and 202?
Daniel R. McLeod: -- in the first place that is with respect to future application --
Potter Stewart: I thought you were talking about --
Speaker: (Inaudible)
Potter Stewart: (Inaudible)
Speaker: (Inaudible)
Daniel R. McLeod: That in all frankness gave some concern to me in formulating this matter which I think is important calling the Court's attention for a future guidance of my state as well as other states. The answer that we foresee on that is this. That when a person has made an application to be served and that is denied, his recourse by the specific terms of the Civil Rights Act is exclusive under the provisions of Title II and that is for an application for an injunctive relief. And that is a remedy which he should follow.
Potter Stewart: And you say that the -- under the statute, once he's been refused service, then his only right is to bring a lawsuit, is that it, that's your answer?
Daniel R. McLeod: Yes sir.
Speaker: (Inaudible)
Daniel R. McLeod: And that is the exclusive means afforded him under the specific provisions of the Civil Rights Act and --
Speaker: (Inaudible)
Daniel R. McLeod: That was -- in view of the Department of Justice --
Speaker: (Inaudible)
Daniel R. McLeod: -- recited by Senator -- I don't know, the answer to that. That's the view of it. The statute itself does not say that. And the person in that instance is not being --
Speaker: (Inaudible)
Daniel R. McLeod: I'm sorry Mr. Justice.
John M. Harlan: The statute could be read either way.
Daniel R. McLeod: Yes sir.
John M. Harlan: When that specific question was raised I had to come through to accept responsibility to this bill and that is why this adversary says -- suggested it must be interpreted.
Daniel R. McLeod: And as far as I have not had the opportunity to survey the debates because they're so -- so much debate that was incorporated in the record on this matter and I am not aware of any other provision that will shed any light upon it. That's the construction we have the --
Speaker: (Inaudible)
Daniel R. McLeod: That's true, that's true. As a matter of practical attack upon the problem, I have -- it had been -- on all frankness have anything to do with my legal position on the matter but I have advised whatever police officers that I have jurisdiction over to not --
Arthur J. Goldberg: (Inaudible)
Daniel R. McLeod: I have advised whatever police officers that I have in the jurisdiction over not to make any prosecutions under this on the theory that the criminal actions cannot be used as a mean of circumventing Civil Rights Act. Plus the fact that the arrest warrant should not be signed by the police officers but should, if an arrest warrant is going to be gotten be procured by the individual who operates the establishment. Now, that -- I make that statement just as a matter of information to the Court. I don't think it has an illegal bearing upon the matter but then that action has been independently undertaken by me. Now, with respect to the custom that the petitioner refers to, the statute of course as Mr. Justice Stewart mentioned a moment ago and corrected me a moment ago, it requires only -- or states only that the custom must be required or enforced by the state or political subdivision. The word fostered encouraged or required or enforced phraseology of that nature was eliminated during the course of the passage. There are, as petitioner states in his briefs, many statutes. In my state which do relate to the problem of matter of segregation, the statutes are detailed at length there. There are statutes which require that a school be closed if a child is admitted pursuant to a court order. A constitution in the state requires that separate schools be provided for children of separate races and that none be permitted to attend the school belonging -- provided for a child of another race. But those statutes, the constitutionality of it, of course is manifest. One example of that is the statute that has never been passed upon by a state or by a federal court, the constitutionality of that as I see is manifest, that requires a separate pay windows, separate dippers, separate pails, separate restrooms, separate workrooms be provided for members of the different races. I have advised the Commission of Labor of my state that that statute is clearly unconstitutional and should be disregarded. Now, it's not unusual for a statute where there's specifically been held to be unconstitutional or not to be kept upon the statute books of my state and that my observation in any other state. One example to that is the Fair Trade Act of South Carolina which was declared unconstitutional by the Supreme Court of South Carolina in 1957. And there was a codification of the decennial codification of the laws in 1962 and the Fair Trade Act is found in the Code now. It has no effect, no force and I submit it should not -- none of the segregation statute should be given any effect reflecting any official state, custom or encouragement of any custom with respect to segregation.
John M. Harlan: Mr. Attorney --
Potter Stewart: (Inaudible)
John M. Harlan: -- the --
Potter Stewart: Excuse me, go ahead now.
John M. Harlan: I was going to ask you, do you have any statutory or constitutional -- state constitutional provision that requires segregation in restaurants?
Daniel R. McLeod: None that -- I think this, there is one that would -- with respect to a railroad station in the City of Florence, and there is another one that does not pertain to this, I've forgotten what it is. But none, ordinance, statute, constitutional provision or anything, there is nothing on the statute books that relates to segregation being required by law in this particular case. The police captain, apparently without any urging and without any -- apparently an impromptu bona fide response said, “Well, let me say this. It is my duty to enforce the law and not the custom”. And we submit there is no evidence whatsoever of any state fostered, encouraged, required, or imposed custom. Insofar as the position raised by the petitioner with respect to the validity of the warrant, we submit initially that's a matter of state law. The State Supreme Court has held that the warrant charge one single offense and is a rather confusing record as counsel stated a moment ago, because it was agreed that the record in the Ivory case to be used as record in the Hamm case. And consequently the charge to the jury by the judge is not appropriate. Some provisions of the warrant itself had been deleted with respect to the Hamm case, but they appear in the transcript of record. Nevertheless, it appears very clear that only one charge that of trespass under the statute involved was contemplated in the warrant. The counsel for the petitioner Hamm and for Ivory, Mr. Samson in argument before the court for a motion of a direction of verdict, using these words, “Fails or refuses without a good cause or excuse to leave”, indicating that he had just one single statute in mind when this was submitted. And additionally, no question of the application of the Fourteenth Amendment was raised on this point before the Supreme Court of South Carolina.
Earl Warren: (Inaudible)to whether the manager asked them to leave the store or not?
Daniel R. McLeod: The record does. The record is factually contradictory. There is evidence that he asked them to leave the lunch counter. There is evidence moreover that he asked them leave the store. The record on page 78 reads as follows, “And did not the manager in the presence of the officers asked you to leave the store?” This is Reverend Ivory's answer, “In the presence of the officers, after the officer had requested them to do so”, and further on in (Inaudible) -- that's indicating -- clearly that they meant for them to leave the store. On page 16, “Did Reverend Ivory state any cause or reason or excuse for his refusal to leave the premises on demand in your presence?” Mr. Whitaker asked Reverend Ivory --
Earl Warren: (Inaudible) what was the answer --
Daniel R. McLeod: -- to leave that he could not serve --
Earl Warren: What were the answers to those questions?
Daniel R. McLeod: This is the answer on one of them. The answers are, they called it not --
Earl Warren: Where are you reading --
Daniel R. McLeod: “Did Reverend Ivory” --
Earl Warren: Where are you reading from?
Daniel R. McLeod: I'm reading on page 16 and if not marked by (Inaudible)
Earl Warren: 16?
Daniel R. McLeod: Page 16 of the record.
Earl Warren: 16 of the record.
Daniel R. McLeod: In the middle of the page by Mr. Spencer, “Mr. Hunsaker, other than the matter of refund to which you've already referred, did Reverend Ivory state any cause or reason or excuse for his refusal to leave the premises on demand in your presence?” “No sir”. Now, further down toward the bottom of the page --
Earl Warren: Now where is that, on page 16 of the record?
Daniel R. McLeod: Page 16, yes --
Earl Warren: (Inaudible)
Daniel R. McLeod: -- Mr. Chief Justice, yes sir.
Earl Warren: Oh yes!
Tom C. Clark: Right under (Inaudible)
Earl Warren: Oh yes.
Tom C. Clark: Now, on page 28, toward the -- the three portions away from the top of the page, “Alright, you have stated that Mr. Whitaker asked Reverend Ivory to leave. What if anything -- did Reverend Ivory do or say responsive thereto Reverend Ivory nor Arthur Hamm neither one made any attempt to leave. And at that time Captain Hunsaker asked him if he understood what Mr. Whitaker had told him”. The further part is not relevant to the question of whether they were ordered to leave the premises or just a portion that (Voice Overlap) --
Potter Stewart: Well, right down at the portion that you just read to us on page 28, the reference is that he would have to leave the counter, just continuing what you in the middle have read?
Daniel R. McLeod: That's right. Reverend Ivory nor Arthur Hamm neither one made any attempt to leave. That point, Captain Hunsaker asked him if he understood that Mr. Whitaker had told him -- what Mr. Whitaker had told him, and then he repeated what Mr. Whitaker said and that was that he could not be served, that he would have to leave the counter.
Potter Stewart: Yes.
Daniel R. McLeod: And the record -- that's -- the records is -- shows both portion --
Earl Warren: But it also showed that --
Daniel R. McLeod: -- and it was clearly a factual question.
Earl Warren: -- whether its not -- that they were not unwelcome on the premises because they had purchased items in the other departments of the store before they sat down in the counter?
Daniel R. McLeod: They were not unwelcome on the premises on that portion, that's true.
Earl Warren: Yes.
Daniel R. McLeod: Now, whether the fact that he insisted on service at another portion prompted the manager to say, “You've got to leave the entire store”, I don't know, he apparently was trying to leave because they wanted a refund and in fact did get one. I don't -- the record -- there's a conflict in the testimony. There may be a -- if I've been on the jury I would probably feel that he had not been ordered to leave the store, but I wouldn't -- the court can't say that the jury is compelled to reset conclusion. There is evidence that he was required to leave the store in its entirety -- entire premises.
Hugo L. Black: Is there anywhere else except on page 78?
Daniel R. McLeod: That's the --
Hugo L. Black: That's the main one?
Daniel R. McLeod: I do not know of any other --
Hugo L. Black: That's the one you just (Inaudible)
Daniel R. McLeod: -- statement under --
Hugo L. Black: (Inaudible)
Daniel R. McLeod: That's the --
Hugo L. Black: -- or cross examined?
Daniel R. McLeod: That's the defendant's submission himself on page --
Hugo L. Black: Yes.
Daniel R. McLeod: -- 78, but I do not know of any other further
Potter Stewart: Or page 16 --
Daniel R. McLeod: -- testimonies(Inaudible)
Potter Stewart: -- which you've already read to us.
Daniel R. McLeod: Sir?
Potter Stewart: Page 16, which you've already read to us.
Daniel R. McLeod: Yes sir. Other than those, I don't know of anything -- bear upon the point of whether or not any particular evidence that shows he was required to leave the premises either point to a portion thereof. We submit that the -- no abated effect should be given with respect to these prosecutions.
Jack Greenberg: May it please the Court.
Earl Warren: Mr. Greenberg.
Jack Greenberg: This matter of leaving the store and leaving the premises I think is very easily resolved by looking at the warrant. What happened is the manager asked them to leave the counter. Any demand to leave the store was made by the police officer or at the direction of the police officer, that's what the warrant says. And the warrant is born out by the testimony. The warrant says, on page 2 now, which is the warrant, “By remaining along with Reverend Ivory at the lunch counter which is customarily operated on a segregated basis and refusing to leave the said counter, after the manager of said store, in the presence of city police Captain John M. Hunsaker advised him he would not be served and specifically requested him to leave said lunch counter. And after the aforesaid police officer thereupon advised him that he would be arrested for trespass unless he left the said premises as directed”. At page 78 of the record to which the Attorney General adverted refers to a request being made at the instigation of the police officer. So the premises store conflict falls neatly in the place, in fact everything in the record is consistent with the warrant, and there's nothing inconsistent.
