Warren E. Burger: Number 85, Association of Data Processing Service Organizations against Camp. Mr. Gross, you may proceed whenever you’re ready.
Bert M. Gross: Mr. Chief Justice and may it please the Court. In the present case, this Court is called upon to resolve a direct conflict between the Courts of Appeals for the Eighth Circuit and the First Circuit regarding a threshold question of standing to sue. Now, this case arose in the District Court for the District of Minnesota and it was dismissed upon motion and before trial on the grounds that the petitioners lack standing to maintain this litigation. This ruling was affirmed by the Court of Appeals for the Eighth Circuit and about the same time, a substantially identical case arose in Rhode Island and the Court of Appeals for the First Circuit reached a precisely opposite result that petitioners in that case do have standing to maintain this particular type of litigation. This case arose from the Eighth Circuit. The First Circuit case is presently pending on petition for certiorari. The facts in this case are limited to the complaint because the case was dismissed on motion prior to trial or pretrial. The petitioners were the plaintiffs and they are the Association of Data Processing Service Organizations, which is a trade association of businesses engaged in rendering data processing services to the general business community. The other petitioner is Data Systems Incorporated, a Minnesota corporation, a member of the association, which is referred to as ADAPSO and Data Systems is engaged in rendering data processing services in the Minnesota. Respondents are the American National Bank and Trust Company of St. Paul, a National Bank and the Comptroller of the Currency. The facts alleged that Data System was engaged in the data processing business in Minnesota and that the American National Bank was similarly engaged in the data processing business. And as a matter of fact, the Data Systems had agreed to perform certain services for particular customer, it later turned out that the customer began doing business with the American National Bank. There is no question about that. The complaint alleged that the action of the American National Bank in performing data processing services was unlawful and that it violated the powers given National Banks under the National Banking Laws. The complaint asked for declaratory relief that the bank’s action was unlawful. It asked for injunctive relief and it asked for damages. The complaint also asked for declaratory relief that the Comptroller of the Currency was acting unlawfully when he authorized National Banks to engage in the general data processing business. The Comptroller’s authorization is found on page 2 of petitioner’s brief and it’s in a paragraph of the Comptroller’s Manual for National Banks, which states as follows. “Incidental to its banking services, a national bank may make available its data processing equipment or perform data processing services on such equipment for other banks and bank customers. The last three words that if the banks assume authority to do this fatal activity. Now, in our brief --
Byron R. White: They might have had it without that regulation.
Bert M. Gross: If they have --
Byron R. White: Let’s assume that it just started out doing it.
Bert M. Gross: If they have authority under the acts of Congress Your Honor, they would not need the specific authorization.
Byron R. White: So the question is the statutes?
Bert M. Gross: That’s correct, the question is statutory authority. In our brief, we raise the general question of standing to sue. We have discussed the so-called the legal right theory, the requirement that a plaintiff must have a legal right to have standing to maintain an action of this nature. This rule was probably most prominently announced in the case of Tennessee Electric Power versus TVA in 306 United States’ reports, but this was not the issue that divided the Courts of Appeals where the First and the Eighth Circuit and I would turn to that narrow issue which did divide the Circuits and that’s he question of statutory aid to standing. The rule generally maybe stated that that if a competitor can show that a statute was intended to protect his competitive or economic interest then he has standing to complain of unlawful competition. And we believe that the statute is applicable in this case, and that statute is the Bank Service Corporation Act. That’s found in 12 United States Code, Section 1864 -- the relevant portion is quoted in our brief at page 2. This is a 1962 statute. It is therefore extremely important to examine the legislative purpose of the Bank Service Corporation Act to decide the scope or the protection before the data processing industry. The basic purpose of the act is undoubted, it was to allow smaller banks to achieve more effective competition against larger banks by joining together to invest in bank service corporations subsidiaries. Two or more banks that can now join together to form a bank service corporation which will render data processing services for the banks such things as sorting checks and reconciling statements that sort of thing. Prior to 1962, it was felt that banks could not invest in corporations of this type. So the basic purpose was to authorize National Banks to join together in this function. Now, the question that properly came up as to the extent that bank service corporations could engage in the general data processing of business. And the compromise or result reach by the House of Representatives which have the bill initially was to permit bank service corporations subsidiaries to perform the services for a non-bank customers to the extent of one-half of their total activities, but not to exceed one-half of their total activities could be performed for a non-bank customers. When the Bill got to the Senate, certain senators were not satisfied with even this restriction and a minority report was issued by the Senate Banking and Currency Commission or Committee. Senators Proxmire, Neuberger and Douglas issued the report criticizing the one-half limitation as being excessive, that’s found on our brief on page 33. Excerpts from that report, I’ll read the Court one sentence and this is the basic point of the minority report. They stated that adequate justification has not been demonstrated for extending this exemption to permit banks to engage in the business of data processing which this Bill permits up to 50% of the total activity of a bank service corporation. Senator Proxmire went further. He introduced an amendment on the Florida Senate to prohibit bank service corporations totally from engaging in data processing services for non-bank customers. And there could be no question as to the reasons for Senator Proxmire’s amendment. He was perfectly clear on the reasons and they were to protect the data processing industry. On page 35 of our brief, we have quoted from certain remarks of Senator Proxmire and I’ll read a few sentences so that the Court can see exactly what the senator was driving at with his amendment. He stated that banks have customer lists and they can offer their customers for instance for service of handling their receivables which would give the banks a substantial advantage over other legitimate long established business providing this kind of service. A number of these businesses have informed me and other senators that this kind of competition would be very unfair. It would be unfair because the banks could use their own personnel charged merely the out-of-pocket cost and the unfair competition could drive businesses now offering this kind of service to the (Inaudible). These are the reasons why I offered this amendment with the adoption of the amendment, I think we are in a position to have a bill that provides what the banks really want, what the members of the committee feel is justified and at the same time safeguard legitimate business enterprises which might otherwise be put out of business. The Proxmire Amendment passed and the Bank Service Corporation Act is presently enacted in the law states as follows: no bank service corporation may engage in any activity other than the performance of bank services for banks. We believe that this case requires in unique fashion and interpretation of the scope of the so-called statutory aid to standing a doctrine. In previous cases, courts have been faced with the question of whether a statute was designed to protect the competitive interest. If the statute was designed to protect the competitive interest, then the court held that the protected competitor had standing to maintain his litigation on the merits. On the other hand, if the statute for constitutional provision was not so designed and was not intended to offer protection to competitive interest, then the competitors were held not to have standing. Or in this case, we have a situation that is not occurred before to the best of our research and the respondents cited no cases showing a situation where there is an undoubted congressional purpose to protect a competitive interest, but from a source of competition which is slightly different although closely related to the actual source of competition. Here, we’re dealing with competition by a National Banks themselves. The statute according to its words was -- says that no bank service corporations subsidiary shall engage in data processing activities. So, we have the situation where it appears to us that respondents are arguing this file. Assume that Bank A and Bank B get together to form a subsidiary Bank Service Corporation Act. That corporation begins to engage in activities, which appear to be data processing for the general business community. In that situation, we must assume that a competitor like the petitioner has standing. However, assume that Bank A and Bank B instead of forming a subsidiary corporation decide on their own individually to offer the same type of data processing services. The respondent says, “There is no standing because there is no statutory aid to standing.”
Byron R. White: Under your view of the standing issue, would you, would be not reach the merits namely the question of the authority that comptroller to authorize?
Bert M. Gross: No Your Honor, not in this situation.
Byron R. White: A case should go back to the Court of Appeals.
Bert M. Gross: A case would go back for trial. Now, we can assume that even further where the bank service corporation access that have two banks get together to form the subsidiary on one bank leaves and withdraws that the other bank -- the other individual bank may carry on with the bank service corporation. So, we have a situation of one bank having a bank service corporation subsidiary which if it engages in data processing activities now the petitioners can attack. And yet, if the parent corporation engages in the self same activities, there is no standing according to the respondents. We feel that this is an effort by the banks and by the Comptroller of the Currency to adopt the very broad and expensive interpretation of the restrictive doctrine of standing. And we feel that they are pushing the doctrine of standing beyond any reasonable purpose. The rules of standing have the effect of preventing an inquiry into the merits of litigation. And we feel that rules that have this effect of preventing reaching the merits should be rather narrowly and restrictively interpreted and in close cases, the doubt should be resolve in favor of reaching the merits particularly where the merits are important and the merits are important and not this type of bank case is important to the banks. It’s important to petitioners and it has important implications.
Byron R. White: What bearing do you think the Flast case has?
