Earl Warren: -- your time had this it?
John P. Nelson, Jr.: Ask in rebuttal.
Earl Warren: Yes. Attorney General Gremillion.
Jack P. F. Gremillion: Thank you, Mr. Chief Justice and Associate Justices of this Court. I find Louisiana in a unique position here today because frankly we have no quarrel with the law as it presently exist at least in our opinion in this matter. I think that this case of Lombard here, is one that was largely determined revolved its decision on what the facts actually are. And they are so important that I would like to take a minute to go through the facts of this case.And then we can discuss the appropriate legal points. Now, the facts surrounding this case was the basis of a criminal mischief charge brought against these defendants are still in Louisiana. Between 10 and 11 o'clock on the morning of September the 17th 1960, two Negro men, a Negro woman and a white man took seats at a 24 stew lodge counter, reserved the white customers in McCrory's Five and Ten Cent Store or Canal Street in New Orleans. Now, McCrory's is one of the national chain operates in 34 states. It sells all kind of merchandize and it's open to the public and of course the statements I'm making here are born out by the record because I am following my brief. The question of whether the lunch counter facilities in the various McCrory stores are segregated or integrated is left to the National Office of the McCrory stores to be determined by local tradition law and custom as interpreted by the manager of each individual store. And that's in a transcript of the record at page 21. Of course, as it has been point by Mr. Nelson, Louisiana has no law requiring segregation of eating facilities in its state. It never has had -- neither thus the City of New Orleans nor do I know of any single municipality that has such an ordinance in the state, back there is none. Now, the McCrory Store in which these defendants stay and having demonstration had separate food counters for serving food to Negro and white customers since 1938. And as I said before, there is no law or ordinance requiring the segregation with these eating places and by operating separate lunch counters for whites and Negroes, McCrory was simply following a local custom as interpreted by that store manager, Mr. Barrett. An employee of the lunch counter at which the defendants sat down called the restaurant manager who informed these four students both white and Negro, that he could not serve them at that counter and that he had to sell them eating materials at the rear of the store were he had a colored counter. Now, when the manager received no answer at all from these individuals, this is the restaurant manager, he turned off the lights. He removed the unoccupied stools -- stools and he closed the lunch counter. A sign reading? This counter is closed was pointed out to the students but they remained silent. The restaurant manager then called the store manager and the police. Now, the police -- it's significant, the police were never present in anytime. The manger, Mr. Barrett, came behind the counter and he talked to the individuals and he asked them to leave. Police still was not in -- were not in the establishment. But they neither answered in nor did they move the concen -- continued to sit down. When the police arrived, the store manager advised the students in the presence of the police and prior to talking to the police that the counter which they were seated was close and he asked them to leave the store, nothing happened.
Hugo L. Black: I didn't quite get it. Did I miss -- how did the police -- were they called under this?
Jack P. F. Gremillion: Yes. The restaurant manager notified the store manager and then called the police. Up to that time the police were not involved in this factual situation at all. And when the police arrived, the store manager talked to the four individuals and he told them that the counter which they were seating was closed and he asked them to leave the store. Now, as I said nothing happened. Thereupon --
Potter Stewart: Now, was that done in the presence of the police?
Jack P. F. Gremillion: Yes. And the manager told these individuals that he ordered them out of store and he asked the police to take them out of the store because it was his custom not to serve them. His custom as interpreted by him. It was his custom not to serve them at that particular counter. Then the police officers told them, ?The manager wants you out. You are violating Louisiana law.? And that's of course is in the record. And the --
Potter Stewart: He didn't identify what law they were violating, did he?
Jack P. F. Gremillion: No, he just said you're violating the State law and he asked them to leave. He asked, Which one was the leader? And the white student and said, I am the leader. And that's the only word that was ever spoken by these four people. He identified himself as the leader. And he said that they had come there for a particular purpose. And that their mission was to be served and that if they were not served, they were willing to be arrested. So the Major, I forget his name right now, the police --
Potter Stewart: Now, what law were they violating if any right at that moment? By saying they wanted to be served.
Jack P. F. Gremillion: They were violating the criminal mischief statute of the State of Louisiana which read as follows. And this is the basis of the charge against them, Taking temporary possession of any part or parts of a place of business, or remaining in place of business, after the person in charge of such business or portion of such business has ordered to such person to leave the premises after he resist from the temporary possession of any part of parts of such business. In other words --
Potter Stewart: So while -- while this is what you referred or called a criminal mischief statute that part of it at least is very similar to the trespass statute that we have in the previous cases, is that right?
Jack P. F. Gremillion: Well, you might say that but it -- it was a statute that was passed by the 1960 session of the legislator, and was designed to protect the rights of the private individual on his property from the invasion by anyone regardless of race, creed, or color. Now, counsel -- and I might go into this right now. Counsel has attempted to tell you that there was a great segregation program passed by the State of Louisiana of that session of the legislature. Well, it may be that there were a lot of laws passed that was subsequently declared unconstitutional in litigation in the eastern district and subsequently in the Fifth Circuit Court of Appeals. But these particular statutes, these particular criminal statutes were passed as the result of District Attorney's conferences and I might tell the Court that as Attorney General, I've already made conferences for the District Attorneys in my state which is required to some states. And we meet every year in February of the year and we discuss the decisions of this Court as they affect our laws. We discuss the decisions of our Supreme Court as they affect our criminal statutes. And we are always amending our criminal code to provide the situations that were never covered by law of the Court. So there is no significance to be attached in such a fact like that. In fact, as the result of the working with the Louisiana Law Institute, our Court of Criminal And Civil Procedures was completely overhauled at the same session of the legislature. So I don't think anyone can say that that was the result in trying to maintain the policy of segregation in my states. Some of the laws that we amended we act quite a bit of litigation involving our registrars and voters. We woke up to find out that no one could ever provide the material for the registrar of voters because until recent years, the office was relatively unimportant. And it passed the law at that session making the Attorney General the attorney for the registrar of voters just giving me a little more work to do. But I recite that to you because there's nothing in any of these statutes that we passed which would Your Honor upon recommendations of the District Attorneys and this act was drawn in my office. So I don't know why it was put in there. We never have a statute before because we never have had situations that existed like this before. We never had the statute on our books that could punish someone for coming in and taking possession of their property, much like that someone would walk into your home and say, I'm in your home. And you could say, Well I don't want you in my home, get out. And we never had a statute to cover. Certainly, you would have the right to invite him out and if he refuse to go out you would certainly have the right to call the police because he has no right to be in your home, no federal right, no other vested right. And that's why we pass this particular statute.
Speaker: What did the statute accomplish if this already embraced the general trespass statute?
Jack P. F. Gremillion: Mr. Justice Harlan, our general trespass statute, as I recall, relates mostly to farming and includes the lands. The general trespass statute of our state would not cover the factual situation that it could here.
Speaker: Can you give me the citation?
Jack P. F. Gremillion: Unfortunately I -- I do not have it with me. I didn't think they form a portion of this case but I would be very glad to provide that to the clerk for you.
Speaker: Alright, thank you.
William J. Brennan, Jr.: Mr. Attorney General the penalties are on the general trespass statute?