John M. Harlan: (Inaudible) early sit-in programs?
Jack Greenberg: This was June 1960, the sit-ins began around February.
John M. Harlan: (Inaudible) the sit-in was a restaurant -- sit-in or just going into the store where they knew there would be no problem of getting (Inaudible) and so forth?
Jack Greenberg: Yes.
John M. Harlan: It was the restaurant specifically directed the arrest?
Jack Greenberg: In this case?
John M. Harlan: Yes.
Jack Greenberg: Oh (Inaudible)this lunch counter (Voice Overlap) --
John M. Harlan: (Inaudible) the early sit-ins?
Jack Greenberg: These -- the earliest ones were at lunch counters in a larger establishment --
John M. Harlan: Yes (Voice Overlap) --
Jack Greenberg: -- and then some of them like Cooper's Restaurant and (Inaudible) restaurant. I think that the --
Hugo L. Black: (Inaudible) that the statute is valid, but first the statute is valid, gets a -- could not be validly applied --
Jack Greenberg: To this case?
Hugo L. Black: -- to a man who came in to the store but when the storeowner urges him to leave a particular part of the store in which he was there, is it your -- your contention that would make it invalid?
Jack Greenberg: Yes, I would say that -- if the storeowner said, “Would you please move away from that counter?” And then he -- the man didn't, then the storeowner would -- ought to say, “Well, then please leave the store”, then the statute would apply. But if then he were prosecuted under a statute which said leave the premises and not part of the premises. In some states, they drafted statutes, you can draft the statute like that if you want to.
Hugo L. Black: (Voice Overlap)
Jack Greenberg: Then it wouldn't apply.
Hugo L. Black: Do I understand you to say that if a state have a statute, if construed, meaning that a man cannot trespass on their whole premises, cannot trespass on the part of the premises against the owner's consent, then it would be invalid (Inaudible) or part of the premises?
Jack Greenberg: Yes, I would say that would not give a fair warning in -- according to the ordinary assumptions that we make about how businesses are conducted, certainly.
Hugo L. Black: Do you claim that was too vague?
Jack Greenberg: Well, I would say it would not get fair, it's another way of saying, would not give --
Hugo L. Black: (Voive Overlap)
Jack Greenberg: Yes. And the only reason anybody said, “Well, we all know what this means -- ” is because there was a Negro receiving service at the lunch counter, but that of course really points up what the vice of this entire proceedings was. I mean --
John M. Harlan: (Inaudible)
Jack Greenberg: -- the only reason it was construed that way I think --
John M. Harlan: Was this vagueness argument raised in the state court?
Jack Greenberg: It was not raised in precisely this form however its implicit that -- there was a lot of --
John M. Harlan: (Inaudible)form was it raised in?
Jack Greenberg: Well, there was claim of vagueness in connection with the multiplicity and just the open-end quality of the statutes that were used in the trial court, when the prosecutor was asked under what provision is this being brought. He said under all the available law and then he had to specify even in Section 386, and then he referred to a ordinance of the City of Rock Hill, and then he referred to Section 388 which is the new statute. 386 incidentally was held unconstitutional by this Court last year. And then the charge of the jury talked about civil trespass and breach of the peace, and then the intermediate appellate court affirmed on the ground of the old statute and the state's Supreme Court affirmed on the ground of the new statute. And I think there's a sufficient allegations and claims about due process vagueness and fair warning in the case to encompass this article -- this argument, though this argument was not in terms made.
John M. Harlan: (Inaudible) in your brief with relation to due process.
Jack Greenberg: Yes. Yes, it -- but it -- I don't claim it was made in exactly this way, but I think the entire issue of specificity was before the state court in some form. May it please the Court, the argument concerning abatement which we have just presented in its constitutional statutory and common law dimensions is one that applies with singularly -- singular appropriateness, we submit, to the cases at bar. Well, these petitioners, we submit, are not merely the beneficiaries of an overwhelming legislative declaration that expresses the conscience of the nation. But they along with thousands of others in the same situation are the ones who without regard to personal security risked their liberty to arouse the conscience of the nation that led to the passage of the very Act which we claim here protects them. The doctrine of abatement at each of the levels that we offered here is an ordinary expression of our law as it has existed even before this nation was republic. It is still, except with a legislature, has expressly gone on record to the country recognized as well settled. In fact, were these defendants to be punished while others today would not be punished, it would raise questions like those in the opinion of three of the Justices of this Court in the Rice versus Sioux City Cemetery case, I'd like to read a couple of sentences from that. The Court dismisses this case because the Iowa legislature has provided that every person in Iowa except one who has already filed a suit can prosecute claims like this. Apparently this law leaves everyone in Iowa free to vindicate this kind of right except the petitioner. This raises a new question of denial of equal protection of the laws equally as grave as those which prompted us to take this case originally. We cannot agree that this dismissal is justified merely because this petitioner is the only one whose rights may have been unconstitutionally denied. It would be indeed a bitter departure from the spirit of our jurisprudence if these petitioners, perhaps uniquely situated, as those whose actions brought about the legal change in which we rely were punished because they had the courage and inspiration to awaken the conscience of this nation. We respectfully submit --
Hugo L. Black: (Inaudible) constitutional argument?
Jack Greenberg: I don't understand what you mean by a constitutional argument. I --
Hugo L. Black: Well, I'm --
Jack Greenberg: I'm arguing why --
Hugo L. Black: I understand you making an argument on the constitution. Suppose they violated the law, a valid law, would you still say that their bravery violated a valid law?
Jack Greenberg: Oh no. No.
Hugo L. Black: Justified as inspecting?
Jack Greenberg: No, but I would say that under these circumstances that I would hope that this Court would be slow to conclude that Congress intended such a result to come about. We refer of course to -- we come back to, if I may use the word, the intention of Congress in this Act, and we think that the court in construing the Act must come to some conclusion concerning what it was Congress wanted to do with the Act. Well, we submit, we hope that this Court will not likely conclude that Congress abandoned so settled an ordinary doctrine as the abatement principle to inflict so striking an extraordinary punishment in this case. That's the --
Speaker: (Inaudible)
Jack Greenberg: -- thrust of this argument.
John M. Harlan: Mr. Greenberg, this long legislative record (Inaudible) is there any debate, any indication that question of retroactivity, if I may use that word, was -- arose in any stage of the proceeding?
Jack Greenberg: I'm not aware of that.
Earl Warren: Number 5, Frank James Lupper et al., Petitioners, versus Arkansas. Mrs. Motley.
Constance Baker Motley: Mr. Chief Justice, and may it please the Court. Petitioners are here as in the preceding case pursuant to the granting of a writ of certiorari by this Court to review a state court judgment of conviction for criminal trespass growing out of a sit-in demonstration. These petitioners asserted below and assert here that their convictions violate the due process and Equal Protection Clauses of the Fourteenth Amendment to the constitution. As in the previous case --
William O. Douglas: Do you have any brief except this white brief on the petition?
Constance Baker Motley: Yes sir. Our brief is the same as in the preceding case. One brief was filed (Voice Overlap) --
William O. Douglas: Oh, I'm sorry.
Constance Baker Motley: As in the preceding case, since the filing of the petition for writ of certiorari on this case on September 3, 1963 and the granting of that petition by this Court on June 22nd of this year, the National Congress has enacted Title II of the Civil Rights Act of 1964. That Title now, secures the petitioners and all other Negroes similarly situated the right to equal treatment in privately owned places of public accommodation which served the public if the operations of such places affect commerce. That Title also makes it unlawful for any person to deny equal treatment in such establishments. Moreover, the public accommodations title specifically prohibit punishment for exercising or attempting to exercise the right to equal treatment in such covered establishments.
Byron R. White: (Inaudible) this service in a covered establishment arise or when did it arise, with the passage of the Act?
Constance Baker Motley: Well, I think there is indication in the legislative history of this Act that many members of the Congress view this right as existing at least on moral ground than what they were tending to do by this Act was to secure it from denial by individuals and by the state.
Byron R. White: But I suppose the law became effective when it was passed, and this was for --
Constance Baker Motley: Yes.
Byron R. White: -- the right of -- to the right that has created by 201 and 202 that right's origin is with the passage of the Act.
Constance Baker Motley: Well, what happened on there --
Byron R. White: I understand you have it -- I understand that you have a constitutional argument also you might turn to, but insofar as the Act is concerned and if the language, Section 203, it says -- it refers to the right through privileges secured by Section 201 and 202. Now, when those rights, I would assume arose with the -- as far as the statute is concerned with the passage of the statute.
Constance Baker Motley: Well, the security of the right, if I can put it that way, I -- as I say I think that there was some notion in the Congress that these rights were existing but not specifically secured by national legislation and they were attempting by this Act to put protections in the form of the federal statute around these rights which they assume that every citizen had or people in the nation assumed without anyone having previously said so.
William J. Brennan, Jr.: Am I correct in it about the (Inaudible) -- to the history of that word, secured in 203?
Constance Baker Motley: Pardon me -- if?
William J. Brennan, Jr.: Is it -- there a history to the word secured in 203? In other words, what's --
Constance Baker Motley: Yes.
William J. Brennan, Jr.: -- other -- that was different language, wasn't it? Didn't -- finally evolved or ended up was the word secured?
Constance Baker Motley: Yes, that's right --
William J. Brennan, Jr.: And that --
Constance Baker Motley: The --
William J. Brennan, Jr.: Is that -- do you suggest for the reason that --
Constance Baker Motley: Yes.
William J. Brennan, Jr.: -- they thought there was a right.
Constance Baker Motley: Yes, that's right.
William J. Brennan, Jr.: But it needed federal protection, is that it?
Constance Baker Motley: That's right. One Congressman even said that people have argued this is already in the Fourteenth Amendment and so -- in the Senate, I understand, this was specifically taken up and that appears on page 31 of our brief. In the Senate, there was this change made from the words hereby created was changed to base on this Title which would seem to indicate that there was some real notion that here we have rights which were preexisting which were being protected. Now, specifically --
Byron R. White: Well, then I suppose if we -- if your preemption or your federal supremacy argument to abate these actions is to succeed then, I suppose you are saying that the Court must decide whether there was a right to servicing these establishments prior to the passage of the Act.
Constance Baker Motley: No.
Byron R. White: Well, otherwise Section 203 doesn't reach your argument. Section 203 --
Constance Baker Motley: Well --
Byron R. White: -- says no one will interfere with the -- or try to punish anyone for exercising the rights secured by 201 or 202. Well, if the right under those two Sections was created with the passage of the Act, these particular defendants were not exercising any right secured by the Section 201 or 202, these defendants need cases they committed their act before there even -- the Act was passed.
Constance Baker Motley: The -- if I can handle the question, these defendants were exercising a right now secured by this Act. And 203 now prohibits the infliction of the punishment which is not yet been inflicted, that is the prison term and the $500 fine.
Byron R. White: You say the Act says that you shall not punish anyone for excer -- for doing an act which before the statute he had no right to do but which after the statute he has a right to do it, that's the meaning of 203?
Constance Baker Motley: Yes, I would say so.