Bert M. Gross: Your Honor, I feel that Flast v. Cohen shows a philosophy of standing that would grant standing in this case. The facts of course in the situation are different but Flast versus Cohen has a philosophy of inquiring into the personal interest of the petitioner. It inquires into the concrete adverseness of the parties whether the case is informed in appropriate form for judicial resolution rather than seeking to find some undefined legal right. If you look at the factual adverse interest, if you look at the type of case, if you look at our case through the view Flast and Cohen there clearly is standing. These people are adverse under any test, petitioners have been harmed undeniably at this juncture of the case they have been harmed. They alleged they’ve been harmed and their complaint was dismissed before trial. The case is appropriate for a judicial treatment, we ask for the interpretation of a statute of Congress. We think the competitors in this situation are the best persons to try the merits to this litigation and probably the only persons, we feel that the merits it’s unlikely that the merits will ever be reach if a competitor does not bring this type of litigation. So, we feel that under Flast versus Cohen, we do have standing, we have adversity, we have this personal state, we have a concrete case, and in addition, we have important issues on the merits and finally we have a statute of Congress where Congress clearly was trying to protect the data processing industry from a type of National Bank competition. This is what the First Circuit felt was sufficient for standing and this is what we believe this sufficient for standing.
Potter Stewart: Well, suppose there are some trial cases of the court that would have been decided differently under your theory?
Bert M. Gross: Not under the narrow scope of statutory aid to standing Your Honor under the broad --
Potter Stewart: You mean they -- we must -- for you to win, must we buy the bank service corporation approach?
Bert M. Gross: No, we have two basic issues Your Honor.
Potter Stewart: You’re saying that it isn’t enough for standing just to show an economic injury?
Bert M. Gross: I think it is if you overrule about three to four cases of this Court.
Potter Stewart: Are you urging that we do that?
Bert M. Gross: Yes, Your Honor and in our brief we have set forth that rather extensively. And we don’t believe that Tennessee Electric Power is an adequate type of case and adequate determination of this issue. We think it should be a bond.
Potter Stewart: But accepting those cases, you still think you have pending in this case?
Bert M. Gross: Yes, following Tennessee Electric Power, we think we have standing under the doctrine of statutory aid to standing.
Potter Stewart: When the statutory aid is under the bank service corporation?
Bert M. Gross: That is correct.
Potter Stewart: That’s the only source?
Bert M. Gross: That’s the only statute we rely on, Your Honor.
Speaker: What you say is there is enough (Inaudible) Bank Service Corporation Act is a separate act, is it not the measurable (Inaudible)?
Bert M. Gross: That is correct Your Honor. We feel that the Administrative Procedure Act bears on this issue too -- in part. Now, the judicial review provisions of the APA are familiar. It reads that a person suffering legal wrong because of agency action or adversely affected or agreed by agency action within the meaning of a relevant statute is entitled to judicial review there. We feel that the Bank Service Corporation Act is a relevant statute under the APA and we think that reading the APA in conjunction with the Bank Service Corporation Act there certainly is standing. The Bank Service Corporation Act is relevant because it bears on this problem, it was an undoubted congressional, a response or effort to protect data processors. For this reason, we feel it is relevant.
Byron R. White: Does the First Circuit decision follow the decision of the Eighth?
Bert M. Gross: The First Circuit was after the Eight Circuit, yes.
Byron R. White: It was after?
Bert M. Gross: Yes, it was Your Honor.
Byron R. White: The argument you’re now making is addressed with the Eighth Circuit?
Bert M. Gross: It was Your Honor. It was addressed in our brief and further prominently displayed. It was not argued --
Byron R. White: Today you dismissed it simply by saying under those circumstances.
Bert M. Gross: In a footnote, Your Honor. So, we feel that under the Bank Service Corporation Act and under the Administrative Procedure Act not along by the Administrative Procedure Act, but that act read in conjunction with the Bank Service Corporation Act. There are certainly is enough congressional protection afforded to data processors to give them standing to reach the merits of this case.
Warren E. Burger: Mr. Rosenthal.
Alan S. Rosenthal: Mr. Chief Justice and may it please the Court. Over a period of almost 90 years beginning with its decision in 1882 when Railroad Company against Ellerman. This Court has consistently in here to rule that where as is concededly the case here. There is no special statutory provision for judicial review. The complainant seeking to attack governmental action which does no more than increase competition against him or show that he possesses a legally protective right to be free from that competition, now the court has further made it clear that it is also true in this case. No such legally protected right is conferred by license or franchise. The plaintiff must be able to demonstrate that as this Court put it just two terms ago in Hardin against Kentucky Utilities. The particular statutory provision invoked reflects a legislative purpose to protect the competitive interest. If but only if such a purpose appears to again call it from Hardin, the injured competitor has standing to require compliance with that provision. Now, notwithstanding the present reliance petitioners upon the Bank Service Corporation Act to which I will turn in a few minutes. The fact remains that its complaint invoked only the incidental powers clause of the National Bank Act. Provision of 12 U.S.C. 247 which authorizes National Banks to exercise “such incidental powers shall be necessary to carry on the business of banking.” Specifically, as petitioner’s complaint reflects their attack upon the Comptroller’s ruling that National Banks may provide data processing services to other banks and bank customers was based exclusively on the proposition that such services do not come within the purview of the incidental powers clause.
Speaker: Is that pleading the argument to a fatal argument, is that a fatal thing likewise?
Alan S. Rosenthal: Well, I think it is fatal Mr. Justice Harlan from this point of view for the reason that they cannot as they do not assert that the conduct which they are seeking to enjoin violates any statute but the National Bank Act.
Speaker: Yes, well of course as far as the pleading issue is concerned, the Court of Appeals did notice it in the footnote rule against?
Alan S. Rosenthal: That’s right.
Speaker: But they didn’t rely on the pleading defect.
Alan S. Rosenthal: No, it is the matter Your Honor of a pleading defect. The point is that their complaint alleges a violation of the National Bank Act for the good and sufficient reason that that is the only Act.
Speaker: Which you’re saying?
Alan S. Rosenthal: Which they could claim have been violated, it wasn’t that any inadvertent failure to allege a violation of the Bank Service Corporation Act.
Speaker: What you’re saying is it’s a change of theory or the -- what do you call the additional theory that came to counsel’s mind after the (Inaudible)?
Alan S. Rosenthal: Well, what I'm saying Your Honor is that they seek to base their claim of standing upon a statute which they cannot claim has been violated. That’s essentially what it comes down to and not only --
Speaker: If your basic provision on standing is right on your brief is that you got to reach the merits of this case now to give you standing?
Alan S. Rosenthal: No, Your Honor, that is not our position.
Speaker: Why not?
Alan S. Rosenthal: Our position is that they lack standing irrespective of whether the National Bank Act precludes banks from engaging in the activity which they seek to enjoin. Our position rests upon this proposition that even if it could be said on the merits that Section 247 precludes the activity of which they complain, the fact remains that Section 247 was not enacted to protect any competitive interest of these petitioners or any other potential competitors of National Banks. And that for this reason under the federal standing doctrine, Ellerman, Tennessee Power v. TVA, the Hardin case is the last expression of the court that they lack standing that they would only have standing if they could show not merely that the statute was violated but then it was intended to protect a competitive interest over theirs.
Speaker: Well, who could adopt the statute under -- who could raise this question?
Alan S. Rosenthal: I would think in the circumstances -- present circumstances, the action on the part of a bank in violation of the act could be challenged by bank’s supervisory authorities. It is possible that with respect to some provisions of the National Bank Act which might have been designed to protect possibly the solvency of banks that their depositors or customers might have a standing -- or shareholders.
Byron R. White: Or shareholders in any event, wouldn’t they?
Alan S. Rosenthal: I would think so if the shareholder again could establish as I think he would very like to be able to in many instances at least that the provision which was being violated by the bank was intended to ensure the solvency of the bank. Additionally, if Your Honor pleases, any time that the Congress sees fit to insert in this statute a person aggrieved provision. Review would be available at the behest of people who would qualify as persons aggrieved. The Congress has not chosen to close these petitioners with the status of essentially private attorneys general.
Hugo L. Black: Your position makes it very hard doesn’t it for anyone to attack except in government agent.
Alan S. Rosenthal: Your Honor, there are areas -- many areas in which the superintendence of compliance with statutory mandates rest with the Congress itself.
Hugo L. Black: Well, then what do you say to the question that I asked you, doesn’t it make it almost impossible?
Alan S. Rosenthal: I would think in this instance --
Hugo L. Black: Anybody could challenge it except the bank officers of the superintendent of banks himself?
Alan S. Rosenthal: I would think Your Honor with respect to this particular provision there are few individuals would have standing to attack the provision. That’s correct.
Warren E. Burger: With the stockholders -- With the stockholders, the bank stockholders?
Alan S. Rosenthal: Yes, stockholders well might but certainly --
Warren E. Burger: On the basis of ultra vires or somewhere to analyze?
Alan S. Rosenthal: Yes, I would think it’s quite possible the stockholders would but in the realm of competitors, the realm of individuals such as these petitioners who are complaining of competitive activity in the part of the banks. Their remedy lies with the Congress to which they have gone repeatedly. But before and after, the passage of the Bank Service Corporation --
Warren E. Burger: Well then are you telling us that that’s the way Congress wants it?