Jack P. F. Gremillion: No, but they are the same approximately. They are misdemeanors. They have provided for a fine or I believe one year in jail up to a thousand dollars after discretion of the Court or depending upon the facts of the case.
Earl Warren: Had you -- had your Supreme Court held that your general trespass statute did not apply to businesses like this?
Jack P. F. Gremillion: Well, it was -- no they had never had held but it was always the contention of the District Attorneys and others that the general trespass statute would not apply to a situation where individuals came in to a place of business such as happened here and took possession of it because the general trespass statute did not cover such a situation. And that's why we pass this statute; we wanted to spell it out.
Tom C. Clark: Is it -- has it been applied to any group except Negroes?
Jack P. F. Gremillion: Well, --
Potter Stewart: It is applied to Jews?
Jack P. F. Gremillion: -- I can't say -- it's been used in several court prosecutions in the state. How many? I do not know. But we published a booklet on the number of our -- we published the booklet on the number of ads that it's been used. It's been used to about 40 or 50 times since it's passed indiscriminately both white and colored, I mean, regardless of race, creed, or color. There's been no distinction, Your Honors, what I'm trying to point out to you.
Potter Stewart: Is it applied to people like the Americans with Mexican ancestor?
Jack P. F. Gremillion: Well, I'm sure that it would apply to them if one had committed the particular crime. But our State Supreme Court --
Potter Stewart: And --
Jack P. F. Gremillion: -- Your Honor went in to that very Catholic in his decision, when it discussed the constitutionality of its statute and its application. And of course I don't want burden this Court by reading that to you but it's in the record --
Tom C. Clark: Yes, we -- yes I'm aware.
Jack P. F. Gremillion: What's that?
Tom C. Clark: Yes, I'm aware of the opinion.
Jack P. F. Gremillion: You are aware?
Tom C. Clark: Yes.
Jack P. F. Gremillion: Alright. But I just want to save time because I need to talk about something that we all know about.
Arthur J. Goldberg: General, have made several references to people coming in and taking possession but surely there's a difference here. These people were invited into the store, weren't they?
Jack P. F. Gremillion: Well, that is true.
Arthur J. Goldberg: And thus --
Jack P. F. Gremillion: But -- but after they -- after they were invited in as customers and they went to this particular place of business, the store manager walks ups and says, I cannot serve you. I am asking you to leave our premises.
Potter Stewart: They say, I cannot or I will not?
Jack P. F. Gremillion: Well, I thought they could make any difference when he said, I cannot --
Potter Stewart: It might make a great deal of difference. It's a matter of semantics that are not important --
Jack P. F. Gremillion: Yes.
Potter Stewart: But if he said, I cannot that meant that he was being coerced.
Jack P. F. Gremillion: But there is no evidence of coercion in this case, Your Honor. There's absolutely no evidence of coercion in this record whatsoever.
Arthur J. Goldberg: What about the statement, General -- once made by the Mayor and chief of police.
Jack P. F. Gremillion: I'd be very glad to discuss that. Now, you must bear in mind, that these sit-in demonstrations occurred just about the time we were having sit-in demonstrations all over the south. And feelings were rising high. We had a sit-in demonstration at Woolworths which caused the Superintendent of Police to issue that particular statement, but that was on a Friday. On the next Saturday, we had a picketing fiasco at another store in the French Quarter in New Orleans. It turned out not to be in a peaceful picketing at all and in fact, the police were not there of course, they're too being called. And the picket were running the pedestrians over the street and making them run out into the narrow streets of the French Quarter. And there was a tremendous excitement prevailing that could have blown-up in any minute and we could have had race riots. That was when after that particular cause and incidentally those individuals have been charged with obstructing a public passage way and making pedestrians get off. And that case was tried and they were convicted in the lower court is now in the Supreme Court of Louisiana. And I imagine we'll be having it up here sooner or later. But anyway --
Hugo L. Black: (Inaudible)
William J. Brennan, Jr.: Possibly, a Yick Wo case.
Jack P. F. Gremillion: A what, sir?
William J. Brennan, Jr.: Yick Wo, you know the Yick Wo case?
Jack P. F. Gremillion: Yes. I don't think so.
William J. Brennan, Jr.: Where the law was -- it is a law that used against a race, a group, one group. It has the label Negro on it. That had the label of Chinese on it, the Yick Wo case?
Jack P. F. Gremillion: Well I don't -- I don't think that these laws were used indiscriminately against Negroes in this particular, I do not. And I don't think there's any proof in this record --
William J. Brennan, Jr.: I was just --
Jack P. F. Gremillion: -- it will indicate that.
William J. Brennan, Jr.: I will just listening to what you're saying.
Jack P. F. Gremillion: Yes, Your Honor.
Hugo L. Black: Now we're were we?
Jack P. F. Gremillion: We were talking about the Mayor's statement --
Potter Stewart: Talking about the --
Hugo L. Black: The mayor's statement?
Jack P. F. Gremillion: Yes.
Hugo L. Black: Alright.
Jack P. F. Gremillion: So then -- so then Mayor Morrison issued his statement. Now, I can read those statements very carefully. I've read them again this morning When Mayor Morrison refers to so-called peaceful picketing, what he meant was something that was attempting to be conducted under the guise of law which could possibly obstruct the peace and harmony of the community. And that's why those statements were issued. They were issued purely as the ministerial function of the Mayor and his chief law enforcement officer. It is significant to note that the Mayor at no time said he was sending police to these department stores. At no time did he say that he was going to take the law into his own hands. And reading these, you can only come to the conclusion that here was the Mayor of a great city, a great mayor, a distinguished mayor, who was doing his job, under the Constitution of his state and the Constitution of the United States to maintain peace and order. Now, Mr. Justices let me ask you this and this is one of the dilemmas that Louisiana face -- faces. When we in cases of this kind call upon our police, which we've certainly got a right to do after an occurrence has happened such as this. If we fail to maintain the peace and tranquility of our community by the use of our own police which is paid to do that. If we fail to do that, we are castigated before the eyes of the nation and the press. The first thing, you know, we've gotten marshals and in some cases troops. Then if we don't take care of our people, if we don't use our police to maintain law and order in a community, we come before this great tribunal claiming that their rights have been violated as the result of certain sections of the Due Process Clause of the Constitution. Now, what are we going to do? The only thing that we can do is exactly what's transpired in this case. I say to this Court that Mayor Morrison is a man of moderation and so is Chief Giarrusso. He'd been an outstanding mayor and he acted without discrimination whatsoever in this case. He had just run for governor in that law the Negro votes. Certainly, he wasn't going to turn around and repudiate him and furthermore I say to this Court that the President of the United States would have never appointed Mayor Morrison as the ambassador to organization of American States if he had it in anyway discriminated against anybody in the City of New Orleans. So I attach no significance whatsoever. It certainly not a part of the race just type of this case. It was not a directive to any storeowner that they get to together. It was not a directive to a storeowner to call the police, nothing was mentioned about that.
Arthur J. Goldberg: Doesn't this record clearly plainly indicate that was the storeowners didn't get together prior to the particular demonstration which is here involved?