Speaker: (Inaudible)
Constance Baker Motley: Like the preceding case, these petitioners also contend that Title II mandates a reversal of the judgments below and the remanding of these cases for dismissal as a matter of federal law pursuant to the unique legislative phenomenon rule annunciated by this Court in Bell against Maryland and in accordance with the expressed terms of Section 203 (c) of Title II which we have just referred to permitting punishment for exercising the right to equal treatment in places of public accommodation. The argument just made by Mr. Greenberg of course in the preceding case with respect to this we adopt. But I'd like to point out that Arkansas like Maryland and unlike South Carolina does have a saving clause statute. In fact they have two which relate to this problem and these statutes appear on pages 6 and 7 of our brief. Unlike Maryland however, these Arkansas statutes refer only to repeal of any criminal or penal statute. Consequently, if this Court for some reason should not agree with the petitioner's argument that Title II has the effect of compelling a reversal of these convictions as a matter of federal law and a remand of these cases for dismissal, then these cases may be subject to the same disposition made by this Court in Bell against Maryland that is a remand to the highest court of the state for consideration of the effect of the enactment of Title II on these convictions as a matter of state law. It may very well, be as this Court held in Bell against Maryland that the Supreme Court of Arkansas, whose judgment this Court is now asked to review, might hold the enactment of Title II substituting a crime, a right rather for a crime and vice versa is a unique legislative phenomenon in that state. And consequently, these convictions are outside of Arkansas' general saving clause statutes which relate only to repeal of criminal statutes, thus leaving the Supreme Court of Arkansas to hold applicable to these cases the common law rule requiring dismissal of a pending criminal proceeding whenthe legislature removes the state's condemnation from conduct that was formerly being criminal.
John M. Harlan: That would be a pure (Inaudible) of state law (Inaudible)
Constance Baker Motley: Well, yes, they would be then saying here is the Civil Rights Act which is a part of the law of the state like any other federal statute which we now have to construe and find out what effect this new state law has on these pending convictions. Respondents concede that Title II like any other federal statute as a part of the law of the State of Arkansas. As a part of the State of Arkansas, as I've indicated, Title II not only removes Arkansas' condemnation of petitioner's conduct which was peacefully seeking food service in a department store and refusing to leave the lunch counter when ordered to do so by the owner. But it precludes Arkansas from now imposing upon petitioners Lupper and Robinson of $500 fine and a 30 day prison term, that's what these petitioners' fate in this case.
William J. Brennan, Jr.: (Inaudible) the Civil Rights Act is part and parcel of a particular state law that the Supreme Court of different states might construe it differently and apply it differently in terms of its effect as an abatement statute?
Constance Baker Motley: Yes they might with states -- the different states might, but of course if this Court should hold as a matter of federal law that these prosecutions abate, don't you see we would then have a precedent which the state courts would then --
William J. Brennan, Jr.: Then be uniformed, wouldn't it?
Constance Baker Motley: Yes, that's right.
William J. Brennan, Jr.: (Inaudible) rather unique to suggest that a federal statute might be differently interpreted by 50 different states?
Constance Baker Motley: No. I --
John M. Harlan: Your argument is that the federal statute basically affects the state statute with the purpose of (Inaudible)
Constance Baker Motley: Yes.
John M. Harlan: -- is that -- and therefore the court should (Inaudible)
Constance Baker Motley: Yes, if the different courts would interpret it differently, yes.
Speaker: (Inaudible)
Constance Baker Motley: Yes sir, yes sir. If as respondents' claim, Arkansas has to further expand on this point. If these respondents claim Arkansas has now set its face against its officially segregated path and has now turned for the future, free from state imposed or sanctioned racial segregation in the public life of that state then certainly this new state policy might be taken into consideration by the Supreme Court of the state upon a remand of these cases to that Court to determine the effect of Title II on these convictions. But as Mr. Greenberg has already argued, this remand for state court consideration of the effect of Title II is entirely unnecessary and there is ample federal authority and necessitate for remand for dismissal by this Court. Petitioners here argue, as did petitioners in Bell against Maryland that their convictions violate the equal protection clause of the Fourteenth Amendment since their convictions enforced racial discrimination in violation of that clause.
Earl Warren: We'll recess now. Senator Motley, you may continue.
Constance Baker Motley: If I might just for a moment summarize our position with respect to the abatement of these convictions before proceeding so that it would be clear to the Court exactly what our position is. We say first, if this Court determines that enactment of the Civil Rights Act results in abatement of state prosecutions as a matter of federal law, then these convictions must be reversed and remanded for dismissal. We say secondly that if this Court in interpreting Section 203 (c) determines that the states cannot carry out punishment even though the act of sitting in took place prior to adoption of the Civil Rights Act then these convictions must also be reversed here and remanded for dismissal below. Now, our third position is that if this Court determines as a matter of federal law that there is no mandatory abatement of state criminal proceedings, then the cases would have to be remanded with instructions for the state court to determine the effect of its law of abatement in these circumstances. Now, Mr. Greenberg has already pointed out, South Carolina does not have a saving clause and therefore the Civil Rights Act in that state interpret it as a part of the law of that state, these decisions would abate because the common law would be applicable and the state -- on the state law they would abate and the State of South Carolina could not discriminate against a federal law. In Arkansas on the other hand, there is a saving statute and therefore it's a question of statutory interpretation if repeal means the same thing as repeal in the federal statute then the Supreme Court of Arkansas might hold that these convictions abate because there is no statute saving the punishment. If not, then the proceedings do not abate and of course that would be a question of state law and the law of the state, they would not abate and then we could not come back here on that question. Although of course we have other questions, constitutional questions, equal protection and so forth which we argued.
William J. Brennan, Jr.: Senator Motley, what do you say about the record indicating coverage of this establishment in this case?
Constance Baker Motley: Well, in this case, as in the preceding case the record is clear that this was a department store.
William J. Brennan, Jr.: Locally owned or something else?
Constance Baker Motley: Pardon me? Yes.
William J. Brennan, Jr.: The record doesn't show that its one of the --
Constance Baker Motley: That's right, it doesn't --
William J. Brennan, Jr.: -- national chain.
Constance Baker Motley: No, it does not. It appears to be locally owned. There's no testimony on that question. But it is a department store and one of the petitioners testified that he had been a costumer there for some time and that his mother had an account there for 19 or 20 years. It was therefore a place open to the public. And our position is that open to the public includes all of the public and is therefore covered by the Civil Rights Act because it is a place which serves the public.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: Yes. It appears that these petitioners went to the lunch counter and they were approached by the manager and the assistant manager. The manager, he merely says he -- he told them he didn't want any disturbance and they'd have to leave. Then the assistant manager testified that he approached some boys in the lunch counter and spoke to one, not one of these petitioners but one in the group and said, “Well, we're just not prepared to serve you now, would you excuse yourself?” Meaning move away from the counter. The manager went outside of the store and got the police officers and came back. The police officers had already been called by another police officer, who had observed these issues going into the store and observed them sitting themselves at the counter and ran out and called the police headquarters and apparently was not too far away, that's when the manager went out there were the two police who was across the street. The manager came back in with the two police officers and there were the petitioners walking out for the front door. The police officer said, “Are you the two men” and/or the manager identified them as being among the five which he saw at the lunch counter and that was when they were arrested. Now --
Arthur J. Goldberg: What was the --
Constance Baker Motley: That --
Arthur J. Goldberg: -- time elapsed when this (Inaudible)
Constance Baker Motley: There is no direct testimony as to how much time actually elapsed. But it does appear that it was just a few minutes, two to five minutes, I believe the manager testified that they took him to go over and to come back into the store.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: Yes, that's right. From the time they came into the store initially when they -- on their way up at some time the whole business took place some time between 11:30 and -- well, no one knows the exact time but the going out and getting the police was apparently just a couple of minutes. Now, before -- I would -- I'll come back to those facts when I get to my due process argument but I did want to say a word about equal protection argument. We argue here as petitioners in Bell and the other cases decided last term that these convictions violate the Equal Protection Clause of the Fourteenth Amendment since these convictions enforce racial discrimination in violation of that clause. The same constitutionally relevant reasons which we urge so extensively and exhaustively in Bell for reaching this conclusion have been succinctly repeated in our brief here at pages 46 to 69.
Potter Stewart: (Inaudible)
Constance Baker Motley: Yes and our custom argument and our regime of law argument. These arguments were made so very recently for this Court last term and the Court's decision in Bell evidences that this Court is thoroughly familiar with our contentions in this regard that we would like to not argue that really extensively here today. However, I think it should be noted again that since the granting of certiorari in these cases and this Court's decision in Bell, we now have a federal legislative prohibition against enforcement of the custom of segregation by the states which we did not have before when this Court considered the Bell conviction. So that here we have a federal statute which seems designed to cover exactly what occurred in these cases. The court --
Potter Stewart: You're suggesting that 201 (d) goes beyond a declaration of existing law, of existing case law, are you?
Constance Baker Motley: And take -- yes, it takes up custom, the enforcement of custom --
Potter Stewart: I'd understood Mr. Greenberg perhaps misunderstood him to say that the -- that that Section was no more than declaratory of existing case law --
Constance Baker Motley: Well --
Potter Stewart: -- Lombard and --
Constance Baker Motley: I don't think he meant --
Potter Stewart: -- the other case --
Constance Baker Motley: -- to exclude.
Potter Stewart: Perhaps you can say that.
Constance Baker Motley: I don't think there is a case specifically on custom. I think what he meant to say, he took up the Greenville situation where we had an ordinance. They took up the Lombard situation where you had an official declaration, but I don't know of any prior Supreme Court decision dealing with state court enforcement of custom. So that -- because they had been argued here on prior occasions, I feel that this is why custom is included because as the -- a manager testified the South Carolina case there was no law, what he was enforcing was the custom of the community, not to serve Negroes. And therefore, the state through these convictions and prosecutions and imposition of punishment we say the state is enforcing the custom of segregation. It's like the situation in Shelley against Kraemer. We had a specific federal statute there, on the right to acquire, lease, and hold real property without regard to race and color. Now, we have a federal statute which says specifically that the courts may not enforce the custom --
Hugo L. Black: How would you define --
Constance Baker Motley: -- of segregation.
Hugo L. Black: -- customs? How would you define the custom so as to make it specific and definite like a law as speech?
Constance Baker Motley: Well, that which is generally pursued in the community, here we don't really have that problem because the custom was identified in the South Carolina case and explicitly recognized as the custom of the community.
Hugo L. Black: By what percentage of the community?
Constance Baker Motley: Well, according to the record in this case, it appeared this was universal in that particular City of Rock Hill. But certainly it wouldn't have to be a substantial majority of the community following a particular custom of excluding Negroes, I would think, to say that we have in this community a custom of discriminating against Negroes and certainly in every southern state where the state as a matter of state policy has had state laws requiring segregation in various areas. All such states I would say have a custom generally in the community of segregation solely from that as a matter of fact. I think that --
Hugo L. Black: In other words state action would be something less than law as you understand it and it would be -- all you'd have to prove would be -- by in some way to people voluntarily followed a habit of doing things to a certain weight?