Alan S. Rosenthal: That’s precisely what I'm suggesting to the Court that the -- again the ADAPSO itself has been before the Congress. It has sought after the Bank Service Corporation Act was passed to have Congress specifically preclude data processing service activities on the part of banks except as they related to the internal operations of the bank. They have also called the Congress’ attention, the absence of a judicial review provision and the necessity for such a provision. And to this point those pleas have fallen on deaf ears. Now, we say it is quite appropriate for the Congress to decide whereas here there is no legally protective right of the petitioners being invaded appropriate to the Congress to decide, the extent to which it wishes to deputize these petitioners or any other class as private attorney’s general to enforce what they say is the public interest and compliance with the National Bank Act.
Hugo L. Black: May I ask you a question, again, assuming that they are right and that Congress has made it unlawful for these banks to do exactly what they have charge for duty and did it in order to protect competitors, is it your position that nobody cannot challenge it except the bank examiner?
Alan S. Rosenthal: No, Your Honor. It’s my -- if Congress had done this for the protection of competitors then under the established standing doctrine, the latest decision being Your Honor’s decision --
Hugo L. Black: That’s their argument in Hardin.
Alan S. Rosenthal: In Hardin, but we insist if the Court pleases that the restriction which they seek to enforce -- the restriction of the National Bank Act was not intended to protect a competitive interest and indeed they don’t argue to the contrary, they have never suggested either on the lower courts or in this Court that the purpose of the --
Hugo L. Black: I misunderstood the argument here.
Alan S. Rosenthal: No, their contention is that in the Bank Service Corporation Act specifically with relation to Section 4 of that Act that Congress manifested an intent to protect data processors from the kind of competition of which their complaining.
Hugo L. Black: Assume that that’s true, let’s assume it was passed for that purpose, is it still your -- and it maybe said, I'm not saying it’s not. I want to get just how far it goes. It’s still your argument notwithstanding express as that of Congress to give this kind of competitors a protection that none of them can raise it?
Alan S. Rosenthal: No, that’s not my argument Your Honor. If the Bank Service Corporation Act in this legislative history manifested a congressional intent to protect data processing service companies from competition on the part of National Banks, then I would certainly agree that under the teachings of this Court is recently again in the Hardin case standing what exist. What we say is that the -- there isn’t a job or syllable in the legislative history of the Bank Service Corporation Act to indicate any congressional intent to protect the bank service corporations from the competition of which they are complaining here. Now, the legislative --
Hugo L. Black: Let me ask you the question of my brother Harlan asked you a little bit ago, if that’s the case, aren’t you saying that we have to look at this Act in order to see whether that was its purpose to decide standing?
Alan S. Rosenthal: The only extent that you have to look to the Bank Service Corporation Act begin in response to Mr. Justice Harlan, I suggest that we did not need to reach the merits of this controversy because the merits are of course are in terms of an alleged violation of the National Bank Act. And it’s not necessary to reach that question whether or not the National Bank Act has been violated in order to decide standing. Now, with respect to the Bank Service Corporation Act, the only thing that is required is to examine this legislative history and to determine whether the Congress was intending by that Act to any extent to protect a competitive interest of data processing service companies against National Bank competition.
Speaker: Now, supposing this would arose under the Bank Service Act, is your question standing?
Alan S. Rosenthal: If this was an attack upon a Bank Service Corporation Activity, I think the standing question would be much closer. I say that --
Speaker: Well, it would be fairly against you?
Alan S. Rosenthal: I don’t think so Your Honor for this reason.
Speaker: Why not?
Alan S. Rosenthal: Because the only statement in the entire legislative history of the Bank Service Corporation Act which manifested any concern for the protection of data processors was the statement on the floor by Senator Proxmire. Now, this Court has questioned before --
Speaker: What about the provision itself?
Alan S. Rosenthal: Well, the provision itself could have been for many different reasons. In the congressional mind, the provision itself might have been a gain because of the feeling that Bank Service Corporations in the general public interest without relation to any specific competitive rule should not be engaging in activities other than the providing of Bank Services to banks. There’s no way of really telling what of many possible approaches there might have been, but this much is clear. We’re dealing with National Banks here, Congress in connection with the Bank Service Corporation Act both banking and currency committees, both the Committee in the House and the Committee in the Senate were specifically apprised of the fact that National Banks were engaged in this activity. Now, if there was some concern --
Hugo L. Black: Was it hard for you to tell a man who doesn’t know all about bank services what bank services precisely what bank services involved? The banking service company, what is it?
Alan S. Rosenthal: What is the Bank Service Corporation itself?
Hugo L. Black: How they do it again? Or exceed who the competitors are?
Alan S. Rosenthal: Well, there’s no bank service corporation involved in the present case Your Honor. The --
Hugo L. Black: But it’s a bank. It’s right it’s a bank. What are the bank services that are being performed that they object to?
Alan S. Rosenthal: The bank services -- well, what they seek to enjoin as being outside of the scope of 247 is the providing of Data Processing Services to customers of the bank.
Hugo L. Black: What are the data processing?
Alan S. Rosenthal: With what kind of services?
Hugo L. Black: Yes.
Alan S. Rosenthal: Well, they would include for example putting a company’s payroll through a computer. It’s the kind of record in the bookkeeping type of services which today are provided in most up-to-date business establishments signed an automated basis.
Hugo L. Black: That’s precisely what’s involved.
Alan S. Rosenthal: That’s correct, that is correct. But the -- getting back if I may just for minute of the legislative history of the Bank Service Corporation Act is unreasonable to assume that had there been this concern that petitioners insist existing regarding competition on the part of banks themselves -- the National Banks in particular with data processing service companies, that Section 4 would not have been cast as it is solely in terms of bank service corporations but what have embraced banks as well. An important fact, Section 5 of the Act does deal with banks in a completely of course unrelated context. Now, we see and think it is very difficult for petitioners to seriously argue here. Even though the statute which they claim is being violated, the only statute National Bank Act was not intended for their protection and I admit this, implicitly at least, that they have standing to complain violations of the National Bank Act on the basis of a statute which is on its face does not apply to Bank Service Corporations. Circumstances where the Congress that both congressional committees were informed the banks were engaging in this activity and not only does the Act not refer to banks in this context, but there wasn’t one single suggestion and the committee reports of either committee that this was an activity which should be legislated the case.
Speaker: What was the original motive for that that led to the bank services?
Alan S. Rosenthal: The motivation for the Act? It was considered in 1962 both by the Comptroller of the Currency and The Federal Reserve Board that a bank was precluded, absolutely precluded from owning stock in another corporation. The purpose of the Bank Service Corporation Act was to enable banks to invest to these bank service corporations so that banks particularly small ones could combine to obtain the advantage of among other things automated facilities which individually they could not have purchased. The whole basis of the --
Speaker: The whole motivation of the --
Potter Stewart: Excuse me, I don’t mean to interrupt you.
Alan S. Rosenthal: Well, the motivation of the act indeed was to provide assistance to banks not to impose any kind of restrictions that were not already there. And I think that Representative Malter who is a senior member of the Banking of Currency Committee really admonished against the kind of approach which the petitioners advance here and the quotation which appears in the amicus curiae brief of the American Bank Association on page 12. I won’t read the quote, but he specifically indicates that he wants to make it abundantly clear that this Bill was not intended to go outside the very language appearing in the Bill and he goes on to say that it will not interfere with any authority now invested in banks and that it simply sets up a new means by which individual banks can acquire these additional services. Now, it was in part in parcel of the conferral of this benefit upon banks if this restriction was put in which was -- limits the bank service corporation to performing bank services for banks.
Potter Stewart: Now, what was the motivation to that Section 4 to narrow my brother Harlan’s question a little bit? I have in mind the -- what Judge Bailey Aldrich says about its motivation. I haven’t independently looked at the legislative history but he says it’s very clear to him that that motivation came from the National Society of Public Accountants who were afraid of the competition (Voice Overlap)
Alan S. Rosenthal: It may have been that it was initially spearheaded by that rule, but I think Your Honor pleases that the actual motivation of the congressional adoption of this provision was to just get that Bank Service Corporation Act through, it’s a form of compromise that --
Potter Stewart: But your compromising was what interest on the other side?
Alan S. Rosenthal: Well, I don’t think that there is any indication of beyond the Senator Proxmire of an interest in data processing service companies. But even so the interest was reflected only in the context of the activities of the bank service corporation itself. Now, I wish to stress again that as said out in some length in the amicus brief of the American Bank Association there have been several bills for the Congress since 1962 in which they -- there has been in connection with which there has been a request usually spearheaded by ADAPSO that there be a prohibition directly impose on banks with respect to data processing service activities.
Warren E. Burger: Has any committee report of the Congress said in substance what Congressman Malter said in the quote that you referred to?