Jack P. F. Gremillion: Mr. Justice, my answer to that is that it wouldn't have made any difference if they have got together and discuss it because it doesn't constitute state action. Because private citizens and owners private property can get together and discuss the problems --
Arthur J. Goldberg: What about getting --
Jack P. F. Gremillion: -- no more than they would get together and discuss their income tax problem, the federal income taxes, would you say that that would be federal action?
Arthur J. Goldberg: But General what -- what if they got together with the police?
Jack P. F. Gremillion: But they did not get together with the police. And there is no evidence in here to prove that they have got together --
Arthur J. Goldberg: But weren't the petitioner's -- weren't the defendants foreclosed by the trial court from offering that evidence?
Jack P. F. Gremillion: Yes, because of the fact it's absolutely irrelevant to the prosecution of the crime. And even if they had proved it that these people have discussed such a situation before it, it's still would be immaterial because all they were talking about was the question of what their property rights are. I repeat --
Speaker: We don't know.
Jack P. F. Gremillion: -- but this --
Speaker: We don't know --
Jack P. F. Gremillion: But if your -- Mr. Justice Harlan I say to you that even if they had shown that there have been discussions --
Speaker: (Inaudible)
Jack P. F. Gremillion: -- it would have still been immaterial because -- they could --
Speaker: (Inaudible) the policy of whatever it was and keeping these Negroes out and he said, alright, would that be a relevant?
Jack P. F. Gremillion: Alright. If such a thing was possible and had been proved and surely it would have been allowed but he (Voice Overlap) wait just a minute.
Speaker: Well they -- they was allowed to in anything.
Jack P. F. Gremillion: But these people were defended by their competent counsel. He had Chief Giarrusso on the stand. He had Morrison on the stand. He only called them as witnesses on the motion to quash. He didn't call them on the trial of this case. He had that right. He had that opportunity to prove that and did not avail himself of it. So that was even he failed to do that it didn't exist. Now, if this Court wants remand the case for the taking of that evidence, I shall move.
Arthur J. Goldberg: General, would you have said as a very experienced lawyer which you are is very able in that in light of the rulings of the trial court in this case where such evidence was offered any purpose would have been served by a counsel further pursuing this into trial court made it very clear. I refer to page 94 of the record that he would not admit evidence on the question of whether what was discussed with the police.
Jack P. F. Gremillion: Well, I --
Arthur J. Goldberg: And then Mr. Nelson object and reserve his objection on that point?
Jack P. F. Gremillion: And the Court went into that very thoroughly. They said that it was absolutely immaterial. He didn't offer to prove to concert and apparently did they offer any proof of concertion or solutions, or cooperation to deny to buy anything. You can look to Mr. Nelson's objections and he never called that to the Court's attention.
Arthur J. Goldberg: Well, look at page 94 again if you will.
Jack P. F. Gremillion: Yes.
Arthur J. Goldberg: Doesn't he call that to the Court's attention when he said that his purpose in offering this evidence is to show what state policy is?
Jack P. F. Gremillion: But it's been held in the Howard Johnson case that regardless of what state policy is that that is not -- that come within the scope of state action under the Fourteenth Amendment. Our Supreme Court went into that very thoroughly in its opinion.
Arthur J. Goldberg: But are you arguing that if the State here directed the storeowner not to admit Negroes it would not be state action?
Jack P. F. Gremillion: Mr. Justice Goldberg, I say this. That if the -- oh yes, I've been reading here of that, that there are definitely. I also say this, that if the manager and it got together with all the managers and it's decided that they were going to segregate their colors and that -- then he comes around to change his mind, and called the police and someone sued him rather as a result of his breaking the agreement. That that could of course be state action, likewise, if you had decided that, say he was a great advocate of civil rights and in his own mind his interpretation of what the custom was that he had decided, he was going to serve everybody indiscriminately. And that group of each citizen called the police and one of them had the police arrest him, do you understand? Then that would be state action, but that is not what happened here. What happened here is that you had a bunch of people who moved in deliberately with design sat down and said, I want service. The manager says, I'm not going to serve you. The police had never been called. The police had never been contacted. The police gave him ample opportunity to leave and reluctantly arrested them after they had been in that count of some 20 and 25 minutes. So as -- as I -- yes, Your Honor?
Earl Warren: Excuse me -- Mr. Nelson wanted to conduct his cross-examination and direct it to this language of the Mayor in his public statement. I have today directed the Superintendent of police that no additional sit-in demonstrations or so-called peaceful picketing outside retail stores by sit-in demonstrators or their sympathizers will be permitted. And then jumping over to the end of it, It is my determination that the community interest, the public safety, and the economic welfare of this city require that such demonstrations seized and that henceforth, they be prohibited by the police department. Now, would you discuss whether that represents state action in as much as the Mayor is the -- is the chief officer of the city and the Superintendent is his -- is appointee and subordinate to him.
Jack P. F. Gremillion: Well, my answer to that would be this, Your Honor. Again, he was speaking about his customers, but when --
Earl Warren: But where in the Court did he say so?
Jack P. F. Gremillion: Well, that's what he's talking about --
Earl Warren: Where -- where did they -- where did he say so?
Jack P. F. Gremillion: I'm looking at it, Mr. Chief Justice, from the standpoint of what Mayor Morrison meant by that.
Earl Warren: Well, alright. Well now, why -- why not use, why not apply the language that he used in there to -- to indicate that? What did he say in there to establish your position?
Jack P. F. Gremillion: But I come back to this. He did not call the Mayor on the trial of this case and asked him a single thing about that. These sit-ins happened after the statement of the Mayor. So apparently it had no effect. He never discussed with Mr. Barrett during the trial of this case whether Barrett ever new about the existence of those particular statements and I don't think --
Earl Warren: He couldn't -- he couldn't go into that --
Jack P. F. Gremillion: And I don't --
Earl Warren: -- could he?
Jack P. F. Gremillion: I don't think that -- I don't think that that constitutes state action, because I think that all that the Mayor was trying to do was to maintain peace and order. And it is a fact that these sit-ins occurred and Mr. Nelson said very quietly without any passion whatsoever. And of course, the State police was not there to stop them as the result of this statement by the Mayor. The statement by the Mayor to me is whether as the Chief of Police is strictly one of maintaining peaceful situations in the City of New Orleans. He noted in his statement that he didn't say anything about peaceful picketing, he's talked about so-called peaceful picketing.
Hugo L. Black: Well, I suppose you would agree, General, wouldn't you that even they didn't have any law on the book, if the law wants to enforce customarily of the common practice that that would be the same as though it were written on the books?
Jack P. F. Gremillion: Oh no, I don't agree with that --
Hugo L. Black: What would you do with --
Jack P. F. Gremillion: -- I don't think that we ask them all --
Hugo L. Black: We had them in those cases of that time.
Jack P. F. Gremillion: I don't -- I don't think that --
Hugo L. Black: Not particularly in this field and then all them but --
Jack P. F. Gremillion: I --
Hugo L. Black: They had a case where down in Tennessee the question of denial of equal protection of the law has came up on Texas. The book said one thing but the practice was another. And we said that if the practice was this, even though it was not written on the statute who decided the case according to the way what actually happened as in the Yick Wo case to which Justice Douglas called your attention. It doesn't make any difference about what law is written on the book if the states to its official, I would say, I would think you would go that far.