Constance Baker Motley: Well, I think you'd have to show some state connection with that as in these cases that -- as easily showed the state connection as demonstrated by the state statutes, the massive state statutes on segregation which supports that custom if we're going to rely on the Fourteenth Amendment. And I think that's this part of the Civil Rights statute was passed with the Fourteenth Amendment in mind they had in mind state custom stemming from and nourished by all of the states segregation policies and laws.
Potter Stewart: Of course, the trouble is the statute doesn't say that, it has -- had to be required or enforced the action --
Constance Baker Motley: Yes.
Potter Stewart: -- the particular action in issue has to be required or enforced by state officials.
Constance Baker Motley: Well, I -- I think --
Potter Stewart: When you're talking about stemming (Voice Overlap) --
Constance Baker Motley: -- that here we have enforced custom of segregation.
Byron R. White: (Inaudible) doesn't require anybody to follow the custom, it doesn't require anybody to follow it -- if some storeowner wants to truly do business with the public, the state doesn't prevent him, it doesn't require him to discriminate.
Constance Baker Motley: No, not by the trespass statute. But what the state does here is to come in and enforce it through the arresting and charging and fining and convicting.
Byron R. White: Well, you're giving -- you're giving a particular reading or particular interpretation to enforce it.
Potter Stewart: You're back to Shelley against Kraemer --
Constance Baker Motley: Yes, yes that's right.
William J. Brennan, Jr.: And what you're saying, I gather am I right Mrs. Motley, is that -- the private choice is not in fact a private choice. It's a choice pursuant to custom established approved in the manner that you --
Constance Baker Motley: Yes, and supported by --
William J. Brennan, Jr.: -- suggested (Voice Overlap)
Constance Baker Motley: -- state law.
William J. Brennan, Jr.: And the trespass statute then is used to enforce --
Constance Baker Motley: That's right.
William J. Brennan, Jr.: -- not by private choice but custom, is that it?
Constance Baker Motley: That's right.
Hugo L. Black: Is it your judgment that a statute which made it unlawful either federal or state, by a person to follow a custom or to violate a custom would (Inaudible) with the requirements of due process?
Constance Baker Motley: A state statute which made it unlawful for --
Hugo L. Black: It is a crime either to follow a custom or not to follow a custom, do you think that would be definite enough to withstand an attack on the ground that was too vague --
Constance Baker Motley: Oh, I see.
Hugo L. Black: -- to comply with due process?
Constance Baker Motley: Yes, I would think that would be vague, yes sir.
Hugo L. Black: That was the point that -- why I was asking you what you meant by custom. I understand the other arguments --
Constance Baker Motley: I see what you mean, yes.
Hugo L. Black: -- where there are laws, state laws that you rely on, not Shelley and Kraemer?
Constance Baker Motley: Yes.
Potter Stewart: Is there any indication in the legislative history of 201 (d) that Congress intended to go beyond the existing case law in this matter of state discrimination and what was state discrimination?
Constance Baker Motley: I don't believe -- is there?
Potter Stewart: And specifically that there was any intention to import the supposed analogy of Shelley against Kraemer into this situation?
Constance Baker Motley: Well, I have this quote from a Committee or House report here, which says that state action may under some circumstances be involved where the state lends it aid to the enforcement of discriminatory practices carried on by private persons. This is Shelley against Kraemer. The Court held that judicial enforcement of private restricted covenants constituted state action in violation of the Fourteenth Amendment, so they specifically had Shelley in mind as you see. The Court characterized the case as one in which the states have made available to individuals desiring to impose racial discrimination of full coercive power of government, and then they cite Barrows -- Boman against Birmingham which is a Fifth Circuit case and Lombard which was the decision of this Court, so that its clear that they had in mind are Shelley argument in this situation.
Potter Stewart: A -- really they review the decisions in capsule form, don't they?
Constance Baker Motley: Yes.
Potter Stewart: In what you've read?
Constance Baker Motley: But I'm saying there -- they interpreted Shelley the way we've argued it here, I would say.
Potter Stewart: Well, I think the way you read it, I thought they were just reciting what Shelley held on its own fact?
Constance Baker Motley: Yes.
Potter Stewart: Without interpretation. Well, wait, have you got --
Constance Baker Motley: Well --
Potter Stewart: -- a reference to that? Is it in your brief or -- I must read it.
Constance Baker Motley: Where is it? Its 110 of Congressional Record 1463.
Speaker: (Inaudible)
Constance Baker Motley: I think it's the same thing Mr. Greenberg read earlier.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: I believe that's the South Carolina one. They went into a discussion of custom and the testimony of the manager was, in the South Carolina case if that was what he was following, the officer also said there's no law, it's custom. I would like to move now to petitioner's due process claims in this case. Petitioners' claims with respect to due process are the following. First, these petitioners claim that there is no evidence in the record in this case to convict petitioners of failing to obey the store manager's order to leave the premises since no such order was in fact given, the only order given being an order to leave the luncheon area. The second claim is that the plain words of the trespass statute here under which petitioners were convicted gave no fair warning that a failure to obey an order to leave the luncheon area was tantamount to a failure to obey an order to leave the premises which is the effect of the affirmance of petitioners' convictions here by the Arkansas Supreme Court. As in the previous case, these petitioners are two Negro college students attending college in Little Rock and on April 13, 1960, they went into Blass' department store in Little Rock. When these petitioners arrived, as I've said earlier, they were observed by police Officer Bair who followed them along with a few other Negro students into the store and observed them sitting themselves in the luncheon area located on the mezzanine level. Officer Bair immediately left the store and reported his observations to police headquarters. Two other police officers were sent to by headquarters to join Officer Bair. The manager of the store, Mr. Holt, observed as he said, “five Negro boys sitting in the lunch room, three at the counter and two sat at the table.” He then testified that he told each one of them in turn that he didn't want any disturbance and asked them to leave. They refused. The manager left the store and across the street found Police Captain Terrell and Lieutenant Talbot. The mnager returned to the store with the police officer and identified petitioner as being among the five Negro boys he had asked to leave the lunch area. Petitioners were on the main floor on their way out at this time, which was two to five minutes after the original encounter with the manager. The incident took place between 11:30 and 12:00. The assistant store manager as I said before testified that he too saw these boys and he said to one of them not the petitioner that, “We're just not prepared to serve you would you please excuse yourself?” None of the officers actually heard the manager order these petitioners to leave the premises, but Captain Terrell testified on this case. And on page 29 of the record, in two places, Captain Terrell said this, “He” referring to the manager “had requested our assistance to get them out from the lunch counter when he came over to get us”. Then Captain Terrell said on the same page, “He told us that he had two boys that had refused to leave the lunch counter and asked that we assist them”. In short, there's no testimony in this record to support any finding that the petitioners were asked to leave the premises as required by the statute here for conviction. Petitioners were at all times orderly and they were arrested on an open charge and then they were --
Potter Stewart: In addition to the pages which you cited, the respondent on page 34 of its brief cites several additional pages, pages 28, 33, 40, 42 and 44 and you -- I would have a chance to read them all but you -- it's your position that none of these supports any finding at all that they're asked to leave the premises, isn't it?
Constance Baker Motley: That's right, that -- the -- and that the manager's testimony is ambiguous. He just said I asked them to leave, but then the officer makes clear, and he was the state's witness as to what the order was that the manager gave. The manager doesn't quote his exact words but the officer purported to quote exactly what the manager had said to him.
Potter Stewart: I asked you that question because as you are aware, you and counsel for the respondent differ as to what the record shows. They say very positively on page 34 of their brief that the record does show that they were asked to leave the premises (Inaudible)?
Constance Baker Motley: Well, I don't --
Potter Stewart: Do you --
Constance Baker Motley: -- think that's --
Potter Stewart: Do you concede that there might be --
Constance Baker Motley: -- that it shows positively that at all. We say it does not. What is positively shown is what the officer says that the order was. He's the only one who dealt really specifically with what the order here is. And then if you'll look at the facts here, here was a store open to the public including Negroes and the petitioners had been in there purchasing, and it just is not reasonable to think that the manager was saying, “get out of the store” as a whole. He was --
Potter Stewart: Well, I would suggest that that's an equally reasonable inference after they had refused to -- after they'd done what they did.
Constance Baker Motley: Well, --
Potter Stewart: If we're going to make inferences.
Constance Baker Motley: Well, then let me say that the only clear testimony in this case is that the order was to leave the lunch counter.
John M. Harlan: Your -- the premise your argument is that the statute should be read or could reasonably have been read in -- referring to premises as meaning that the refusal that the request had to be to leave the entire premises?
Constance Baker Motley: That's right, this is a criminal statute and --
John M. Harlan: Yes, I understand that. Now, let me ask you this, are there any state statutes, trespass, any state trespass statutes, I don't know what the answer of this question is that in defining trespass are worded in terms of refusal to leave the premises in toto or any part thereof. Do you know of any such state statutes?
Constance Baker Motley: In Virginia Your Honor I understand that it's in our brief, they're trying to find now there is such a statute.
Speaker: At page 75?
John M. Harlan: In Virginia?
Constance Baker Motley: Page 75 of our brief.
John M. Harlan: Take a trespass case outside of the context of the present cases. If I go in to Macy's store, I don't happen to know what the New York state statute is but I think I'm correct in saying that it's a trespass statute in leaving the premises in the conventional form. If I go into Macy's store and I do my purchasing and then I go over to a part of the store that says “employees only”, “employees only” and I insist on going into that place which is not part of the store reserved to employees. You say that I couldn't constitutionally -- and then I'm asked to just leave that part of the -- just asked to leave that part of the premises and to go about my purchases in the store.Do you say I could not be constitutionally prosecuted for trespass under a statute which referred to premises?
Constance Baker Motley: That's right. You may be guilty of a civil trespass but I don't think you can be punished on the statute which required you in plain language to be ordered to leave the premises.
John M. Harlan: I just wanted to get your point, that's it.
Arthur J. Goldberg: (Inaudible) problems with this case, the problem here are the facts, assuming the statute requires a situation put by Justice Harlan. And with these facts (Inaudible) to leave the premises, this is the thing that bothers me. The manager said that (Inaudible) they have a right, would they not to receive the service. Obviously, (Inaudible) lunch counter as a matter of (Inaudible)and I think the record (Inaudible). Then it appears at page (Inaudible) they left the premises or (Inaudible)
Constance Baker Motley: Yes it does.
Arthur J. Goldberg: And where is the evidence in this record to support the (Inaudible) to leave the premises?
Speaker: (Inaudible)
Arthur J. Goldberg: Yes.
Constance Baker Motley: There is none.
Arthur J. Goldberg: Leaving the -- the lunch counter, their argument that the (Inaudible) --
Constance Baker Motley: That's right.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: Yes.
Speaker: And this was all (Inaudible)
Constance Baker Motley: Yes.
Arthur J. Goldberg: They left, isn't that (Voice Overlap) --
Constance Baker Motley: That's true.
Arthur J. Goldberg: (Inaudible) evidence that did?
Constance Baker Motley: Yes, that's true. There is no evidence about it.
Arthur J. Goldberg: (Inaudible)
John M. Harlan: The -- certainly, in the Hamm case and maybe its true in this case the prosecution rightly or wrongly if you look at the warrant which contains the charge was based on the proposition that a refusal to leave the lunch counter as distinguished in the store constituted the trespass.