Alan S. Rosenthal: Well, I think that the thrust of the committee reports, I don’t recall Mr. Chief Justice whether there is a specific statement in the committee reports to that effect. But the whole thrust of the reports of the two Houses, the majority views particularly I wish to stress that the petitioner is here from the statement which I quote from the supplemental minority views that they according from a minority view and even there it doesn’t go in really to the matter of protection competitors but simply solvency. But the whole thrust really the majority views of the two committees is that this is an Act which is designed to legislate in the area of bank service corporations and not in any other area. And we think that it is really is not appropriate basis for carrying over this statute into another area and allowing it to be used as a statutory aid standing to question activity under a statute which was not intended to protect the competitor who has bring the challenge.
Potter Stewart: Mr. Rosenthal, as I understood you in an answer to a question by Mr. Justice Harlan, you said that if the facts of this case were that a bank service corporation was performing these services for a hardware store directly that these petitioners would still not have standing?
Alan S. Rosenthal: No, Your Honor, I suggested that possibility. Well, I meant to say was that that would be a much closer case. There, if they well might be found to have standing. And on the other hand, there’s an argument at least that they would lack standing. It was not a gain I wish to stress it’s a completely different situation than the one which is before the Court here where they are not invoking as the basis of complaint of the legality of that Act, some other statute. Now, I would only add have if the Court pleases that for the reasons that are detailed in our brief, we do not believe that there is any reason why this Court should suggest -- excuse me, should adopt the alternative suggestion of petitioners that the rule of Ellerman, Tennessee Power, and Hardin be discarded. We think that that rule does not as petitioners suggest -- would suggest we think the rule does not leave the public interest unprotected. We think what it does do is leave it to the Congress inappropriately so to determine where superintendence of the administrative action should be when those circumstances where the claimant can point to the invasion of no legally protected right. We think that fundamentally what the role of the Court is -- the proper role of the Court is the -- that of a guardian of legally protected rights and interests. We think that outside of that realm, it is perfectly appropriate for Congress to make the decision as to whether it wishes the courts to extend judicial review to those who’s like these petitioners it can claim solely aggrieved in the fact.
Speaker: Mr. Rosenthal, do you think Flast v. Cohen (Inaudible)?
Alan S. Rosenthal: Flast and Cohen Mr. Justice Harlan, we believe to be fully consistent with the standing cases upon which we rely. In Flast and Cohen -- against Cohen, this Court held that in so far as the Article 3 requirement of the case of controversy is concerned that it was enough that there be a substantial personal state. But the Court there was confronted with a situation where there was obviously a legal right involved as the Court construed the First Amendment. They -- that individual has a right legally protect the constitutionally protected right to be free from having his tax moneys expended for in the furtherance of a religious purpose. And I would only add that in just last June, this Court in Jenkins versus McKeithen, as the opinion of Mr. Justice Marshall specifically indicated referring to Flast against Cohen that something more than adversary interest is necessary to confer standing. There must be an addition, some connection between the official action challenge and some legally protected interest party challenging that action. And while Mr. Justice Marshall’s opinion again was for himself and two other justices as we read the concurring and dissenting opinions, there was no disagreement on this interpretation of Flast. And we would submit if the Court pleases that in this case, petitioners have not established requisite connection between the official action which they challenged the action of the Comptroller interpreting the National Bank Act and some legally protected interest which they possess. And as so far as the National Bank Act is concerned as they admit themselves competitors have no legally protected interest. For these reasons, we respectfully submit that the judgment of court below should be affirmed.
Warren E. Burger: Thank you Mr. Rosenthal. Mr. Gross, you have I think about 10 minutes left.
Bert M. Gross: Thank you. If the Court please, we cannot agree that assuming that we have standing to challenge the action of a wholly-owned subsidiary of a National Bank that we do not have standing to challenge the identical activity of the National Bank itself. We think that that cuts the doctrine of standing too fine. As far as the legislative purpose of the Bank Service Corporation Act, the respondents have stated that we only have Senator Proxmire statements as to the purpose for Section 4. But of course Senator Proxmire introduced this Section, he explicitly stated his reasons for doing so on and it was passed. There is another statement which we have quoted in the footnote on our brief at page 35 and this is from Senator Bush. Senator Bush said, “I join with the Senator that is Senator Proxmire in supporting the Bill. I think the Senator’s amendment is well taken. I think it is advisable to try the situation out at the bank level before we authorize banks to go into competition with other service organizations in providing the type of service kind contemplated here.”
Warren E. Burger: There you’re getting at the merits, aren’t you?
Bert M. Gross: No, Senator Bush is saying that again that we should not authorize banks to go into competition. We’re presenting this only for a statement of the interest that was trying to be protected that they were trying to protect the competitive interest. And this is what gives the standing, it is the congressional intent or purpose to protect competitive interest which gives the standing and we do not go into the merits at this time. As far as reaching the merits of the case and the question of whether or not the merits will ever be reached and who can reach the merits if we cannot. We frankly do not think that the Comptroller of the Currency is the -- is an adequate person to reach the merits to this situation. Number one, he has already decided that the banks do have authority under the statute. Secondly, and in a broader sense, there have been recently in the Court of Appeals six cases regarding entry by a National Banks into various areas of business endeavor which have not previously been considered traditional banking areas. From these six cases, four cases of the Court of Appeals held standing, two they held no standing. Of the three cases that actually reached the merits, two of the three held that bank action was illegal and all these cases, this action was authorized by the Comptroller of the Currency. So, on the merits the Comptroller is banning one out of three and the legality of bank actions and on these grounds, we think that judicial review is needed and this is a traditional function of the courts to decide the question of statutory interpretation. For these reasons, we repeat that we feel we do have standing in this case.
Warren E. Burger: Thank you Mr. Gross, thank you Mr. Rosenthal for your submissions. The case is submitted.


Earl Warren: Number 168, Fred L. Shuttlesworth, Petitioner, versus City of Birmingham. Mr. Greenberg.
Jack Greenberg: Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari to the Alabama Court of Appeals which is the intermediate appellate court in Alabama. Petitioner asserts denial of rights secured by the Fourteenth Amendment to the Constitution of the United States. The Alabama Court of Appeals ruled against him and the Alabama Supreme Court refused to review the case on the ground that petitioner's petition was filed on the wrong-sized paper. That is an ordinary legal cap paper instead of the folio paper which is in this record here. Petitioner was convicted in the Circuit Court of the Tenth Judicial Circuit for violating Section 856 of the Birmingham City Code which is set forth on page 2 of our brief. And this provision briefly provides that any person who knowingly opposes or resists any officer in executing or attempting to make any lawful arrest or in the discharge of any legal duty, and so forth, shall, on conviction, be punished as -- for a misdemeanor. The charge brought against petitioner was essentially in the language of the ordinance and the charge appears on page 4 of our brief and it charge that petitioner did knowingly and willfully interfere with and hinder the Chief of Police in the discharge of his legal duty. The Alabama Court of Appeals, however, affirmed on the ground, as petitioner reads it, that it did not have to reach the question of whether petitioner violated Section 856 because, as appears on page 60 of the record, it held, he had violated another section, Section 825, which we -- with which he had never been charged and that is the Section making an assault of crime. And it said that in as much as Shuttlesworth blocked the Chief's path using words from which the intent to do so in rudeness or anger could probably and rationally be inferred, there was no error in his conviction since he could have been clearly convicted of a simple assault. The petitioner's first conviction here is that there is no evidence to sustain the conviction below and that is no evidence either under Section 856 because petitioner, first of all, we submit, did not interfere with anyone and secondly, we submit, the police were not in the exercise of any lawful duty. And third, if the question of the crime of assault is in the case, as it was raised for the first time in the Alabama Court of Appeals. There was no assault under Alabama law as it has been stated heretofore because, as we read the Alabama cases, there is either a requirement of violence or an -- an attempt to commit violence of some sort. Or under the Alabama law of assault, as it has been defined for the first time in this case as involving some ingredient of rudeness and anger because on this record, in the words of the State's own witnesses, there was neither rudeness nor anger.