Jack P. F. Gremillion: Well --
Hugo L. Black: Because I think your defense is the one which you've mentioned at first but have not mentioned in what sense that you have what is in effect the trespass after warranting or trespass when a man has been warned to get out. I see no difference between the two.
Jack P. F. Gremillion: That's correct.
Hugo L. Black: That's what you have.
Jack P. F. Gremillion: That's correct.
Hugo L. Black: Now, if you have that but even that law is used constantly and continuously and by agreement of officials, for the purpose of prohibiting something which you cannot -- the State cannot prohibit to it and I suppose you would agree that the State couldn't pass the law to make it illegal for a merchant to serve a colored man, wouldn't you?
Jack P. F. Gremillion: I agree with that, Your Honor --
Hugo L. Black: Yes.
Jack P. F. Gremillion: And that's why -- we don't have such --
Hugo L. Black: That's right. That's right.(Voice Overlap)
Jack P. F. Gremillion: -- that into a state --
Hugo L. Black: Well, I thought you were that being the case. If you all -- if you have such a law in actual practice although it's not written on the book. And that law which is an actual practice among your officials were utilized here, how could you escape the fact that that was that state action?
Jack P. F. Gremillion: Because I think that the cases show that the merely utilization of the courts is not sufficient state action as it covers the Due Process Clause of the Fourteenth Amendment.
Hugo L. Black: But one could have -- one could agree with your holding on that.
Jack P. F. Gremillion: But the question that we have here to finally premise one that you're talking about but does this really constitutes state action?
Hugo L. Black: Well if --
Jack P. F. Gremillion: Now, what happened in this particular instance --
Hugo L. Black: If they could have prove that the Mayor of the city and he has a good deal of power whether -- whether the statute says that in that he goes turn and said now, We want this stopped, these sitting-in. We're not going to -- we don't care whether you want it stopoed or not.
Jack P. F. Gremillion: But he is talking about unlawful --
Hugo L. Black: I know but suppose he said that and he said, if we're going to have the police read it, you call it.
Jack P. F. Gremillion: Oh, I would agree to that, Your Honor.
Hugo L. Black: Well then, why shouldn't the man be allowed when you said that these are to try to prove that fact?
Jack P. F. Gremillion: Because that didn't not -- did the factual situation as it occurred here.
Hugo L. Black: We don't know --
Jack P. F. Gremillion: The only necessary -- the only you can --
Hugo L. Black: How can you know?
Jack P. F. Gremillion: The only necessary --
Hugo L. Black: Unless they have permitted to offer the evidence.
Jack P. F. Gremillion: The only necessary ingredient to this crime is to show the possession -- is to show the others to leave and to show the continuance of the remaining. And that was all that was necessary for this particular conviction.
Hugo L. Black: Now, I draw --
Jack P. F. Gremillion: Now all --
Hugo L. Black: -- a distinction to myself. I like to call your attention to it. You're reluctant to meet that situation. For myself, I draw and decided a distinction between what the State can enforce where the owner of property wants to protect it for certain uses, has a right to do it and one where the police or the State steps in and says, irrespective of what you want, I think I wrote someone on that in the Struthers case.
Potter Stewart: Yes.
Hugo L. Black: Irrespective of what you want, we won't --
Jack P. F. Gremillion: That was before --
Hugo L. Black: -- we want you -- we want to stop this thing and therefore you sit-in blacks and we'll arrest you.If they said that, you would agree I suppose that that would be state action.
Jack P. F. Gremillion: I would agree with that, Your Honor.
Hugo L. Black: Well, I'm asking you now, but this only point on that is, that he was denied the opportunity to offer evidence.
Jack P. F. Gremillion: Well --
Hugo L. Black: To show it if he could, maybe he couldn't?
Jack P. F. Gremillion: I must be quite frank with you and tell you that if that was in the record, I would agree with you. But it is not in the record and it's not the State's fault that he didn't call the Mayor and the Superintendent of Police to prove that particular point even though he was not allowed to introduce that evidence by a question of Mr. Barrett.
Hugo L. Black: Why should a lawyer do that when the Court tells him in advance? We're not going to have any evidence on that subject.
Byron R. White: Well, General --
Jack P. F. Gremillion: Yes.
Byron R. White: (Inaudible)
Jack P. F. Gremillion: I don't quite understand who you're talking -- you mean -- you mean the store manager?
Byron R. White: Some people say the question is whether or not the store owner had decided his own, the discretion of his own decision. And that gentleman is on the stand that being somewhat significant to acquire to whether or not this is of the State's decision as repeatedly be excluded. And if when he asked the question, he said he -- the question was whether if their decision was a matter of conforming to State policy or not.
Jack P. F. Gremillion: Yes.
Byron R. White: And this was the direction of which apparently he was headed. Now, it's true that he might have gotten that this in other ways. But in the long run, he would -- it would be most sensible, I would think, to get out through the owner of the store even if he had the Mayor and the policeman on the stand. The police chief on the stand, he still, I would think, would feel some compulsion to get at this matter to the storeowner.
Hugo L. Black: I understand you.
Jack P. F. Gremillion: Well, Mr. Justice White all of that -- the answer to that is cover the in Judge Cox denial of the motion to quash and also in the judgment of the Supreme Court of the State which is for that --
Byron R. White: How is that general?
Jack P. F. Gremillion: Say it is covered --
Byron R. White: Yes, but how is it covered?
Jack P. F. Gremillion: It's discussed in the --
Byron R. White: Well, what's the anwer?
Jack P. F. Gremillion: Could you just bear with me just for a second. Here it is on page 146 of Supreme Court's opinion. The defendants sought to introduce evidence to establish that the action of the manager of McCrory's was provoked or encouraged by the State. And that they would have this Court hold at this action of McCrory's was not of its own voluntary action, it was influenced by the officers of the State. The conclusion contented for as incompatible with the facts rather the testimony supports a finding as a manager of McCrory's had for the past several years for few service to Negroes, that the policy the store was established by him that he'd setout the policy he founded consistently. That Negroes had habitually been granted access to one counter and within the store and it deliberately provoked mischief and disturbance such as the one he complained of here had not previously occurred. In the -- passed to other Negroes could have mistaken to take sits encountered question and they were told to move and cooperate, and recognize the request of McCrory's employees and had said that the counter set side from him. Even under the provisions of requested statute, it is apparent that the prosecution is dependent from will of the proprietor. For all that after he is automatically intrudes to relinquish possession of his place of business that a violation of the statute occurs. The State therefore without the exercise of propriety would define no basis under the statute to prosecute and then it goes on --
Byron R. White: Well I'm -- I still don't have --
Jack P. F. Gremillion: Well I -- I know that you were not properly answer that and I must admit (Voice Overlap) --
Byron R. White: I don't know if there is any answer there specifically to the question --
Jack P. F. Gremillion: Mr. Justice White, I will agree that we are probably weak on that particular point. But it will just so be it as far as we're concerned if this Court says that it should have been allowed and the Court is not going to do by except of his mandate. But we don't feel that their rights were violated in this respect at this particular trial because of the provisions of Louisiana law. And the Court went into that quite thoroughly and I'll just have to stand on the decision of my Supreme Court.