Constance Baker Motley: Yes, the warrant --
John M. Harlan: That's the clear --
Constance Baker Motley: Yes.
John M. Harlan: -- charge, right or wrong?
Constance Baker Motley: That's right.
John M. Harlan: And that's the charge the defendants knew was being preferred against them.
Constance Baker Motley: That's right.
John M. Harlan: Is that equally true in the Lupper case?
Constance Baker Motley: Well, they were -- I don't have a copy of the warrant here. In the Lupper case -- no, I don't think there is a copy of the warrants probably, it's a copy of the information I guess on page 3 that I'm looking at.
John M. Harlan: What does the information say Mrs. Senator?
Constance Baker Motley: Well, there are two as to Act 14, it said defendant's -- no there is not -- I don't -- that's not --
John M. Harlan: Never mind.
Constance Baker Motley: It merely recites what took place in that at the beginning here.
William J. Brennan, Jr.: (Inaudible) on the motion to quash of this recital, I guess this is the defendant's motion to quash and its -- the contention is that Act 226 and so forth under which these defendants have been charged with creating a disturbance or breach of the peace and Act 14 under which these defendants have been charged with failure to leave the business premises of the store at the request of the management.
Constance Baker Motley: Yes, that was the defendant's motion to quash.
William J. Brennan, Jr.: Well, is that a recital or something?
Constance Baker Motley: I'm not certain if that is a recital of exactly what the information charged but I thought there was copy of the information at the beginning but apparently not.
John M. Harlan: Can I ask you about (Inaudible) Mr. Greenberg said that in the Hamm case, the vagueness point that you are now addressing yourself to was not raised specifically but he thought adequately in terms of the broader question which involved in Hamm but not here as to the prosecutor's refusal to elect which statute he was proceeding under. Was the vagueness point raised in the Lupper case below?
Constance Baker Motley: Yes sir, it was raised --
John M. Harlan: What?
Constance Baker Motley: -- in the Supreme Court of Arkansas, and the Supreme Court of Arkansas passed on it --
John M. Harlan: (Inaudible)
Constance Baker Motley: -- not precisely in these terms. But they said the statute was clear that what was required was --
John M. Harlan: (Inaudible)
Constance Baker Motley: -- for conviction was the refusal to leave the premises and there was no ambiguity on the face of the statute. But vagueness was definitely one of the issues before the state court here.
John M. Harlan: So they construed their statute as meaning leaving the lunch counter is being included within the premises?
Constance Baker Motley: That's right. I'd like to just to call the Court's attention to the Bouie case which was here last term involving a similar situation. There's a sit-in and involving a criminal trespass statute where this Court reversed the convictions under that South Carolina statute on the ground that the petitioners there had not been forewarned by the statute or any prior court decision that a statute prohibiting entry after warning would also apply to a refusal to leave after being invited. So, this is the same kind of situation here where we have a statute which clearly requires an order to leave the premises being construed by a court to allow conviction for a refusal to leave a part of the premises. This, of course the petitioners had no warning of. And of course this Court has held previously in several cases now that where there is no evidence of the crime charged, this also violates due process of law. I'd like to save the remainder of my time for rebuttal.
Jack L. Lessenberry: May it please the Court.
Earl Warren: Mr. Lessenberry.
Jack L. Lessenberry: I, with the Attorney General and his staff of course represent the respondent in this action. I think it proper that I mention at the outset that any lack of convincing quality in the brief from my oral argument I hope it is not based upon reasons or authority thereof but maybe my own in that missing -- the feeling that every young advocate may have at his baptism before this Court. I think that petitioners and their several eminent counsel ought to be congratulated, perhaps envied on the magnificent job they've done in both the preparing their brief in this effective oral presentation. But I necessarily disagree with them. I think it proper that certain aspects of the record before this case be emphasized before I embark on the argument. This case does involve a privately owned -- it's a family privately owned department store. It does have a mezzanine tearoom that does serve luncheons. And I certainly didn't mislead -- intend to mislead Mr. Justice Stewart by saying they just serve salads, they do have light luncheons in there. But if you can imagine at just very briefly this is the type of place where during the serving hours a young lady comes out and models sweaters and skirts and other female attired to their customers that are seated there wherein they're almost all women that use this facility. Now, these demonstrators came in and they weren't just five, they were five there perhaps when Mr. Holt came back or came upstairs. But there were 15 or so demonstrators who came here and they strategically placed themselves across this narrow entrance at the tables and at the counters. They were courteously asked to leave by the store personnel. They refused to do so. They want to question and argue with the store personnel.
Speaker: (Inaudible)
Jack L. Lessenberry: To leave the premises, leave the store.
Earl Warren: Where is --
Jack L. Lessenberry: I don't think that --
Earl Warren: Where is that appear in the record?
Jack L. Lessenberry: I've made several references and I've been -- I attempted to mark them during Miss Motley's statement. I made reference to them in my brief on page 30 of the record. It's question, “But I'm saying that you are positive that they were -- told you they were refused to leave”, referring to the petitioners here, they answered, “They said that they have been asked to leave”.
Earl Warren: But for --
Jack L. Lessenberry: 40.
Earl Warren: -- leave where?
Jack L. Lessenberry: I assume the store.
Earl Warren: Does the record support you in that throughout?
Jack L. Lessenberry: Yes. I think that it does, I sincerely and honestly think so. That statute --
Earl Warren: In a very --
Jack L. Lessenberry: -- was submitted to the jury and the jury so found.
Earl Warren: Is there anything in the record to indicate that he said to the contrary, that he said they'll leave the counter?
Jack L. Lessenberry: I don't think so. I think there's a complete void and absence to testimony that based to that -- the assistant superintendent or the manager said to any of these petitioners, “We want you to leave this mezzanine tearoom”. There's no testimony to that extent.
William J. Brennan, Jr.: Well, Mr. Lessenberry (Inaudible) precedes to that you referred us to, is the officer I gather testifying, “I asked them were they the ones at the lunch counter, and had Mr. Holt asked them to leave, they said yes, they wanted to be served”. But I'm --
Jack L. Lessenberry: Yes, I agree with you --
William J. Brennan, Jr.: -- saying, are you positive they told them they refused to leave, they said that they had been asked to leave, you suggest there was (Inaudible) they were asked to leave the store rather than--
Jack L. Lessenberry: Yes.
William J. Brennan, Jr.: -- just the lunch counter?
Jack L. Lessenberry: And I think it's certainly explainable Mr. Justice Brennan. In Pulaski County, I think there are perhaps 25% colored population, I'm sure there were a number of people in the store. And it was the purpose of this officer, and correctly so under his sworn duty to ascertain that these were the ones that had violated the law, had refused to leave the premises and that those were the ones at the lunch counter.
Tom C. Clark: What about on page 29, about four or five questions down, “and did he” that's the manager “request you to arrest them?” Answer, “He did and he had requested our assistance to get them out from the lunch counter”.
Jack L. Lessenberry: Yes, and that was one of the three references or two references found in the petitioners brief. I don't think that this Court or any court is going to be concerned with the niceties of one phrase. This is a part of a national concerted effort. The Attorney General or the Solicitor General on his brief in Bell v. Maryland recited that there were over 20,000 demonstrations of this sort. Mr. Goldberg -- Greenberg has said that there were some 3000 cases pending. There are two from Arkansas as a matter of fact I don't know where the rest of them have come from. But I can't imagine that anybody honestly believes that theses demonstrators were ingeniously ignorant of their rights here and in fact to use the phrase from this Court quoted arrest here. They intended to violate this particular Act. Two weeks previously, there had been a demonstration of some 50 persons and that's consolidated in this case, Briggs versus the State in the lower court. 50 demonstrators had been across the street bulwarks. Is it remarkable that the same counsel appears in cases in South Carolina, Florida, Alabama, Arkansas and Louisiana? These cases were violation, they were flagrant violations of the law, and I (Inaudible) -- I think the record supports me but as a practical matter and certainly we must look to what the intent of these people were. They intended to violate the law and they did so.
Earl Warren: (Inaudible) isn't it also -- didn't they also look to the intent of the owner of the store as to whether he just wanted to get them out of the counter and be able to get their patronage in the other parts of the -- other parts of the store or whether he want to get off of these premises and stay off the premises?
Jack L. Lessenberry: I suspect Mr. Chief Justice that if there was a qualification to the store manager's order or request to leave, that he would've stated it.
Earl Warren: I beg your pardon?
Jack L. Lessenberry: I suspect that if the store manager simply qualified or desired to qualify the request to leave he would have so stated.
Earl Warren: But the officers said he did.
Jack L. Lessenberry: The petitioners didn't say anything about it and I -- I'm sorry but I can't get that connotation from page 40.
Speaker: Well, how about that (Inaudible)
Earl Warren: Well, I'm not talking --
Speaker: -- (Inaudible) that he told that -- that he as the manager, he told out that he had two boys that had refused to leave the lunch counter.
Jack L. Lessenberry: I think that's --
Tom C. Clark: That's what the officer testified (Voice Overlap) --
Jack L. Lessenberry: -- that's simply correct. They refused to leave the lunch counter. He had asked them to leave, this doesn't mean to my way of thinking that they were only to leave the lunch counter. They had refused to leave the lunch counter.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Oh -- well, I think, and I'm very pleased Mr. Justice Goldberg that you brought that up because I think that affirms the state's proposition here.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes. And that is that the -- well, may I explain this time element and then go to that. These people in the store when the demonstrators came in, went through a sort of a chain of command, the employees saw the people there, they telephoned the assistant manager and if I'm not mistaken he had to come up from the basement. And that's when he asked several of the boys, the record sustains they're a group of boys, not just one, to leave, and when they refused then he went to see Mr. Holt. The police, and of course, you have to know the geography here of 4th and Main Streets in Little Rock, but he had to go across the street to Women Bank and Trust Company to find two police officers and bring them back. The reason that they were arrested is that they were still in the store. And none of these other demonstrators were arrested because they had left. These people attempted and did continue to violate the request. They said they were there to buy some shades, which I'm thinking as the jargon of some sunglasses, I think the testimony reveals.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: I think that's explained absolutely Mr. Justice Goldberg later on. They said they were near the elevator. The elevator is in the middle of the store. They were directed to come out. The petitioners themselves said they were --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: -- purchasing some shades.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: It's --
Arthur J. Goldberg: -- it goes on that the (Inaudible) to leave the lunch counter.
Jack L. Lessenberry: It's difficult. In my short tenure of being an attorney or trying to be an attorney, I've never seen any record that you could go to one page or one area of examination or cross-examination and not be able to pick out something that supports you. But this case is contrary that it's replete as Mr. Greenberg has said, it's replete with the opposite to my -- to at least to my way of thinking, I respectfully submit.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes, and I think that's the reasonable version --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: -- if it please the Court.
Earl Warren: Well, where else do you find in the record other than what you've shown as where the manager told them to leave the premises as distinguished from the lunch room?
Jack L. Lessenberry: I'm not Mr. -- I don't -- I can look that up. I made --
Earl Warren: (Voice Ocerlap)
Jack L. Lessenberry: -- reference to about three or four (Voice Overlap) --
Earl Warren: (Voice Overlap)
Jack L. Lessenberry: -- quite heard, I mentioned there was some more.
Earl Warren: I understood you to say that you had made a record of --
Jack L. Lessenberry: I have logged here, some pages here.