Speaker: (Inaudible) actual conduct out of which this (Voice Overlap) --
Jack Greenberg: Well, I was just about to come to that, Mr. Justice Harlan. The facts are not seriously disputed. There is some slight dispute between the parties but, for purposes of this argument, we will accept the statement of the facts as given by the police and most favorable to the State. May 17th, 1961, the Freedom Riders, which I believe need not be further described as the well-recognized acts that occurred around that time, the Freedom Riders were in the Birmingham bus terminal. Some of them had come from Nashville to Birmingham and were on route to Montgomery, Alabama. Some of the Freedom Riders were Birmingham residents and they were joining the national group and they were going to Montgomery, Alabama. All of the group had tickets, including the petitioner. He had a ticket and he had a suitcase. The Chief of Police came up to the group, and on page 15 and 16 of the record, what he said appears. I'll rapidly go through his testimony, he said, "When I got over to the bus station, I went through the bus station with some other officers and some superior officers, I believe Captain Wall and so forth. And I went out and told that group, that is the Freedom Riders, that group of people in a voice loud enough to be heard who I was. I identified myself and told them that due to circumstances that day that I, as Chief of Police, was arresting them and taking them into protective custody of the City of Birmingham. Then, he said Shuttlesworth came over. Now, this is the only dispute in the record. It's not terribly material. He said Shuttlesworth came over from a distance away and interjected himself. There, Shuttlesworth maintains he was there all the time and indeed, a captain of the police and a police officer also testified that Shuttlesworth was with the group all the time. But the dispute is whether Shuttlesworth interjected himself or had been there. Anyway, he said, "Shuttlesworth came over and I called him Fred, that -- called him by his name. I called him Fred. I said he was not concerned with what ws happening there and he walked around and got between me and some of those people. And I asked him again to go and he said if those people have to be arrested, why, he wanted to be arrested also." Now, the Chief said this on page 25 of the record. This took a very few minutes. There is a police officer who testified and took about a few seconds. That was the entire transaction. That was what supposed to have consisted of interfering with the police officer in the exercise of his lawful duty and then, later, this is supposed to have been an assault. Chief testified Shuttlesworth was not loud, he was not profane, he was not violent, and I think one thing that is absolutely clear about this case is that there was no violence, no threat of violence, no aggressive conduct on the part of this petitioner with the group with which he was at all. They submitted immediately to arrest. They were arrested and they were taken away.
Speaker: May I ask you -- can I ask you briefly (Inaudible) conviction on a charge which was never made against this man.
Jack Greenberg: Well, the Alabama Court of -- the Alabama Supreme Court wouldn't consider the charge because they said it was in the -- the petition said it was on the wrong-sized paper and that's something I hope to discuss in a few moments. The Alabama Court of Appeals, the lang -- I think the language would have to be read because, to me, Mr. Justice Harlan, it's not entirely clear. In part, it seems to indicate that since the penalty for assault and for interfering with the police officer in the exercise of a lawful duty are the same, it really didn't matter if he was guilty of it. In part, there seems to be intimation that this is an included offense in the doctrine of interfering with a police officer. And this -- the opinion of the Court of Appeals is very brief. I could --
Speaker: What page?
Jack Greenberg: 59 and 60 of the record. Now, it's our -- our first argument that, heretofore, we have been unable to find in Alabama law any such doctrine as protective custody, that the police were not in the exercise of any lawful duty when they were taking someone into protective custody. The Alabama Court of Appeals defines protective custody, and this is for the first time, as taking someone into custody when he voluntarily submits to it. But if anything is clear, these Freedom Riders had not voluntarily submitted to be taken into protective custody. They were arrested and so there was no voluntary taking into custody. And secondly, I think it's clear that Shuttlesworth did not interfere. He was speaking to the police officer, in the testimony of different witnesses, from a few seconds to a few minutes and he was merely very politely inquiring as to what was going on. He was with the group and he wanted --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, he said, "I was with them, if you're going to arrest them, you have to arrest me, too." I -- that, of course, was --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, Your Honor, that curiously was exactly the same thing that was the fact in Taylor against Louisiana which this Court reversed. The Freedom Riders were there and they said that, well, they had to be arrested. They were willing to agree to be arrested when confronted with the fact that, apparently, there was no alternative to it. And Shuttlesworth's position, I'd just like to briefly read from the Taylor case, the spokesman said, "We have no choice. Go ahead and arrest us." Now, it's essentially what happened. The language differs only very slightly. That bit of rhetoric under those circumstances doesn't constitute a crime. And I don't think that he could've been charged and convicted of a crime for having said in that situation, "I'm with them. Treat me the same way you treat them", but there was no reason to treat anyone in this way.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Yes, and they say that -- that constituted an interference. It's a -- an -- but it had to be an interference in the exercise of a lawful duty. I think it's obvious, there was no lawful duty being carried out here and -- and we would submit that this doesn't constitute an interference. It was a, "Just a moment. What's happening there?" And to merely ask a question of a police officer. The people -- as a matter of fact, the Freedom Riders had already been arrested at this point. The -- the duty, the lawful du -- the duty of the police or whatever they were doing had already been consummated. They were under arrest, at this point, when Shuttlesworth said, "What is happening here?"
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: What --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: I will say, Mr. Justice Goldberg, that the opinion is not clear to me. That, on the one hand, it appears to be that he was not harmed in any way because he also committed an assault and the penalty is the same. On page 60, they use assault as an offense included in 856, and that's at the second end of the second full paragraph, and so they say both. But that's the argument in Cole against Arkansas that we made. I think this case is clearly under Cole, but we would submit to this Court that this Court doesn't really even have to reach the Cole question because in Cole against Arkansas, this Court remanded it to the State Supreme Court for reconsideration as to what section the man was convicted under. The Arkansas Supreme Court reconsidered it and reaffirmed and then this Court affirmed, but that's not the situation here because there's no evidence to convict under interfering in the exercise of a lawful duty. There was no lawful duty and we submit there was no interference. And there was no assault either in the old sense, as we read the Alabama cases, or in the new sense of rudeness and anger because the testimony of the State's own witnesses says that there was neither rudeness nor anger here. He was -- he was quite polite. In any event, the Alabama Supreme Court would not consider this because they said it was filed on the wrong-sized paper. Now, Alabama uses folio paper for records and it has a rule which requires that petition for writ of certiorari be filed on folio paper. And this is a folio paper here and this paper is eight and a half by fourteen and -- I'm sorry, this paper is ten and a half by sixteen and a half and the ordinary legal cap that's used in most other courts and is also used for other purposes in Alabama is eight and a half by fourteen and a half. This paper is two inches larger in each dimension. I may say that petitions for rehearing under Alabama law, there's a case, Redwine versus State, in our brief, are filed in ordinary legal cap paper. Petitions for rehearing are jurisdictional prerequisite to filing petitions for writ of certiorari in the Alabama Supreme Court. Petitions for rehearing are filed on legal -- legal cap and then that is stapled to this paper, as here in this record. The opinions of the Supreme Court of Alabama also are customarily written on legal cap and stapled to the record, but we don't deny that there is a requirement that petitions for writ of certiorari be placed on transcript paper. Our position concerning this rule is, however, that the rule itself, while it is a rule tended to be obeyed, it has been adopted because there are racks of a certain size in the office of the clerk and the Alabama Court of Appeals said in the case, Ex Parte Nation, that we have cited in our brief that this sized paper fits those sized racks and also this sized paper is less prone to rot. Despite the fact that nevertheless the smaller sized paper is stapled into this sized paper for several purposes. Our position is that the rule though --
Speaker: (Inaudible) sized paper?
Jack Greenberg: Pardon me?
Speaker: They print the same size?
Jack Greenberg: Oh, yes, there's the type -- it's typing -- typewriting, it's the same size. We submit that this -- that while this is a rule and it's a rule that's meant to be obeyed, if the rule itself is -- the requirement that it be obeyed is so arbitrary in what -- as to the federal claim that is presented that when petitioner fails to abide by this rule, his federal claim ought not to be stricken. This case is like other cases this Court has decided. Rogers against Alabama was a case in which Alabama refused to consider a federal claim because the pleading was prolix. That's a state rule that ought to be obeyed. The question was, should failure to obey the state rule -- can -- can failure to obey the state rule preclude this Court from considering the federal question. This Court said, no, it could not consider the federal question. Another case is Staub against Baxley, a much more recent case which the Supreme Court of Georgia said that when you attack an ordinance, you must point out the particular sections of the ordinance you are attacking. You can't attack the constitutionality of the ordinances as a whole. While that may be a perfectly valid rule, for purposes of state law, this Court said that the rule under the circumstances was an arid and formalistic ritual and failure to obey it could not preclude this Court from considering the federal question. Another case, a very early case, Carter against Texas, is a case in which the petitioner had not submitted a witness list setting forth the names of the witnesses he would have called to support his constitutional claim of jury discrimination. This Court said that, again, perfectly valid state rule but that does not preclude this Court. It is -- this Court decides what is the proper way to raise federal questions for this Court. Moreover, this is a rule of the Alabama courts themselves, it was not imposed by legislation. And the Alabama courts have waived rules like this and even this rule and comparable rules under various -- in various situations. In Ex Parte Wood, a case cited on page 27 of our brief, that was a mandamus case, mandamus also must be filed in this large-sized paper. And the Court went into a very extensive consideration of the merits and then it said, "another reason is that we -- we reject the claim because it's on the wrong-sized paper". Two cases cited in our brief, Houston against State and Ex Parte Nations are cases in which this Court did consider the claims before it on the wrong-sized paper. The Nations case, a very recent decision of the Alabama Court of Appeals, has an intimation that it's based in forma pauperis type considerations that there was a prisoner who -- where there was no indication that he could have obtained the larger paper, but the fact that the Court adopted this exception shows that it is a rule which under circumstances which the Court considers proper, may dispense with. Their requirements under Alabama law that a litigant must bind his exceptions into the -- his assignments of error into the transcript at the time of submission. And there's a case, Mitchell v. Helms, that we cite in which they permitted him to write his exceptions on the transcript afterwards. Many, many cases have made -- have excused failure to follow the rules recording -- requiring the writing of briefs. There are certain rules of how briefs should be written and the Alabama courts have frequently excused violations of that rule. So the Alabama court has excused violations of rules like this and has considered the merits in cases in which the plea has been submitted on the wrong-sized paper. And we submit in this Court in Williams against Georgia held that where a court has discretion, as here, the fact that it did not exercise its discretion in favor of a petitioner does not preclude this Court from considering a valid constitutional claim. Moreover, we cite at the conclusion of our brief a recent decision of this Court, Hammerstein against Superior Court, in which this Court was faced with a -- an issue arising from the denial of a writ of prohibition in the District Court of Appeals in California. The State Supreme Court had refused to hear the case on adequate state ground and this Court held that it -- since it -- what it had before was the judgment of the intermediate appellate court it had jurisdiction. It declined to exercise that jurisdiction on other grounds, but it held that it had jurisdiction. So we submit that there is no evidence upon which any of these charges rest, either the charges which he originally was tried or those which were raised for the first time in the State Supreme Court. Then, under the Doctrine of Cole against Arkansas, it was denial of due process to affirm on a ground which there was no notice in the court below and that the issues are properly before this Court.