Earl Warren: General, you said that a few moments ago that the Mayor was speaking only of unlawful demonstrations. So, would you show me in his statement please where he says he's only referring to it.
Jack P. F. Gremillion: No, he doesn't come right out and say that. But certainly I don't think anyone would understand that he was trying to say that he was referring to anything but violations of the law. In other words, I'm being extended about this as I possibly can. And I'm looking at -- I'm considering what -- what occurred, these three demonstrations and why the Mayor did this and I've never talk to him about it. I've never discussed it with him. And I suppose that we can draw that anyone can draw his own inferences from his statement. But I repeat that I think that his statement was one purely of a ministerial nature in which he was trying to maintain the peace of the community. Because he went ahead and quoted in his statement, Mr. Chief Justice, Act 17 of the 1960 legislature by disturbing the peace. He quoted another provisions of Act 70. He quoted 80 which was obstructing public passages and the restraining of traffic. And looking at it from the overall picture, I don't think -- I think he was directing his statement to the entire population of New Orleans and not to one specific group to restrain themselves and to act in a lawful manner. Now, that's what I get from it and apparently that's what the Court got from it and I repeat that Mayor Morrison is certainly a man of moderation. He's very liberal with his thoughts and I don't think that he ever had in mind the utilization of the police force that he's an officer or anybody to take anyone's rights away. And I repeat that certainly these sit-ins occurred some four or five days after his particular statements so it must have been a situation whereby these individuals wanted to provoke some action where they could come under the cover in the cloak of the Fourteenth Amendment and have their prosecutions voided.
Earl Warren: He wasn't speaking to general public when he said this: I have carefully reviewed the reports of these two initial demonstrations by a small group of misguided white and Negro students, or former students. It is my considered opinion that regardless of the avowed purpose or intent of the participants, the effect of such demonstrations is not in the public interest of this community.
Jack P. F. Gremillion: That is correct. Now, in all candor, he's not that speaking about the policy of the State which was one in favor of segregation. That I admit, we admitted in our brief that's what he is talking about.
Earl Warren: He's talking about maintaining that policy of segregation.
Jack P. F. Gremillion: He's talking about a policy or a custom which --
Earl Warren: Yes.
Jack P. F. Gremillion: -- people in my State had practice that was since we became a union, ever since we were readmitted to the union and which -- as our Supreme Court said that's practiced freely by both white and black.
Earl Warren: And he was --
Jack P. F. Gremillion: But let me tell you something, Your Honor --
Earl Warren: Well, may I just ask --
Jack P. F. Gremillion: Yes.
Earl Warren: -- just one more question. And he is insisting in the statement that that be adhered to?
Jack P. F. Gremillion: Oh yes. Absolutely, because he -- as he says, it's not in the public interest and he does not want any unlawful acts to occur. That's what I draw upon. We were talking about inns and in that connection let me go into this. We were talking about the inns and hotels and you've talked to the other states about that. We have no such statute in that respect. But, talking about the policy of the State, just recently a motel was opened up in Baton Rouge, it's called the International Motel. And they've got signs all up and down the highway. You know what they got on the bottom of those signs in big -- owned and operated by and for colored people only. We've got the Lincoln Hotel in Baton Rouge the same way. We've got hotels in New Orleans the same way. We've got tourist courts in Lafayette. We've got tourist courts in Lake Charles and Shreveport. And it's publicly, they said, This is for colored only?. Now, who made them do that? Strictly, the policy of State that's all. Negroes are doing it just as much as white people, are we to be condemned if they do that, can you say that a policy is state action under the Due Process Clause of the Fourteenth Amendment?
Tom C. Clark: I suppose --
Jack P. F. Gremillion: The civil rights cases hold otherwise and I agree with the gentlemen up here from Baltimore, wherever he was from, yesterday when he said that to reverse these convictions, you have overrule civil rights cases. And I said quite frankly, I agree with you as to what the law is now I believe to overrule this if you approach it from the facts of the law that you have to overrule the Civil Rights Acts which of course will give us by decision of this Court, if you do that in National Civil Rights Policy.
Tom C. Clark: I suppose that we have the same case that we have today if a white man was thrown out of a Negro restaurant.
Jack P. F. Gremillion: We surely would. And if he would go into that International Motel that I'm talking about to seek a room, why you'd have another astronaut coming out of Baton Rouge. Let me tell you another little incident now, Mr. Justice. Let me tell you no one -- well I'm not trying to be fastidious with the Courts I -- I --
Hugo L. Black: You conceded.
Jack P. F. Gremillion: I really was trying to tell you what it would be. Now, we have a case that I'm sure it's going to end up here. I have a Negro in Louisiana charged back with rape.
Tom C. Clark: Yes.
Jack P. F. Gremillion: And he claims that his constitutional rights have been violated because Negroes have been systematically included in the jury pounds and he wants to be -- he wants to be tried by an all white jury. Now, he had one for the books. So I'm only bringing that out to tell you what the policy of my state is what the custom has meant. And it hasn't been enforced by white people. It always been enforce by Negro thought as well. We've got a little community down at Houma, Louisiana which is sort of an Indian tribe. A mixture of French and Negro and they've got their own school, they want their own school, they tell the School Board they want nobody else in there, they don't want white people. They don't want colored people. They don't want others. They want their school. Those are things that are just innate. Those are the things that are positive and there's no law that requires them. They just do that. They segregate and state onto themselves. Yes, gentlemen this is a serious question. I realize that all of these cases are ticklish because they involve prejudices and we've got prejudices all over the United States not only in the State of Louisiana. In fact, I'd we've got more throughout the United States and we have in our State. We don't -- we don't try to hurt anybody. I don't issue opinions in my office. This opinion is for black and this opinion is for white. I don't have segregated signs in my office. I receive all the races in my office Mexican, red, green and all, the Irish.
Earl Warren: But General said in --
Arthur J. Goldberg: (Inaudible) of what has happened, then what the Mayor was saying in his statement was, that it was not conducive to the best interest of the city to have these segregated eating places in New Orleans. And therefore, he was instructing the Police Department to prohibit any effort to desegregate restaurants, isn't that what he was saying in effect?
Jack P. F. Gremillion: No, I don't think so, Your Honor, because he did say that he knew of no integrated eating places as well as the chief. But I come back to the fact when you read his statement in view of what had occurred, what was in the papers about the sit-ins in the rest of the cities and about the two that it already happened in New Orleans. That he was a appealing to the prior, to the intellect, and to the peace loving people of the City of New Orleans. And that that's all that he was trying to do. And now the reason I say that is because if he had met otherwise, he had the power to take police in station him McCrory's, in Captain (Inaudible), in Woolworths, in Kress, and all of those stores, but he did not do that. He allowed those people to conduct their business as they wish and as they saw fit. And that is further proven by the facts that this is in the Government's brief and Mr. Nelson admitted it yesterday. That these storeowners have gotten together and decided they were going to open the lunch counters to everybody which was done just recently. So --
Byron R. White: General (Inaudible) the action of the store?