Earl Warren: What are they?
Jack L. Lessenberry: Page 30, did I note there?
Earl Warren: Yes you did. Where's the next one?
Jack L. Lessenberry: Did I mention page 28?
Earl Warren: 28.
Jack L. Lessenberry: Here's another, excuse me.
Earl Warren: Where on 28?
Jack L. Lessenberry: I found another one by the way. About four or five questions down from the top of the page, question “Did they state to you that they” --
Earl Warren: Page what, what page?
Jack L. Lessenberry: Page 28, I believe that's the one you asked me about.
Earl Warren: No, I was asking for any --
Jack L. Lessenberry: Additional.
Earl Warren: -- citation you (Voice Overlap) --
Jack L. Lessenberry: Well, on page 28, there is one. Question, “Did they state that they had refused to leave?” “Yes sir, they answered”. Page 44 --
Earl Warren: But -- now on 28, that doesn't say they refused to leave the premises. It just doesn't say that.
Jack L. Lessenberry: Well, I certainly apologize, it certainly not my position to -- and I think It'd be incredible if I were to try to put something over on this Honorable Court. The question, “Did they state to you that they had refused to leave? Answer, “Yes sir”, this is a reference to the question of the officer examining the petitioners here.
Arthur J. Goldberg: Mr. Lessenberry, at page 34 of your brief, it gives the record citations at which you rely. What (Inaudible)
Jack L. Lessenberry: I see one on 44.
Arthur J. Goldberg: Do you have the (Inaudible)
Jack L. Lessenberry: Thank you sir.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes, thank you. On page 44, the question -- let's -- well, no, that's -- excuse me, that's sort of a negative presumption or so.
Earl Warren: Well, you -- you may proceed with your argument, I won't pursue it any farther.
Jack L. Lessenberry: Thank you very much.
William J. Brennan, Jr.: How about in page 1, Mr. Lessenberry, I think you've just argued did you not, that these folks were looking to violate a law and to be arrested?
Jack L. Lessenberry: That's the only --
William J. Brennan, Jr.: Well, is that significant?
Jack L. Lessenberry: -- thing I can get out of this.
William J. Brennan, Jr.: Well, I -- I'm just wondering, isn't that argument foreclosed to what we held in Bouie?
Jack L. Lessenberry: In -- pardon me?
William J. Brennan, Jr.: In what we held in Bouie versus City of Columbia where we said --
Jack L. Lessenberry: I think it is to some extent, but as I understand --
William J. Brennan, Jr.: But what we said (Voice Overlap) --
Jack L. Lessenberry: -- the South Carolina stat --
William J. Brennan, Jr.: What we said was we think it irrelevant that petitioners at one point testified, as they did there and did not here, that they had intended to be arrested, determination whether a criminal statute provides fair warning of its prohibition, must be made on the basis of the statute itself and the other pertinent law rather than on the basis of an ad hoc appraisal of the expectations of particular defendants.
Jack L. Lessenberry: Yes. And I distinguished the Bouie case on this basis that the South Carolina statute required a fore (Inaudible) -- warning under the terms of the statute. I think that's a greater burden on the (Voice Overlap) --
William J. Brennan, Jr.: Well, that may distinguish the statutes but I'd wondered if this doesn't foreclose the relevancy of the arguments you've just made that because they expected to be arrested, they're not to be heard to argue that the statute was vague.
Jack L. Lessenberry: I certainly didn't intend to argue that point only. I did intend to forcefully state that they did intend to violate the statute and I believe they did. The Arkansas Supreme Court so found and reversed about eight others, that they found didn't.
Potter Stewart: Mr. Lessenberry, let's assume that the record were very clear and unambiguous as Senator Motley as told as it is, but let's assume that there's no doubt about that. That all this record shows is that they -- that these petitioners were requested to leave the lunch counter that there was no argument as to what the record show that that's all it showed, that there were clearly unambiguously requested to leave the lunch counter and that they refused to do so. In your opinion, would this Arkansas statute apply?
Jack L. Lessenberry: I don't think there's any question about it. I think what the -- stated by Mr. Justice Black if I may -- and Mr. Justice Harlan that you don't trespass on just a part, you trespass on a whole. If you trespass on a part, then that's part of the premises. But I'd rather not deal with the -- that type when I've got a record that I believe says that -- and sustains that these --
Speaker: (Inaudible)
Jack L. Lessenberry: -- people were told to leave --
Speaker: (Inaudible)
Jack L. Lessenberry: Then I accept that proposition. I think it's a sound legal proposition.
John M. Harlan: (Inaudible) warrant to which these people were charged?
Jack L. Lessenberry: Mr. Justice Harlan, the only thing I could find in the record was an information that have been filed in the municipal court and it only alleges a violation of Act 226 and Act 14, it doesn't use particular terms to describe that violation.
John M. Harlan: (Inaudible)
Jack L. Lessenberry: Yes, of course it does.
John M. Harlan: (Inaudible)
Jack L. Lessenberry: Yes. It's my understanding that a warrant was not issued in this particular case either because it occurred in their presence where they admitted the violation. I don't think that a warrant was issued.
John M. Harlan: (Inaudible)
Jack L. Lessenberry: Not that I know of sir.
Hugo L. Black: Was this case tried by a jury?
Jack L. Lessenberry: Yes, it was Your Honor.
Hugo L. Black: Is the charge in (Inaudible) charge from the jury?
Jack L. Lessenberry: The -- there are some argument concerning the instructions, I think the court read to the jury the statutes, but I don't know that all of the instructions are set out here, I'm --
Arthur J. Goldberg: (Inaudible)at page 71, the charge is that (Inaudible) to leave the premises (Inaudible)
Jack L. Lessenberry: Yes. As to immediate advance, I don't think that someone can trespass for a few minutes with impunity. I think that the request of the manager here did demand that these people leave immediately.
Hugo L. Black: (Inaudible)
Jack L. Lessenberry: I think that's -- I think you're more familiar with the record than I am Mr. Justice but I'd say this, I'm not too sure that that was what was given or if that was a request of instruction.
William J. Brennan, Jr.: (Inaudible)
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: It was the court's instruction.
William J. Brennan, Jr.: It says it had the court's instructions that the jury (Inaudible)
Jack L. Lessenberry: There was an alternative apparently put by the judge to the jury that leaving the premises though was included.
Speaker: (Inaudible) are arrested?
Jack L. Lessenberry: If I might leave the question of the record, I'm -- ask permission to proceed to discuss some of the other points that are -- discuss some of the other points, legal points that I think are most (Voice Overlap) --
Earl Warren: Proceed in your own way.
Jack L. Lessenberry: Yes sir. In the case of (Inaudible) v. Kraemer, if a person could stay at a retail establishment for five minutes or ten minutes, if we must deal in those time -- periods of time, then as in (Inaudible) , a person could be bodily hauled out of the store. It required immediate advance. I think there's an annotation A.L.R. which is consistent to that. I might say as to sufficiency that there was a motion for direct (Inaudible) -- directed verdict that was made in this case but it only went to the disturbing of the peace cases and not the question of the sufficiency of the evidence in this case. Under procedural rule in Arkansas of course that is necessary. The sufficiency was attacked on appeal on Arkansas Supreme Court. This is entirely new I believe. I'd like to discuss of course the Civil Rights Act and its effect or possible effect on these prosecutions.
Arthur J. Goldberg: Before you do that (Inaudible)
Jack L. Lessenberry: No.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes, I agree with that and no --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: -- they were not denied.
Arthur J. Goldberg: In reference to that, according to our procedure on Civil Rights Act, how can you think about arguing why did they find (Inaudible)
Jack L. Lessenberry: I don't know how the State Supreme Court, I've read this record half a dozen times and I see no reference whatsoever to raise in the record, except the supposition of the petitioner Robinson on cross-examination. Mr. Prosecutor Frank Codd to ask him, “Do you know, why you were asked to leave?” and he said, “I really don't know, I suppose it was because of our color”, but that's the only reference to raise there is in the entire record.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Improvidently I believe.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes sir. I don't want to get it back home that I'm criticizing the Supreme Court but I think it's quite obvious that the record doesn't sustain that these petitioners were asked to leave on the basis of the record.
Hugo L. Black: Well, do you think there's any doubt about that?
Jack L. Lessenberry: Do I personally think there was any doubt about it?
Hugo L. Black: Yes. Was there any other reason this Court (Inaudible)
Jack L. Lessenberry: I suggest the reason that there were 15 or 20 demonstrators wearing badges coming up there and sitting in a line of tables across the entrance to this mezzanine tavern. I think whether they were white or colored, anything else that demands or under those circumstances would -- could exercise his private prerogative of ordering these petitioners to leave and refusing them service.
Hugo L. Black: But it was -- was reference carrying out did he have a policy against it?
Jack L. Lessenberry: I --
Hugo L. Black: Would you (Voice Overlap) on abstractions --
Jack L. Lessenberry: I will say this that I personally believe at that time that Blass did not serve Negroes. I don't know that. I don't know if any had asked. And I know that they served Negroes at this time as most all of restaurants in (Inaudible). I mean, even prior to the Civil Rights Act, this happened in 1960.
Earl Warren: Well, according to the policeman, the two policemen who were standing across the street when the manager and his assistant approached them, they complained that they had colored boys.
Jack L. Lessenberry: Yes.
Earl Warren: That's all. They had colored boys over there, and what that does mean if it doesn't mean that they were concerned about them because they were colored?
Jack L. Lessenberry: Well, I can say -- I can say this that such a record to this Court probably means that these people who were per se bad.
Earl Warren: Because of their color?
Jack L. Lessenberry: And in my -- it's my impression -- but to me -- from Little Rock and living in a community of different ethnic groups, it means nothing else more than a description of who was there. I just don't see that an officer or a store manager saying that, “We have colored boys”, means that that's necessarily bad, and I don't think that store manager intended to give that implication.
Earl Warren: Well, how about -- how about all your other restaurants at that time, did they or did they not (Voice Overlap) --
Jack L. Lessenberry: There were some --
Earl Warren: -- white and colored?
Jack L. Lessenberry: There were some. There was a record on Ninth or Twelfth Street that were serving colored and white. When I was child, well (Inaudible) -- people have been free to do what they so desired. I see one of the petitioners' local counsel here, as reason I looked back and --
Earl Warren: Suppose this -- let me --
Jack L. Lessenberry: -- if I'm misstating that, they were entirely outside the record, but if I'm misstating that, then he can clarify it.
Earl Warren: Let me ask you this, a little different attack. If the Civil Rights Act of 1964 had been in effect at that time, would this store have been covered?
Jack L. Lessenberry: I think probably it would have. The tearoom doesn't advertise. It's a very small place, but it is a large department store. And I mean to my way of thinking, my understanding of Commerce Clause and how it's been applied, I think it properly this would deal an interstate commerce probably substantially. I don't know if the restaurant does. I don't know if there's a distinction. I believe this case can live very freely with the Civil Rights Act although I don't the Civil Rights Act can -- applies here at all.
Tom C. Clark: (Inaudible) being requested to leave the lunch counter or the restaurant and he did not leave?