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Well, I think it requires an appraisal of -- of the facts of just what happened here. On page 40 of the record, one of the police officers who testified for the States said this entire transaction took a couple of seconds. That's at the bottom of page 40. And on page 25, the Chief himself said it was a very few minutes. Everybody agrees it was just a moment. Now, I don't think it's an interference with the police for someone who is a member of a group to come over and in the -- a matter of seconds really or moment or two at the most, to make an inquiry as to what is occurring, especially one that is apparent, as it was here, that the police were acting entirely in an unlawful manner, certainly without lawful authority. I -- I think that if something like this had gone on and it developed into a harangue or a wrangle, you would reach a point in which it would reach the -- perhaps the dignity of -- of an interference. But I don't believe there's anything of the sort for that momentary encounter and inquiry. I should think any citizen has a right to inquire of a police officer as to what he's doing.
Earl Warren: Mr. Breckenridge.
J. M. Breckenridge: May it please the Court. Of course, the first issue before this Court is the question of the granting of certiorari and the failure to comply with judicial procedure in the State of Alabama in going from the Court of Appeals to the Supreme Court of Alabama. That was complete -- they completely ignored that rule. Any attorney in Alabama can tell you that that's fatal. At any case, it's fatal. The decisions of the Supreme Court on numerous -- Alabama Supreme Court, that they must use this paper. Now, it is not merely a ritual. There are reasons behind it. I am sure it has been enforced in effect in the Supreme Court of Alabama, the reasonable body. And it has withstood the test of time. The plaintiff ignored it. The -- rather the appellant ignored it. And in view of the other aspects of the case and in view of the fact that this Court has granted certiorari and in view of Hammerstein. And we must remember that Hammerstein, even though this Court granted certiorari, they still came back and said the court is right. There was procedural method. They could take Hammerstein with an appeal. In a paternity suit, they failed to take the appeal. They could have taken the appeal. Hammerstein involved probation. So this Court came back in Hammerstein and dismissed because certiorari was improvidently granted but need -- that not be in the -- that being the case nonetheless. I think this case has an element here that is of such paramount importance but I'm not going to argue that point further. This Court, of course, understands that point far more than I could possibly enlighten as to the need for order in the judicial procedure and they bring in the case to this Court. Now, the next thing I would like to go is to go to the merits.
Earl Warren: (Inaudible) the Supreme Court there ever waived that rule?
J. M. Breckenridge: I don't know of any case it had been waived.
Earl Warren: How about the cases --
J. M. Breckenridge: Unless --
Earl Warren: -- cited by Mr. Greenberg?
J. M. Breckenridge: I don't think there was a waiver of that particular rule. There was some other. I would say that for -- if there -- I believe he mentioned something about when somebody was in prison and filed something, but I believe that, now, they have -- there have been cases where they have said that your failure to comply with this rule is failing intimate and then went on to render a decision, discussed the merits and render a decision. I admit there are a few cases, very few on that but I have a feeling sometime that that's the -- that's the humanity of the court in recognizing that they don't want to put the lawyer on the spot. It's hard to go back to his client and say, "I goofed." They can go back now and say, "Well, although I didn't file it on paper, it wouldn't do him any good anyway", is what they said. Now, there are one or two cases on that.
Earl Warren: (Inaudible) humanity in a case like this?
J. M. Breckenridge: That is for the Court of Appeals and -- I mean, the Supreme Court of Alabama and I would say that the question in this case involved a serious issue and they disposed of it as expeditely as possible. And it is the issue that I want to come to now. Mr. --
Earl Warren: May I ask you (Inaudible) Mr. Greenberg held up a document here a little while ago which would show that the ordinary legal size paper was stapled on to the -- to the larger size paper that's required by your court and I understood him to say that was -- was recognized in the court, is that correct?
J. M. Breckenridge: I don't believe it is -- it is correct. It may be, it may not. I have never risked doing that and I don't know of any lawyer, personally, that had risked doing it. It's certainly not in the rules.
Earl Warren: Well, I thought he showed us some documents that he said --
J. M. Breckenridge: No.
Earl Warren: -- it was used.
J. M. Breckenridge: Well, it -- it -- if that may or may not be. I -- I cannot answer for the court on each and every case.
Earl Warren: Well, if the court would -- would permit them to do that, to staple ordinary-sized legal paper onto this larger paper in some instances, do you think that the rule would be serious enough to say that --
J. M. Breckenridge: That would --
Earl Warren: -- we should deny a constitutional hearing a constitutional right because something of that kind was not done here?
J. M. Breckenridge: Well, as the Court has said, the -- this is bound and bound volumes and when paper is stapled on it maybe of a greater texture that will not withstand and will not stand the test of time and will not make a permanent record. I don't think its good practice but I would -- to staple it on if it is done and I don't know that it is done. I have -- have never seen it personally done and I don't know of any particular case in which it has been done. Certainly, the rules do not authorize it and it is not written on paper if it's stapled on. Now, it -- as I said, let me get to the merits.
Arthur J. Goldberg: May I ask you a question (Inaudible)
J. M. Breckenridge: Yes.
Arthur J. Goldberg: (Inaudible)
J. M. Breckenridge: The copy of the Court of Appeals of Alabama that is sent out to the attorney is on ordinary paper. Now, whether or not the -- yes, I believe and I -- I'd hate to say this without knowing him, but my guess is that the -- that it is -- well, I don't -- it's transcribed to the -- well, I don't know that. I won't say that. But the -- that is correct. The opinion is sent out to the attorneys and the opinion which we received is on ordinary legal paper.
Arthur J. Goldberg: On which the Court here have the addendum of the additional opinion, Katz v. United States (Inaudible) filed in here.
J. M. Breckenridge: Yes, sir. When I take certiorari --
Arthur J. Goldberg: Who makes the copies?
J. M. Breckenridge: The Clerk of the Supreme Court. When I take certiorari from the Court of Appeals of Alabama to the Supreme Court of Alabama, I type -- have typed on transcript paper, word for word, the opinion of the Court of Appeals since it is the opinion that is before them.