Jack P. F. Gremillion: No. No, it is not. There is no one -- there's no evidence showing any connection whatsoever between the Mayor's statement and the fact that the store manager knew about it or that he used the Mayor's statement as the basis of his decision.
Byron R. White: Well, the only -- the only -- is the only fact that the storeowner that he was following local custom?
Jack P. F. Gremillion: The storeowner said he was following local custom as determined by him. And that he had followed that policy for years, and that he had followed it with other cities and if that was his prerogative, and he is alone.
Byron R. White: Is there any evidence that he knew or heard or being --
Jack P. F. Gremillion: No.
Byron R. White: -- read the Mayor's statement?
Jack P. F. Gremillion: No. There is no evidence. And I stated that earlier, Mr. Justice, there is no evidence to that effect that I know of.
Earl Warren: You didn't say in this case -- didn't the storeowners say that he was following the local custom law and something else?
Jack P. F. Gremillion: Oh yes, because that was his instruction --
Earl Warren: So he was -- he was following the law?
Jack P. F. Gremillion: No. But we had no law. You see that's his statement.
Earl Warren: What --
Jack P. F. Gremillion: That his statement though tradition law --
Earl Warren: Yes and you would found that (Voice Overlap) --
Jack P. F. Gremillion: Because in other -- because in other (Voice Overlap) --
Earl Warren: -- you finally have --
Jack P. F. Gremillion: -- Mr. Chief Justice upon of it --
Earl Warren: Yes, go ahead --
Jack P. F. Gremillion: -- this is important. Because in other communities such as a case we have here, you do have laws. And that's what he was talking about. There was no state law written or unwritten on this particular subject.
Earl Warren: Well --
Jack P. F. Gremillion: He was exercising his own right of choice. And there is no connection?
Earl Warren: Justice --
Jack P. F. Gremillion: -- whatsoever.
Earl Warren: -- Black was just pointing out to you a few moments ago that whether the law in specific terms required such a conduct that if the administration of the authorities were such that it did that it constitutes state action. And here they wouldn't even let the counsel for the defendants interrogate the owner as to what his conversations were with the police prior to the time that this all happened? Suppose they have discussed --
Jack P. F. Gremillion: But didn't -- he said in the record that he hadn't talk to the police if I'm not mistaken. He said he hadn't talk to the police. The police didn't tell him what to do. That was brought out here in the trial of the case. He ask -- he talked to the policeman, he says, What must I do? And the policeman says, All you can do is to ask them to leave. And he says, but he had already done that, do you understand?
Earl Warren: No, I don't quite understand. That I didn't quite understand in that way, General. I thought that --
Jack P. F. Gremillion: Yes.
Earl Warren: -- Mr. Nelson wanted to inquire what the relationship between the manager and the police was before this thing happened and the trial judge would not permit him to answer the question.
Jack P. F. Gremillion: Well --
Earl Warren: But --
Jack P. F. Gremillion: Let me say this --
Earl Warren: -- whatever it is, if it's in the record we have it, don't worry.
Jack P. F. Gremillion: But if -- if it was -- if it was denied to him. If I would've been defending those people, I would sought some other way to get it in. And I don't think that Louisiana should be held responsible for the negligence of -- because the attorney is competent as my friend in Louisiana maybe.
Earl Warren: But you would have thought it was immaterial?
Jack P. F. Gremillion: No. Not if I have been an Assistant District Attorney or if I had been a judge, no, because it was not sufficient to prove the material or the res gustae, or the essential allegations for a conviction. And in that, I know Judge Clark very well. By the way, you --
Speaker: (Inaudible) the evidence we have here. There would still have been left the question of whether or not the storeowner was or wasn't exercising his own choice.
Jack P. F. Gremillion: But that was proven, Your Honor. That was proven. That actually was proven that he alone made that decision, that's in the record.
Hugo L. Black: But this unlike many other defendants as I read the record. He didn't want to stand on but it didn't set up at time, he wants to offer another evidence and show that was not (Inaudible) and if that's true, if it was the choice of the Mayor which he follows rather than his own, then of course the principle on which you stand, the owner has a right to act on his own judgment wouldn't apply, would it? If it was the choice of the Mayor rather than the -- and the police rather than --
Jack P. F. Gremillion: Oh yes, I see what you're getting that. Oh yes. If the Mayor had sent instructions out by public and so forth, and said, Now look, you don't let anybody come in here that would have been state action, there's no doubt about it.
Hugo L. Black: There is one thing --
Jack P. F. Gremillion: But that did not happen in this case.
Hugo L. Black: If one thinks that the record leaves that question unanswered because the Court right -- have mistaken there are -- whatever it was, made or mistaken and not let evidence get in, then of course the case should be reverse, doesn't it?
Jack P. F. Gremillion: Well, I don't see that it should be reverse.
Hugo L. Black: Well, I understand that (Voice Overlap) --
Jack P. F. Gremillion: Sent back if there is crucial evidence.
Byron R. White: General (Inaudible), I don't let anybody in the store and the department store hadn't anyone in the store into the lunch counter.
Jack P. F. Gremillion: That would have been state action.
Byron R. White: Well it would have been a state action because you still have a question left of the -- of whether or not the storeowner say, I agreed with the Mayor no matter what the Mayor said I would have done anyway. If he had told me to let them in, I was going to leave that and I was going to keep them out.
Jack P. F. Gremillion: Well --
Byron R. White: Isn't there still -- has the question of whose will, whose decision it was?
Jack P. F. Gremillion: Well now, I don't think so, Mr. Justice White, because the -- all of that was thoroughly going into both on the motion to quash and both on the trial of the cause that Mr. Nelson cross examined Mr. Barrett and Mr. (Inaudible) very, very thoroughly and that was brought out.
Byron R. White: So you would say then as to that --
Jack P. F. Gremillion: That the question of what the National Policy was kept out of the record --
Byron R. White: You will say then that if there was -- if there was an expressed, there was an expressed statement by the Mayor, some other official ruling or directive to keep Negroes out of lunch counters that that implements it.
Jack P. F. Gremillion: Oh yes.
Byron R. White: When they keep it up -- when they keep him out no matter whose decision it was after that, you would say that -- that the --
Jack P. F. Gremillion: If there had been some showing that the Mayor or even the Chief of Police said these things -- we're not going to permit him, we're going to put police at the doors. You were instructed to call us immediately and we will arrest them for you, yes that could be state action.
Byron R. White: Well as long as the -- as long as the Louisiana had had a state law or a municipal ordinance forbidding the storeowners to let Negroes come to lunch counters. That would -- that would indicate as far as you're concerned.
Jack P. F. Gremillion: Oh yes. But we don't have such a statute and we never --
Byron R. White: Regardless of whether -- it would have been constitutionally unsound.
Jack P. F. Gremillion: That's correct. But I'm -- I will repeat. We have no such statute, no ordinance and we never had.
Byron R. White: Yes.
Earl Warren: Mr. Nelson.
John P. Nelson, Jr.: May it please the Court. I was on Mayor Morrison's staff for four years as an Assistant District Attorney fully aware of the problems involved in Mayor Morrison's administration. I might not point out to Court that the reason why they have a sign on Negro motels by colored only is because of a state statute that segregates inns, hotels, and places where people go in. The Attorney General must have forgotten above that statute or overlooked it.