Jack L. Lessenberry: I believe that the petitioners, each of them individually by two different people, the assistant manager and the store manager asked each one of them to leave and they just said leave or get out. I don't think that they were --
Tom C. Clark: But they've taken a charge on page 70, do you agree with that, they they're charged -- the judge sent down a charge for being threatened to leave the lunch counter or the restaurant?
Jack L. Lessenberry: The charge to the jury -- administered to the jury made by the court, I --
Tom C. Clark: What I think --
Jack L. Lessenberry: I think it's an alternative the court says here, if you find from the evidence that the defendants were requested to leave the lunch counter or the restaurant, they just limit it to that.
Tom C. Clark: Well, they left the restaurant though.
Jack L. Lessenberry: They left after --
Tom C. Clark: (Inaudible)
Jack L. Lessenberry: -- I compute 20 minutes or 15 minutes, yes.
Tom C. Clark: They were in another part of the building when they were left -- arrested?
Jack L. Lessenberry: Yes sir, but I -- I maintain that a person doesn't have a free time that he can call (Inaudible) children and say, “I'm able to stay in this restaurant in defiance of your lawful order for five minutes or three minutes or ten minutes”, and that's what they did do. It requires immediate abeyance under (Inaudible) and as I understand the majority of trespass statutes, and every state in this union has trespass statutes.
Tom C. Clark: It said they have to leave the minute that it's requested?
Jack L. Lessenberry: I would say immediately. I would assume that that's long enough to get the things that you might have there together and leave.
William J. Brennan, Jr.: Well, is there anything in the record which indicates at the end of this conversation how long it was before they get up?
Jack L. Lessenberry: The only thing that I'm able to discern myself is that after they had been requested by the store manager and after he had called Mr. Holt and Mr. Holt came up -- excuse me, the assistant superintendent, after the store manager came up, Mr. Holt, he again asked one of them then he left, went out of the building across the street, got two police officers and came back. Sometime in his absence, they were leaving.
William J. Brennan, Jr.: Well, indeed then not only had they left, they'd come downstairs, had they not?
Jack L. Lessenberry: Yes.
William J. Brennan, Jr.: And the officers said they were on the way out of the store when they intercepted them.
Jack L. Lessenberry: I disagree with the use of the word in --
William J. Brennan, Jr.: Oh.
Jack L. Lessenberry: -- intercepted. They were there, I believe, standing (Voice Overlap) --
William J. Brennan, Jr.: Well, they met up with them downstairs --
Jack L. Lessenberry: Yes.
William J. Brennan, Jr.: -- after they had left the lunch counter and come down to the ground floor, did they not?
Jack L. Lessenberry: Yes sir.
William J. Brennan, Jr.: And the officer said, I don't know the (Inaudible) -- exactly where, all he said was they were leaving the store.
Jack L. Lessenberry: Yes, they were in a position to leave. I think they were in one in the quarters, one was saying that he was looking at some shades. The fact of the matter is though that after -- upon the request, upon two different requests they said, “Well, what for or why, we're not going to leave. I want to argue”, and did argue. Then I suppose for a period of time that being seen critical for the prosecutor that -- below, and I honestly don't think it's too critical here now that they stayed there anytime after they answered these two lawful requests. I want to skip a significant portion of my argument and move over to the statement concerning the application of 203 (c) and that is as I read the notes or the brief of the petitioners, they say that there isn't retroactive application of the Civil Rights Act. They admit that initially, but then they say that 203 (c) prohibits punishment, shall prohibit punishment and they would say it this time. In other words they would admit or say to this Court, “We agree that this was a criminal act and that there is a valid prosecution and that there's no retroaction as far as the affirming state court conviction but on the other hand you cannot now convict them”. I think that (Voice Overlap) --
Potter Stewart: But there are several alternative arguments but here as I --
Jack L. Lessenberry: Yes.
Potter Stewart: -- as I understand it you're certainly correct as to one of their alternatives.
Jack L. Lessenberry: Yes.
Potter Stewart: But it's not that you cannot now convict them, it's that you cannot now punish them.
Jack L. Lessenberry: Punish them. That's the point. In other words you would deprive from the entire legal process the thing to be gained in punishment from this. It makes legal procedure, a criminal procedure a mockery and nothing more than a farce to my way of thinking at least. They say and make a very emotional argument that if these punishments are to be permitted that this would be a last vestige of segregation. And they'd acted -- the National Conference has said that these persons should not be convicted. But if it please the Court, the National Conference did not provide for retroaction, Congress could have done that, they did not. The National Conference in true terms was actually not in sympathy with these petitioners. If they were, it would create a dual system of justice to my way of thinking simply for the benefit of these petitioners. There have been a number of cases which dramatically points this out. This Court denied certiorari, I think back in 1949, when the federal statutes were changed to -- from permitting imprisonment for rape at either death or life imprisonment. After the charge, it went back for retrial and they argued that the jury be instructed to provide for a lesser term of years that the court be so -- the jury be so instructed. The court refused to do so. I think there's a significant difference in a man being fined $500 and given 30 days and not permitting the jury to give him some term of (Inaudible) -- years but serving a life imprisonment. There are numerous analogies here -- the violations of the Emergency Price Control Act. I don't think there's any question at this statute that we could twist it so it'd have federal origin, it would not have been abate -- abated under the federal saving statute. I don't believe that the Supremacy Clause of the United States constitution has given such an interpretation that we're going to treat states one way, and federal laws another way. I want to say something about historical prejudices in Arkansas in the south. I can't help but fel something personal animosity and disappointment to deal with this argument. I think that Arkansas and it's wrongful that Arkansas and the community of Little Rock be condemned for some unequated statutes. I noticed one that was cited by the petitioners that has reference to separation of railways. If you look at that statute, it was enacted within three years at Plessy v. Ferguson, and one that -- and it held that -- what this Court hold -- held at that time, I think a real fine analogy. It was Mr. Greenberg's statement that he didn't believe that the provisions of the National Prohibition Act have been repealed by our own Congress. Legislature seemed to be too busy trying to take care of new business road and disposing of old business has become ineffective. There have been as far as I know, even the Little Rock School decision, that closing case, there wasn't any federal compulsion of the Little Rock School Board, they implemented their own plan of integration. It's only because of the disturbance there of a few radicals. Look at those cases, I invite the attention of the Court to see those cases where the community leaders, the Chamber of Commerce, the police officers all acted to enforce the law and I think that they have. I can't believe that this Court would tell the people of Arkansas that we will take judicial knowledge that you're prejudice. Psalm 11 says -- its kind of -- it seems to me appropriate here that if our foundation so fall, what shall happen to the righteous. I think there are some righteous people. I don't think it's proper. If you can make an argument of vagueness -- if you can make an argument of vagueness of this statute, you can certainly make an argument of vagueness of this indictment that's brought against the people of Arkansas, because certainly there was no evidence submitted below. There was no proof. There was something -- some mere inference in their motion for new trial they wouldn't even argue. And if this had been a jury discrimination case, this Court would hold consistent with its holdings in hundreds of other cases that these matters have to be brought to the state court's attention. In Carter v. Texas, you can't just file a motion and gain proof and gain a reversal.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: It's my opinion sir that Arkansas has consistently interpreted their savings statute as generally interpreted in Sutherland on statutory construction. It saves its -- it abrogates the common law. These people could still be prosecuted even if they were in some face of state procedure, but I've searched and I haven't found a case of Arkansas which said that. It -- however --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: I believe that it -- I believe that it does.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: No, I don't think there's any conflict even in the Federal Civil Rights Act of 1964 and the trespass law of Arkansas, Act 14.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: I think the existing statute covers it, but I -- the -- as far as I know, it has not been interpreted by a case. But to borrow a phrase if we go back to Sutherland in statutory construction in the purpose of a saving statute -- in the cases in federal courts, they all adhere to that purpose because in modestly enough, if these demonstrators caused its Congress to enact a Civil Rights Act, still those people acted imprudently when they went to a place and did not leave after they'd been advised to do so. I want to talk very briefly now, if I may in regard to the case of Shelley v. Kraemer. I'm not absolutely satisfied to simply distinguish Shelley v. Kraemer. I think Shelley v. Kraemer says something more. I think Shelley v. Kraemer confirms the fact that an individual has a right to discriminate if he so desires. I understand Shelley v. Kraemer to say two or three different things. The first is that a state court cannot require a person to discriminate if he does not wish to do so. Also, Shelley v. Kraemer was determined, in part at least, upon the federal given right of colored people to deal in property as white men. There is a phrase in Shelley v. Kraemer which is significant to me and that is voluntary adherence to restrictive covenants is not constitutional. Isn't that an individual's right to discriminate voluntary adherence? I believe that it is. These cases are not like Marsh v. Alabama where the decision can rest on the right of religion or the Smith versus Allwright or Terry v. Adams where under the Thirteenth Amendment a person has a right. They are not cases involving at this time, I hope, interstate commerce where we could invoke Boynton v. Virginia. None of these cases and none of these principles say that a person has a right to go to a particular restaurant or a hotdog stand on a corner or a mezzanine tearoom and demand service. Even the petitioners in their brief describe it as some sort of right. They don't define it for us. And then, in my closing moments I want to --
Hugo L. Black: So you are not denying that since the Civil Rights Act they do have a right to go into such a restaurant (Inaudible) and is covered?
Jack L. Lessenberry: Yes, I won't presuppose and concede that the Civil Rights Act, for the sake of this argument is constitutional in all respects and that --
William J. Brennan, Jr.: And would the (Inaudible)
Jack L. Lessenberry: As a covered establishment, but one thing further and I think this is most significant to the respondent's argument Mr. Brennan, these persons weren't refused on the basis of race, color, religion or those items set forth in the Civil Rights Act. I believe that a man still has a right under the Civil Rights Act to tell a particular person to leave his restaurant so long it's not within one of those prohibited specifically named thing. There's a principle or construction that -- when it list a statute list items of coverage, it's limited to those items.
Speaker: (Inaudible)
Jack L. Lessenberry: Yes and that's all I have before this Court, it's the record that was made by these petitioners and I believe it's their fault if there --
Byron R. White: (Inaudible) -- what you would -- would you really urge us to remand the purpose, the effect -- if that's all (Inaudible) the case, the only question our mind is whether or not the Act covers this request to leave? Would you really urge us to remand to determine whether or not this store manager asked these people to believe -- to leave on account of race?
Jack L. Lessenberry: No, I would not. I think remand on those circumstances --
Byron R. White: (Inaudible)
Jack L. Lessenberry: Pardon me?
Byron R. White: That's the meaning of the statute, don't they? As to why they asked them to leave?
Jack L. Lessenberry: I think in some instances it has. I think when you got to --
Byron R. White: Well, (Voice Ocerlap) -- how about this one --
Jack L. Lessenberry: I'm answering -- I think we've got to face up the facts if the -- that the reason in my belief of refusal in this case was but that I don't know -- I'll qualify it this way. I don't know if one Negro appeared that he would not have been served. I'm convinced that the presence of 15 or more Negro demonstrators wearing badges and sitting as they did was the reason and that race played a substantial part in the denial. But Blass does serve, it served before the public Commendations Act and --
Byron R. White: Well, I understand that, I'm -- but if it were the only question that remained in this case as to whether or not these people were required to -- requested to leave on account of race, would you really want to remand (Voice Overlap) --
Jack L. Lessenberry: I stated in our brief but I believe it would be an exercise of futility --
Byron R. White: Yes, alright.