Arthur J. Goldberg: Does the Clerk of the Supreme Court makes the record and gave them out this way and (Inaudible)
J. M. Breckenridge: I would -- I would not say at this time. The clerk -- clerk, of course, may set a record up in connection with filing in this Court and would be governed by the rules of this Court and such rules of Alabama Supreme Court that relate to filing in this Court and not by petition for certiorari. That will show on -- on that -- that's the opinion that is stapled on that. Yes, I -- that would not involve Rule 32, certainly. If there's a rule involved here, it would be what he sent to this Court and not -- but the only -- as this Court knows, the petition was stricken, as -- as hundreds of other cases have been. And I wouldn't -- as I said before, I think the crucial issue in this case is the fact. Now, Mr. Greenberg, in discussing the facts, left out the most important one and that is that this occurrence occurred on May -- on a May -- on a Wednesday, which was three days subsequent to Mother's Day in May 1961. There had been an attack on so-called "Freedom Riders" on that Sunday. There had -- this particular group of Freedom Riders came in from Nashville, some 18 or 20 was in the group. I believe 12 was -- testified to be from Nashville. Of course, there's -- and they came into the bus station. There was publicity. There was 200 to 300 people outside of the bus station. There was knowledge of the police that they were menacing. The police had cleared the white people out of the bus station. They had made arrests and they had pushed them back off the streets. They had, for over two hours, block traffic and Reverend Shuttlesworth, in his own testimony, stated that as people got off from work and publicity was made, people began to gather there. There was no constitutional right being denied to anybody. The City of Birmingham was not prohibiting the Riders from boarding a bus and leaving but the buses was not run. The -- the record shows that the bus drivers were not driving. They just wouldn't take them out. The reason for that on the preceding Sunday, a bus had been burned on the highway at Anniston. And to further show the reasonableness of the police officers, in Montgomery, Alabama, there was a major attack on the peace officer, and those policemen are charged with the duty of maintaining law and order and that is the fundamental duty that they were performing. That -- that duty wasn't making an arrest. Of course, the -- as its brief cites the City Code section which says that the duty is to maintain law and order and to protect persons. Now, they did not arrest the Freedom Riders, so-called. We do not say that they violated a law. We do not say that they violated an ordinance but we do say that there was a riot in the making. And we do know that a riot had occurred on a bus on a highway. We do know that a riot had occurred at another bus station a block away, well, not a riot but an attack and because there has been no riot in Birmingham, Alabama contrary to the impression a lot of people have. There had been no fighting between the white people and the black -- and the colored people. There have been fighting between colored people and police, yes, in certain instances. There have been fighting against by extremist groups against police and arrests have been made on -- on both sides. But as I was -- I was saying, the -- the riot in Montgomery, Alabama shows a situation there. That's a fight regardless of any constitutional rights, we -- police knew that they had a situation there which -- wherein people needed protection. And these -- and, incidentally, Montgomery, Alabama, I will tell the Court that the City of Birmingham was made a party by the Department of Justice and they attempted to enjoin us from failing to -- from failing to protect interstate travelers. Our evidence showed that we did protect them. It showed that we did not -- that we were doing everything in our power to protect them. The injunction was not granted against the City of Birmingham. It was granted against the City of Montgomery.
Arthur J. Goldberg: Mr. Breckenridge, what (Inaudible)
J. M. Breckenridge: As -- Mr. Justice Goldberg, there is no specific provision of Alabama law that discusses protected custody. There is no decision of Alabama courts that refers to protective custody. So we are guided only by this decision that protective custody is where a person is willing to submit to the jurisdiction of the law enforcement officers and that -- in this case, we submit, of course, in this case, the Freedom Riders did not object to being taken into protective custody and I don't blame them.
Arthur J. Goldberg: (Inaudible)
J. M. Breckenridge: They did not object. They did not bring any -- they object. They did not bring any action. They did not make any determination. In other words, they submitted to protective custody. And now, that protective custody -- no charge was made against them. They were merely transported from the place where a riot was in the making and carried to a safe place. Now, Reverend Shuttlesworth was there. He did not come in with these young Negroes from Nashville, and they were young mixed college student and they were entitled to the protection of the police. And the only reasonable way the police could have protected those children or those young people was doing what they did. They were not mistreated. They were carried to the -- the record shows no objection even by one of them that testified, except that she was held at the city jail and released. And they did exercise their constitutional rights when the fire was out. When the danger was gone, they got on the buses and went to Montgomery. Of course, they got into more trouble there but they didn't get any trouble in Birmingham.
Earl Warren: Then what's the arrest (Inaudible)
J. M. Breckenridge: The -- they were taken into custody and they did not object.
Earl Warren: But you -- you yourself said it -- you, yourself, said they were arrested.
J. M. Breckenridge: I used the word "arrest" because the record does indicate one or two times that they used the word "arrest". An arrest, as I -- it would be taking somebody into custody for violation of some law of ordinance. They did not violate the law of ordinance -- a law or ordinance. But there were some 80 policemen during the week and some 40 at that time around the bus station. The white people were being pushed back. They were on private property and on the streets away from that. Nighttime was coming and Reverend Shuttlesworth, in his own testimony, says that. He says it was beginning to build up. Now, those young people, they didn't object. And -- and we're entitled to the -- to the inference from that. They didn't object.
Arthur J. Goldberg: (Inaudible) the Chief of Police testified (Inaudible) page 16 of the record. The Chief says that's what I said. The Chief of Police (Inaudible) and arrested them.
J. M. Breckenridge: For their own protection.
Arthur J. Goldberg: (Inaudible)
J. M. Breckenridge: For their own protection, yes.
Arthur J. Goldberg: There's no question about that.
J. M. Breckenridge: Now, the -- the Chief is not a lawyer. He's a law enforcement officer of 25-year service, but he is not a lawyer. And --
Earl Warren: He knows whether he's making an arrest or not.
J. M. Breckenridge: And he was --
Earl Warren: Doesn't he?
J. M. Breckenridge: He took them into custody, yes, sir. He took them into custody. And he was enforcing -- he was enforcing the duty in the Police Department to maintain law and order. Now, if the Court thinks a police did wrong, I would like for them, when they write their decision, to try to decide what should the police had done. What would I have done if I had been there as their Chief of Police? Frankly, I've studied -- I thought of it long and hard. And I think I'd done the same thing if it occurred to me. I think --
Arthur J. Goldberg: (Inaudible)
J. M. Breckenridge: Protective custody is a -- is a -- pose a dangerous thing. I'm not going to argue otherwise. It cannot be abused. It cannot be used except in the most extreme circumstances and I would say that's a case of riot. I would say if somebody was -- was threatening you, you should not be taken into protective custody, Mr. Justice Goldberg. I -- but I would say that if I walked into New York City and went down into an area there, being a stranger or for no other purpose but maybe to carry a sign, "Vote for Wallace", suppose I did that into some areas, that would be a foolhardy thing to do in summary. And I think the -- the police should protect me if it is reasonable, but if it's not reasonable, they should escort me out of there.
Earl Warren: Well, did the police --
J. M. Breckenridge: And --
Earl Warren: Did the police arrest any of the white people who were threatening --
J. M. Breckenridge: Yes, they --
Earl Warren: -- violence against these people?
J. M. Breckenridge: They had been arresting them all day.
Earl Warren: No, I said at that time, in this case, did they?
J. M. Breckenridge: Well, there were congregating on an area then and it was impossible to the Chief, says to tell who -- who's threatening them, who made the threats. The police did not arrest anyone at that particular moment. They hadn't arrested them prior to that, they arrested them after that. And the record shows that other arrests were made. Now -- now --
Earl Warren: How many officers did you have there?
J. M. Breckenridge: Around -- I think 30 or 40. Now, let me -- they say there's no evidence of guilt. Let me show this. Chief Moore says, "I told him to leave. He got between me --
Earl Warren: Told him to leave?
J. M. Breckenridge: To leave. That is in one place. To leave, that is Reverend Shuttlesworth.
Earl Warren: Did he have a right to tell him to leave the place?
J. M. Breckenridge: I -- I think under the decisions of Mr. -- I think he did. I think on the circumstances, under the -- under the --
Earl Warren: Was he -- wasn't he entitled --
J. M. Breckenridge: -- decision by Judge Lehman in New York in People versus Galfron. And under the -- which was concurred in by Mr. Justice Cardozo and under Edward Charles Taylor, defendant, State versus Taylor, I think he did.
Earl Warren: But was he entitled to be in that place to catch a bus which he intended to do?
J. M. Breckenridge: If there had been no riot in the making, Mr. Chief Justice, yes. He had a right but there was no bus leaving. The bus drivers had refused to drive the buses.
Earl Warren: How did he -- how did he know that -- that none of the bus drivers would come in for the future trips?
J. M. Breckenridge: Well, the information that they had was that the bus drivers were not going to drive it and the crowd was forming and nighttime was coming.
Earl Warren: Is there any -- anything in the record to show that Reverend Shuttlesworth was told this or that those Freedom Riders were told that?
J. M. Breckenridge: There is record in there that they could not get a bus and that the bus -- so that the bus drivers would not drive.
Earl Warren: But there was a scheduled bus to -- to run, was there not, within a reasonable time?
J. M. Breckenridge: There was scheduled buses to run, yes.
Earl Warren: And they were there?
J. M. Breckenridge: And they were there.
Earl Warren: And intending to ride on the trip.
J. M. Breckenridge: And intending to ride that bus but they --
Earl Warren: Were they told -- were they told, any of them, that -- that no bus drivers would come and that therefore, it was -- there was no necessity for them remaining in there that the place was closed?
J. M. Breckenridge: The -- the evidence shows that -- that they could not get a bus driver. The evidence does not show that they were told that. But let's remember, we do not have the persons taken into custody before this Court. We do not have any complaint from those persons. We have a complaint from a bystander or a stranger to the proceeding.
Earl Warren: Well, they didn't get six months in jail.
J. M. Breckenridge: They didn't. They were not arrested because they did not --
Earl Warren: And fined, that would --
J. M. Breckenridge: No, they -- they were not.
Earl Warren: -- subject them to 60 or more days, did they?