Earl Warren: Is that statute in your brief?
John P. Nelson, Jr.: No, it is not sir. But it's still in full force and effect and it's one of the reasons why the New Orleans hotels have never desegregated specifically mentioned.
Earl Warren: Would you mind giving us -- would you mind giving us a citation of that, Mr. Nelson?
John P. Nelson, Jr.: I will. It's in the Government's brief --
Earl Warren: Well it's in the Government's brief --
John P. Nelson, Jr.: Yes.
Earl Warren: Yes, very well, never mind that we --
Hugo L. Black: Would you say that that occurred?
John P. Nelson, Jr.: It's never been repealed. It's on the statute right now.
Hugo L. Black: But did you say precisely what it could do?
John P. Nelson, Jr.: It segregates hotels. The Negro and white cannot live under the same roof together in Louisiana in a hotel in -- today. And that is not a question of state policy and the reason why this man would leave Baton Rouge as fast as he would because the police would have ejected him not because of --
Hugo L. Black: Would that apply to a store?
John P. Nelson, Jr.: Sir?
Hugo L. Black: Would that apply to a store?
John P. Nelson, Jr.: Sir?
Hugo L. Black: Do they have one covering of the store?
John P. Nelson, Jr.: No sir, they do not. Another thing, please gentlemen, if you send this case back, give us some directives, some limitations within which we can try this case. To try cases like this in Louisiana courts today from a defendant attorney standpoint is a trying ordeal. Particularly when you get the Attorney General of the State that makes statements above race rights due to picketing and maybe that's what Mayor Morrison was referring to, you know what the picketing consisted of? One picket walking on a sidewalk behind Woolworths on Ardebil Street was arrested. This is the man that represents him. This case is now depending before the Louisiana Supreme Court. This is the case that the Attorney General said it was about to cause race riots and massive picketing, and people picketing push -- pickets pushing people off the sidewalks in the French Quarter, one picket. Now, there is a -- there is a great deal of play in Louisiana in politics. The statement is when you run for political office, you play in South Louisiana and you pray in North Louisiana. Now, this same thing is being done here. We say one thing in New Orleans and thing here. And the thing is, is that we are trying to somehow to get into the main stream of a legal life that's going on in United States in Terrebonne Parish the unions. Do you think they want to segregate themselves? This is about -- a case is just about the store, it's five Indians. You know, they force an Indian to go to an Indian school. They can't go to Negro school or white schools in Terrebonne Parish. This is not an Indian reservation. You know they can't go in high school in Terrebonne Parish. They've got a two room grammar school there. And when they want to go to high school they have to tree hours to another parish. Do think they want this as the Attorney General would have you believe? Members of this Court, basically, this is not a question to eat a hotdog with a white man. This is a protest and dissent in an effort to change attitudes to try to develop that consciousness of a community to choose justice and equal treatment. Basically that's what this is.
Potter Stewart: (Inaudible) the restaurants are now intergraded, is it not?
John P. Nelson, Jr.: Yes, sir.
Potter Stewart: So the attitudes that have been change and so far as conduct reflects attitude?
John P. Nelson, Jr.: The attitudes in the city New Orleans have greatly changed. If by step across the parish line it has not changed just one walk away depending upon where I am. And there is no question that in the -- in the City of New Orleans the attitudes have been changing. That's --
Arthur J. Goldberg: Mr. Nelson, your answer in the hotel situation. I thought that the Attorney General statement was the correct one that the State have previously had statute banning segregation or the requiring segregation and he have appealed that statute, isn't that correct?
John P. Nelson, Jr.: On hotels and motels are desegregated, now am I mistaken, Mr. General? They say, they have a statute in full force in effect to be segregated. You mean Negro can walk into the Roosevelt Hotel?
William O. Douglas: No statute -- no statute covering the integration, the public integration of motels and --
Arthur J. Goldberg: Well, I don't want to belabor the point but I -- I have though that what happen said was that there has been a statute requiring segre -- requiring this segregation. Opening inns to everyone and their statute has been repealed.
John P. Nelson, Jr.: That's correct.
Arthur J. Goldberg: Now, the law now stands there are no statute at all.
John P. Nelson, Jr.: Well, you're talking about a -- the little civil rights statute that we have.
Arthur J. Goldberg: Innkeeper statute.
John P. Nelson, Jr.: If there was until 1954 when it was repealed.
Arthur J. Goldberg: That is correct.
John P. Nelson, Jr.: But today hotels are segregated by statute in the City of New Orleans and the State of Louisiana.
Arthur J. Goldberg: I don't find such a statue quoted in the Government's brief.
John P. Nelson, Jr.: Well, in any event, I will -- I will correct that if I'm mistaken. If I see --
Earl Warren: If you find such a statute, will you make a memorandum of it with the Court please.
John P. Nelson, Jr.: I will. If might -- or to New Orleans City ordinance he says, -- but any event I will correct that. If I might just sum up in a hurry, as I see to this Court the job, the issue here there are three: Number one, the determination of state action in these cases, number two the question of defining the limits within the which a protest might be made in a store which is open to the general public and in defining those limits, you also set a limitation on the power of the State to prevent that particular right being exercised, and the third is brought by Justice Douglas, the question of whether there is state involvement per se in the operation of a store such as McCrory's or Kress or Woolworths. Now, in so forth --
Hugo L. Black: How could you distinguish between McCrory and Woolworths?
John P. Nelson, Jr.: No sir, they are not.
Hugo L. Black: -- that's for the store.
John P. Nelson, Jr.: -- it's the same, they're identical. They're identical.
Hugo L. Black: Whether that's corner store where the man lives in it or didn't live in it?
John P. Nelson, Jr.: That there's no one who lives there it would --
Hugo L. Black: I know but you would -- if it would apply to McCrory's and the other, it would have to apply for the smaller ones, wouldn't it?
John P. Nelson, Jr.: It would apply to any store open to the public.
Hugo L. Black: That's right.
John P. Nelson, Jr.: Now, I do not say we don't have to cons -- we do not have to concern ourselves with the question of whether the Metropolitan Club or the Boston Club in the City of New Orleans because you have an element of privacy there. You have an element of privacy that you don't -- you do not have in McCrory's or Woolworths, or Kress. And that element may make a tremendous step and so here we concern ourselves with a piece of property that's open to the entire public. That's the -- that's a public store affair that men have given up their rights to any type of privacy in it. I -- so the question is on that issue --
William J. Brennan, Jr.: A retail house there is not being a home?
John P. Nelson, Jr.: No sir. So on -- on that issue, the question that we're looking for that -- if this Court -- if this case is sent back specifically looking for guidance is whether or not these kids who have protested on this open property or exercising a First Amendment right, and whether that right will be preferred to the corresponding property right of racial discrimination that a man may have, which would of course then be exercised by prosecution and subsequent sentence. I say if we start with Marsh and which was no state action a privately owned town in Marsh. And as I appreciate the case --
Hugo L. Black: Marsh, as I recall it, didn't say that a state couldn't have laws that are against trespass, they have to warn you of leaving the property after notice.