Jack L. Lessenberry: -- to send it back below for that reason alone.
Potter Stewart: I thought you told us here earlier today that this was a women's tearoom and lunch and fashion show and that there's every reason to suppose that if 15 men, white men had shown up, demonstrating for any reason that they might (Voice Overlap) --
Jack L. Lessenberry: If they were demonstrating, yes.
Potter Stewart: -- asked to please leave.
Jack L. Lessenberry: Yes.
Potter Stewart: Well, are you departing from that or not?
Jack L. Lessenberry: No, I'm trying to make it clear that race played a substantial part in it.
William J. Brennan, Jr.: The record doesn't show it played (Inaudible)
Jack L. Lessenberry: But the record doesn't show that it played any. I -- you've asked me to be completely candid and fair with the Court, and I'm giving you my personal opinion. I have no way of supposing or speculating what Mr. Holt had in his mind when he went up to this mezzanine tearoom and found a crowd of demonstrators lined up demanding for service and arguing why they couldn't get service.
Earl Warren: You call them demonstrators because they wanted to eat because then white people wanting to go there to eat would he have objected to them filling the dinning room?
Jack L. Lessenberry: Your Honor, I didn't -- I don't think that I called them demonstrators at all except I copied their words. The record is clear that these young men said that they didn't even know each other, that they just happened to be there, that there wasn't any concerted effort whatsoever, that they didn't even knew who was at the table with him. But now, this is the same argument that was made in Arkansas Supreme Court, but then as I noted in my brief at the statement made in petitioner's argument, they finally admit that this was a sit-in demonstration. And yes, I'll accept their version as a sit-in demonstration.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: I think that --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: I think that --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: I'll say that about the same token I know, that there's the purpose and design of this Court, but by the same purpose if I'm not mistaken, this Court has ignored some things that the state courts have held and actually looked to the record to find out what had did happen. And as long as this Court finds an actual violation of due process or denial of equal protection laws, it has not hesitated and should not hesitate to act, if not governed alone by what the state courts says or remarks as far as the facts in the case, I don't think this Court should be blinded.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Unless they -- the construction is violative of due process or equal protection --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: I agree with that.
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: I think perhaps maybe I have just a minute to talk about one further thing here and that is extension of the Fourteenth Amendment in this case to cover other than what has been known as state action. And that is this, after remarking that state custom could amount to state action or that judicial action is state action, and I suppose they mean more than state action. It's state action which denies due process of law. Then they asked this Court to draw a new line, to use a new line, but if we do this, then we forget the fact that Congress submitted one Fourteenth Amendment to the states, the states legislatures accepted those Fourteenth Amendments, those are the ones that should be applied here. One remark in the brief is very important to me and they say that this Court and the courts of the states have been accidental with state action. I ask what promise does their radically new theory of individual action holds. If this Court's been accidental in the past with state action, how canit be any more certain with individual action?
Potter Stewart: It said -- they've been accidental or occidental?
Jack L. Lessenberry: No, I think they said accidental.
Potter Stewart: Be aware of, do you know?
Jack L. Lessenberry: In their brief. On page 69, I'm almost positive, this is their -- rather, this is -- no, it's not -- that's not it, it's under .2d --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: They say that this Court has been accidental in defining what state action is, and they asked --
Arthur J. Goldberg: (Inaudible)
Jack L. Lessenberry: Yes.
Arthur J. Goldberg: That's the way I understand it.
Jack L. Lessenberry: And they suggest if you enlarge it to mean individual action that you can be sure that by such meanings. I denied if they can. They go on to say that beginning once made, these cases present no problem for they are very long way at the line. Thus petitioners candidly give us a peek into the twilight zone of what they would suppose the law to be. And of course, this would mean that mezzanine tearooms were a very long way from that line. This is too forebode -- foreboding to me the constitutional rights of others should not be drowned in such shallow stream to afford a footstone to go into this wilderness of legal entanglements. One concluding remark, much has been said about the rights of property and property rights as opposed to personal and individual rights. I submit to you that a table or a chair or an acre of ground or even a facility does not possess any rights. It's the owners of those properties that have those rights. We can't say that they're not individuals, not citizens of this nation that have property rights to be sustained. The -- these rights cannot even be compared, because I don't believe that petitioners have shown constitutionally or otherwise that there is an actual right of the petitioners here to be protected.
Hugo L. Black: Did the court -- I believe they charged, are these the only charges? Those that appear -- is all the charge in the record the court charged to the jury? What I'm ask -- what I'm interested in, did he make any distinction between finding them guilty of not leaving on the basis of their color and on the basis of what you've been arguing if they came with a good big group, people have sent out or stayed there and blocked access or whatever you call it?
Jack L. Lessenberry: Well, I never mean to say they blocked access. I mean, they were just -- when you went to the tearoom, there they were, they weren't scared about it. They didn't block access Mr. Justice Black.
Hugo L. Black: Was there any such issue raised before the jury or any courts' charge or by the state?
Jack L. Lessenberry: No. The only thing I understood and I thought it was filled out a little more elaborately to the charge to the jury that were these petitioners guilty of refusing to leave a business establishment after being requested to do so by the manager. There wasn't any race involved in the charge to the jury and --
Hugo L. Black: Was there any distinction drawn by written charge or anything else that you called the jury's attention to the facts that if it was done in the kind of race, it was wrong, and if it was done for some other reasons, they can be convicted. Was there any such charge requested by either side?
Jack L. Lessenberry: I can't honestly answer that Mr. Justice Black. I would assume and believe knowing the prosecutor Mr. Justice Holt that he simply prosecuted this case fairly and impartially without any reference at all to color. I can't imagine that we don't have the issue of color here simply through the oversight of the defense attorney. I don't think it would've made any difference to the jury or it would've made any difference to the prosecutor. I think we're inferring too much to say, “Well, the fact that this wasn't forcefully brought out that he refused them service because they were Negroes or that there was a conviction because they were Negroes, is an unwarranted inference”. It's an assumption should not be made. They were two imminent -- very qualified Negro attorneys representing them in that trial and they were -- and I believe to my way of thinking, very able to brong -- bring out a point of race if it had in fact been true.
Hugo L. Black: But the issue was raised by the defendants in a motion to quash, what was then --
Jack L. Lessenberry: Yes.
Hugo L. Black: -- that motion to quash?
Jack L. Lessenberry: Well, I know you don't want me to say it was overruled because you know it was overruled.
Hugo L. Black: But I mean what happened in connection with it? Were they declined the right to offer evidence on that claim?
Jack L. Lessenberry: No, at least I don't know that there were. The record doesn't sustain it. They could've offered any evidence whatsoever. It's remarkably like Carter v. Texas where a man files a motion for new trial and says that there's jury discrimination and your petty jury panel, but I'm not going to offer any proof. They didn't restrict him from offering proof on this. A record would've been made at that. This is Little Rock and the Circuit Courts there are fairly, I believe enlightened and sophisticated place.
Hugo L. Black: Well, they swear to believe the issue (Inaudible) and motion to dismiss that I'm talking about (Voice Overlap) --
Jack L. Lessenberry: On the basis of race, yes sir.
Hugo L. Black: -- as applied to them, this would be bad because it attempted to discriminate against them wholly on account of their color.
Jack L. Lessenberry: Yes. I agree that it did. The motion did but there wasn't any proof in the record though, nothing that I know of. I certainly appreciate the courtesies of the Court had given me and extended me and if there are no other questions, I'll take my chair. Thank you.
Constance Baker Motley: I rise simply to point out those places in the record where the manager testified as to the time which elapsed between the time he asked them to leave and he got the police and came back. On page 47 on direct examination, he was asked by the state's attorney. Question, “About how long would you say you were gone from when you left to go to get the officers until you came back? How many minutes would you say approximately?” Answer “Oh, two or three minutes I guess, perhaps five no more”. And then on cross-examination by these petitioners' counsel, he was asked that question again and he was asked this question by Mr. Anderson.
William J. Brennan, Jr.: What page is this?
Constance Baker Motley: Page 51, I'm sorry, I didn't mention the page. The first page was page 47, and now on page 51 on cross-examination, “You say it took three minutes to go down and get the officers, is that correct?” Answer “Something like that”. So that was gone over with the manager and locations as to the time element involved. And then the manager seems to be quite sure that there were only five Negro boys involved here. On page 46 of the record, he states what he observed and he said, “There were five Negro boys”. And then again on page 51, again on the cross-examination, he was asked “Now, again, how many colored men were there?” Answer “Five”.
Hugo L. Black: What is the relevance of that to your argument, would you mind --
Constance Baker Motley: Well, I was simply pointing out that the -- there were some questions from the Court as to what time elapsed before the manager returned on the question of whether they were leaving the store as the officers came in whether they left the lunch counter. And it seems relevant that they did by this testimony, leave immediately upon being requested to do so.
Hugo L. Black: Is that on the premise that it would -- there's no evidence to show that they left --
Constance Baker Motley: That they refused --
Hugo L. Black: -- that they remained and --
Constance Baker Motley: That's right --
Hugo L. Black: -- refused to leave after --
Constance Baker Motley: That's right.
Hugo L. Black: -- being directed to do so --
Hugo L. Black: That's right, on that question.
William J. Brennan, Jr.: Is that a (Inaudible) rule argument?
Constance Baker Motley: Yes. Now, the other issue --
Hugo L. Black: Now, is there any evidence to the contrary of that to which you --
Constance Baker Motley: No, there is no evidence to the contrary, that is there's no evidence that they just stayed there and persisted and would not leave the place altogether. This tends to show that they were requested to leave and they came out of the lunch counter and were out of the way. They're on their way out of the store. Now, the second point as to how many were there, it was pointed out for this reason that there's a suggestion that they were not denied service because of their race, but because there was a large group of men demonstrating, and the manager did not have that impression at all. He testified twice that there were only five and he emphasized Negro boys again to make the point that this was a denial on account of their race.
Hugo L. Black: Do you think the record justifies an argument along the lines that was made that there was evidence to show that despite the fact that it might have been racial discrimination the real reason they were ordered out was because they were in numbers and at a place that interfered with the business quite apart from their race?
Constance Baker Motley: No sir, there's nothing in the record at all --
Hugo L. Black: Do you think there's no --
Constance Baker Motley: -- to indicate that --
Hugo L. Black: -- issue on that and --
Constance Baker Motley: No sir.
Hugo L. Black: -- nothing in the record?
Constance Baker Motley: There's no issue on that and the business of the lunch counter being limited to women or patronized predominantly by women is no where in the record.
Potter Stewart: The Supreme Court of Arkansas certainly accepted your version of the facts didn't it, and stated that --
Constance Baker Motley: That's right. They were not misled as to what this denial was based on. They stated it emphatically that all of these cases were sit-in demonstrations involving Negroes denied service on account of their race.
Potter Stewart: On the other hand, the record doesn't show that these were demonstrations. It shows affirmatively to the contrary, doesn't it? These people said they didn't know each other before and --
Constance Baker Motley: Yes, they -- there was testimony to that effect, but I think that they did go there for the purpose of attempting to secure service which they probably understood would be denied because of their race. I don't think there's any question that they went there to try to end the policy of discrimination.