J. M. Breckenridge: They -- they were not -- were not arrested. Now, let me -- if the Court please, let me go through the evidence it shows there -- as I said, the Chief said he told them twice to leave. And Chief Moore says, "He was in my way and he was asking me what happened." And Captain Garrison says he stepped between the Chief and the group of Freedom Riders and I, myself, told him to move three times. He was told to move. Now, we submit that whether the Chief and the police were trying to maintain law and order. Now, whether the police officers had a right -- I mean the Freedom Riders had a right to complain or not is not relevant in this case. That police officers had a tense situation that they were trying to control and they were trying to eliminate, and they did. And we go further and we find, at Record 29, they couldn't get a driver to take the bus out. Did he refuse to leave? He did not by leaving. When Reverend Shuttlesworth refused to -- to leave after he was told to leave and Captain Warren says their Chief asked him to get out of the way. Captain Warren testified to what the Chief says. And we -- we don't -- we come on down to Captain Warren and we -- Captain Garrison and we find in one place of the record there where the defendant's own attorney says, "Was your action in the taking the Freedom Riders into protected custody made any harder?" Of course, we couldn't have answered such question. Clearly, it was a call for police -- a conclusion. But his own attorney asked him that. Our office -- our attorney in -- on the case did not object and he said, "Yes, it made it harder." We have a clear case of interfering and hindering the police in this situation. Now, this -- the question of the maintenance of law and order in this nature is such that the police, in the issuance of reasonable directions and that has always been the law, the question to determine when direction should be issued and what direction as long as they were reasonable. And these were reasonable. The question of the validity of any protective arrest is not involved in this case. And we submit that the defendant, Reverend Shuttlesworth, could have cost the lives of police officers and people there. Now, that's not farfetched in May of 1951. It was a situation that was occurring in this -- in the south that they did later on without publicity. Now, that -- that's your -- that's your danger in this case, is the publicity that was given. We -- we don't know where it came from but the publicity that was given that they were coming in and the publicity has a tendency to create a tense situation. And law and order is like, we submit, is like the police power. Except in this -- and it's -- and then when the police is trying to enforce law and order, that they have a right to give directions. I can go down the street here in Washington. I wouldn't think one minute of disobeying an order of a policeman not to go down that street because I got a legal right to go down there under the law. But that police officer said, "Go this way", for some reason that he may know and I don't know. I've got no right to dispute that. And that's exactly what -- what Reverend Shuttlesworth was doing. He was arguing, he was discussing, he was failing three times and he, himself, admits twice and the evidence shows three times that he was asked to leave. All he had to do was go to another place in the bus station. Now, the action of the police is shown by the success, the success it had. It did not -- it did not result in a riot like it did in Montgomery. It did not result in harm. It did not completely prohibit there -- their going to Montgomery and that they did go -- did go at a -- at a later time.
Speaker: Would you say, (Inaudible) before you sit down, Mr. Breckenridge, this man's conviction was sustained on the ground that -- for which he was --
J. M. Breckenridge: I was--
Speaker: -- been indicted (Inaudible)
J. M. Breckenridge: I was coming to that, Mr. Justice Harlan. It was not sustained on the ground. In other words, Arkansas case, they were convicted under one section of a law and charged on another. This is not the case. Our City Code gives us the right of election. The hindering of a -- the hindering of a police officer, interfering with a police officer, includes assault. And of course, if I walk up to a police officer and hold off and hit him while he is trying to perform a duty, directing traffic even, I am interfering with him in the operation of his duty. We have never argued there was an assault in this case, but we do argue that assault is within the -- this section of the code. And under Section 6 of our City Code, we have the right of election. The charge was interfering with the police officer. The -- and the Court of Appeals says included in that charge is assault and he was guilty of assault. Now, I'm not arguing whether he was or wasn't because the judgment of the Court of Appeals is not necessarily based on the opinion but is based on the judgment which says, "It is, therefore, considered that the judgment of the Circuit Court be, in all things, affirmed." Now, we will -- we submit that he was hindering the police officer and we must as a -- and this is distinguished from the -- from the South Carolina case because, in that case, from Edwards versus South Carolina, in that case, it said there had been -- there was no evidence there's threat and violence if the police did not move. There was no evidence saying that at all. We have here evidence of threatened violence. The South Carolina case does not come within it. And if we do not, we -- I submit to this Court that this case furnishes a vehicle for this Court to let the police officers of this nation know that they can enforce law and order and that the soldiers are not going to patrol our streets. And I would like to go to a statement that Mr. Justice Jackson made, and I am aware it's in a dissenting opinion but some mighty good law has been made in dissenting opinions. And, if I can find it, he made the -- he made a statement. He says, "Silence in the speaker by authorities as a measure of mob control is like dynamiting a house to stop the spread of conflagration, but this kind of disorder does not abridge the right to speak except in an emergency." That's Khans versus New York. Now, of course, dynamiting a house takes a constitutional right. Stopping these white people from coming out, hey had a legal right to walk into that bus station and walk up and down there. Stopping them took that constitutional rights, in a way, away from it. But law and order must prevail. In this case, it did prevail and there was no riot like they had in Montgomery. There is no riot like it had in places in the north. The -- the issue was handled by the police and Reverend Shuttlesworth was like striking a match close to a gas, open gasoline. Now, that's what his actions constituted. And we -- we think that this Court should recognize that there's nothing, of course, constitutional rights are important. They are the foundation of this nation but they should not, should not be used to destroy law and order because once law and order is destroyed, there is no other rights.
Earl Warren: Mr. Breckenridge, in the (Inaudible) the question of the assault. Now, your -- your Court of Appeals apparently say -- said that this man had committed an assault. Suppose we cannot sustain you on any other grounds than that he did make an assault. Do you say that now that he did make an assault?
J. M. Breckenridge: The Court of Appeals --
Earl Warren: That we could rest this case on.
J. M. Breckenridge: The court -- Court of Appeals based that on common law, on common law theory of assault that -- that his actions constituted a threat. I would not disagree with them. I would not and I have not made that a cardinal point of my argument in this case.
Earl Warren: Well, suppose we -- suppose we have to make it a basic consideration in the case, do you -- do you say it is an assault or it is not?
J. M. Breckenridge: I think it constitutes a threat to interference of the action and I would go with the Court of Appeals if it boiled down to that. I don't think that is necessary, Mr. Chief Justice.
Speaker: Have we got any other cases in Alabama that says that the assault section of your statute is included in the offense of interfering with the police?
J. M. Breckenridge: No, we have -- I don't know about the assault section but --
Speaker: Well --
J. M. Breckenridge: -- but we have a section in the City Code which says that we can in -- that Montgomery --
Speaker: As I -- I read the opinion of the Court of Appeals to say that he could've been convicted under this section, this other section, the assault section, not that the section was included as an offense in the --
J. M. Breckenridge: Mr. --
Speaker: -- interference section.
J. M. Breckenridge: Well, an assault, that would be a question of fight, Mr. Justice Harlan, because if a man assaults an officer, he's interfering with --
Speaker: 60 (Inaudible) --
J. M. Breckenridge: He's interfering with his performance of his duties, if he's performing duties at that time. And Section 6 of the General City Code gives us a right of election, which the city did elect in this case. Thank you, sir.
Speaker: Okay.
Earl Warren: Mr. Greenberg.
Jack Greenberg: please the Court. I would just like to clear up two brief points. First of all, when these Freedom Riders with whom Shuttlesworth was associated with, were arrested, they were all -- they were placed in jail for 12 hours but this was not merely a question of taking them out of the presence of a mob that allegedly was about to attack them. They were actually placed in jail for a period of 12 hours. Secondly --
Arthur J. Goldberg: (Inaudible)
Jack Greenberg: Yes, and that's on page 54 of the record. Secondly, Shuttlesworth -- if this was for their protection, the question then arises, why weren't they protecting Shuttlesworth? Shuttlesworth was a Freedom Rider. He was part of the group. He had a ticket. He had a suitcase. He was going with them. He -- that incidentally, is brought out even more fully in a case not cited in our brief. He was charged, at the same time, for another crime, conspiracy to cause a mob to gather and that was reversed in the Alabama Court of Appeals at 157 2d 763. And that makes even more clear what also appears in this record, that this was one large group of which Shuttlesworth also was a member. But they protected the group and they arrested Shuttlesworth for -- apparently just being a member of the group. As to the question of assault being an included offense, Cole against Arkansas and other cases are based on the principle that, if one is charged with a crime, he has an opportunity to defend against it. He could've presented evidence to indicate there was no assault. He could have argued to the court below. He could've briefed the fact that there was no assault and indeed, there was no assault. And the opinion of the Court of Appeals is based upon a clear misapprehension of the record concerning rudeness and anger. And if there were some notice that this was to be a prosecution for assault, either as a separate offense or as an included offense, there could have been a defense against assault. But the first notice anybody had of that was in the affirmance of the Alabama Court of Appeals. We submit, however, that the no evidence point is the dominant point here. There is no point in sending the case back to the Alabama courts for a reconsideration of whether or not there was an assault or there was interference with the police officer in the exercise of his duty, simply because there is no evidence of either. In any way, it is defined, any way that these various crimes are defined, either as heretofore or as defined for the first time, as do some of them, in the opinion of the Court of Appeals.