John P. Nelson, Jr.: No sir. But the way I read the Marsh with the privately owned town of Marsh but no state involvement. This was the day -- this was set up as a characterization of a particular piece of property so as to define the limits of legal rights being exercised on it, apply that to McCrory's. And then we come up to date on the Shelley versus Kraemer. And I submit that on the basis of these two cases, as far as I appreciate the jurisprudence, we can come to an answer -- we can come to the -- to the legal conclusion that the preferred right of these kids to demonstrate in a manner in which they did, and the circumstances which were -- within which the act took place and the environment that covered the whole thing that to be accused of trespassing was a depri -- was a violation of their Fourteenth Amendment rights.
Hugo L. Black: May I ask you just one thing. I don't -- I want to see just the exact link of the argument you've just made.
John P. Nelson, Jr.: Yes sir.
Hugo L. Black: Are you saying that the State is without power by reason of the Federal Constitution or that owners of property of the store were unable because of the Federal Constitution to decide who they'll sell and who they want to sell and the conditions under which they will serve customers of the store. Do you have to go that far in this case?
John P. Nelson, Jr.: Because of the strong state action in this case --
Hugo L. Black: Well that --
John P. Nelson, Jr.: -- I think we can go that far.
Hugo L. Black: I understand. I understand that fully. But the issue, basic issue, when you get to bottom of some of these cases here whether an owner of a store can do this and whether because he has a right to do it, the State can call its officials to help enforce his legal rights.
John P. Nelson, Jr.: In McCrory's, or stores open to public.
Hugo L. Black: Well, all stores open to the public.
John P. Nelson, Jr.: Well not -- not the Morrison's cafeteria in the city. They stopped at the sidewalk. I wouldn't say that it was open to the public, not Saenger Theater. It's a property that's vested -- it has a public faculty about it. But it's really not open to the public and they might -- they put on white only sign the barbershop that might want just to wait on white man. The manicurist --
Hugo L. Black: Could they say that?
John P. Nelson, Jr.: Sir?
Hugo L. Black: Could the barbershop say that?
John P. Nelson, Jr.: Could he say it?
Hugo L. Black: But the Fourteen Amendment forbids the barbershop saying that.
John P. Nelson, Jr.: Well Your Honor they --
Hugo L. Black: That it will serve only white or serve only colored. Why does your argument take it too on the case of that county?
John P. Nelson, Jr.: I won't -- well we're not -- I haven't. Frankly, to answer your question I have not thought that through yet. Because they have an element of privacy -- of privacy, an element of privacy in there, that we don't have in the McCrory type situation where you --
Hugo L. Black: But I find a bit trouble to myself. It's maybe because I'm too liberal. But I find a great trouble myself seeing some store, some merchant dealers down there can choose their customers and some cannot. It would seem to me that if the man and the country place could by his door is wide open to everybody who wants to come in and you tell them not to. He would be governed by the Constitution on that just the same as McCrory or if the Constitution forbids him to choose his costumers on account of color.
John P. Nelson, Jr.: Sir, if the -- if that is the predominant right, every, every dispense of a goods of the City of New Orleans could refuse to serve every Negro, at what point then --
Hugo L. Black: Well, are you -- are you saying that the Federal Constitution without any legislation to back it, bars a merchant from following that course, that is, as I understand it, it's ultimately the basic issue that would sometimes have to be reach in some of these cases, maybe not indeed?
John P. Nelson, Jr.: Not indeed, sir. And insofar as the -- as to whether the Constitution would prohibit a manager from actually serving the costumer I would approach it on this that I believe that the Constitution would prohibit a Negro from protesting at that very counter if it's open to the public, that he'd not be serve. And that for that protest I don't think he should be -- the Constitution keep him out of jail.
Hugo L. Black: The question behind that would still be whether he can go into a mercantile establishment against the will of the owner or stay there against the will of the owner in order to make his speech of protest. Are you saying he could?
John P. Nelson, Jr.: Absolutely, under circumstances of which these demonstrations took place I say this was free speech and they were invited in and they can do it. I respectfully submit that they can.
Byron R. White: I understand with reference to your argument, that you are in fact saying that no matter what how you answered the question of whether or not a storeowner has the right to discuss it -- that it's unquestionably clear that the State has no right to chose them for it, and that in this case, the State chose them for it.
John P. Nelson, Jr.: That's right.
Byron R. White: That is one of your -- one branch of your argument.
John P. Nelson, Jr.: That's correct.
Byron R. White: And if you're correct on that whether these other questions are in the case.
John P. Nelson, Jr.: That's correct, sir.
Byron R. White: Is that true?
John P. Nelson, Jr.: That's true.
Byron R. White: And it's only if you answer that question in a certain way that you must reach the other branch of your argument you'd stated today in which I didn't understand you stated yesterday, that a store is such an establishment. That it may not discriminate because a store per se is a state action for the purposes of the Fourteenth Amendment.
John P. Nelson, Jr.: That's correct. But with the requesting of court possibility that this case may be sent back for a new trial. And I would respectfully request that that'd be done, that these questions in this case of these issues be defined so that we'll have some guidance to prevent the reappearing in 1964.
Hugo L. Black: May I ask you if we sent back under Louisiana law whether it would now be moot since all of the stores are permitting them to come in?
John P. Nelson, Jr.: I don't think that we --
Hugo L. Black: But I --
John P. Nelson, Jr.: -- I don't think the governor would dismiss these cases. The environment is not -- that I don't know. I -- I'm sure it would be moot, be a question of whether the District Attorney would want it just arbitrarily nolle prosequi the cases.
Hugo L. Black: But if they're -- would be moot then, they're moot now.
John P. Nelson, Jr.: Well I don't -- there is -- there is a jail sentence facing these kids --
Hugo L. Black: Well, there still would be but how would it change if these cases were sent back how in terms of mootness would the situation had been changed?
John P. Nelson, Jr.: Well, if they know mootness insofar is concerned.
Hugo L. Black: (Voice Overlap) I mean that somebody has to take some actions before the State would do that?
John P. Nelson, Jr.: That's correct, sir.
Hugo L. Black: But if there had been a statute in that state which forbad this to be done, and the State had changed it, many states hold under those circumstances the pending actions obeyed cannot presume the same thing would be through of the judgment. Although not a statute, it's a common law it -- it's a custom. The law has been forbidden and that law changes, their custom changes, the practice of the State changes, the State could well hope if it wanted to and it might that all actions pending on it had obeyed it, but that was the question.
John P. Nelson, Jr.: Your Honor, of course they -- Louisiana and I respectfully submit it would not because it depends -- would not, because the pendency of absolved.
Hugo L. Black: If we affirm this judgment. We have to do it on the basis on the assumption that this person goes to jail.
John P. Nelson, Jr.: You would. There's no question --
Tom C. Clark: Perhaps the governor would be soft-hearted in pardoning for something. We couldn't make that assumption.
John P. Nelson, Jr.: No sir. Because of the fact there's -- the pendency of so many cases in Alexandria, in Shreveport and in other areas in Louisiana where this is still a vital issue. Thank you.
Earl Warren: Very well, Mr. Nelson.