Dresner v. Tallahassee

PETITIONER:Israel Dresner et al.
RESPONDENT:City of Tallahassee
LOCATION:Alabama State Capitol

DOCKET NO.: 35
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: State appellate court

CITATION: 378 US 539 (1964)
ARGUED: Oct 23, 1963
QUESTION CERTIFIED TO THE SUPREME COURT OF FLORIDA: Dec 02, 1963
DECIDED: Jun 22, 1964

ADVOCATES:
Carl Rachlin – for the petitioners
Edward J. Hill – for the respondent
Howard W. Dixon – for the petitioners
Roy T. Rhodes – for the respondent

Facts of the case

Question

Audio Transcription for Oral Argument – October 23, 1963 in Dresner v. Tallahassee

Howard W. Dixon:

Mr. Chief Justice and members of the Court.

In the spring and summer of 1961 had begun a new phase in the struggle to obtain integration in the south and to arrive at a new level of dignity of mankind as we would further have it under our democracy.

On June 15th, 1961, the petitioners’ news case as part of a “Freedom Ride” arrived in the respondent city, the City of Tallahassee as part of a test.

They testified that they wanted to bear witnesses as — as ministers, rabbis and clergymen to the struggle to obtain those rights guaranteed them by the Constitution.

But first, in order to bear witness, they wanted to test transportation facilities to determine if there were facilities available on an integrated basis.

What is a test?

Legally, a test to this kind is not quite the same thing as what we mean by a legal test.

We would define it for the purposes of this case as an opportunity to determine the availability of one’s constitutional rights and to do so peaceably until that right is made available.

Their first test in Tallahassee came when they arrived in a clearway to a bus terminal.

They were met by some citizens who obviously hostile and menacing to a certain degree.

They were also met by what the police department and into the police termed “adequate police protection”.

Some of them tested the facilities of the bus terminal by eating in the coffee shop, testing the restroom and the waiting room.

Potter Stewart:

Were these petitioners of the negro race?

Howard W. Dixon:

These petitioners are clergymen of the white and negro race, ministers and rabbis.

Potter Stewart:

Insofar as they are on the white race, how could they test the question of whether or not restaurants were integrated?

Howard W. Dixon:

And — they could test that because the south literally objects to the mixture of the races in any social situations as well as to the injection of any negroes into a social situation or into a situation that legally — that we — we legally we maintain is their — by rights under the Constitution.

In short, by the — in — by their mixing, it is a violation with the morals and customs of the south.

Potter Stewart:

Well, if this was specifically addressed, I thought you told us to restaurant?

Howard W. Dixon:

The bus terminal at this time.

Potter Stewart:

The bus terminal?

Howard W. Dixon:

Yes, sir.

But however, the citizens of Tallahassee, if I may describe Tallahassee, it’s a city shorts — short distance from the Alabama border and its settlements are more of those of Montgomery, Alabama than say, Miami.

It is the city that is 475 miles distance from the most metropolitan area and retains the flavor and color of the old competitor.

In the process of testing, they — they had arrived at the terminal’s point, the City of Tallahassee and they proceeded to go to the Tallahassee terminal to take air transportation back to their homes in the north.

Some of the passengers, when arriving, confirmed their reservations and proceeded to take the plane out that was due at the airport at about 3:25 on June the 15th, 1961.

Potter Stewart:

What had happened in the bus terminal?

Howard W. Dixon:

Another thing Your Honor, they have been allowed to test and they —

Potter Stewart:

Allowed to —

Howard W. Dixon:

Allowed —

Potter Stewart:

— test.

Howard W. Dixon:

— to test the facilities and they have now moved on to the airport.

They had no — there’s no — as we’ve just said, that was the purpose of coming to Tallahassee.

They now have moved on to the airport to return to their homes in New York and Washington —

Potter Stewart:

This is the next day?

Howard W. Dixon:

Yes — no, sir, the same day.

Potter Stewart:

Same day.

Howard W. Dixon:

Within an hour.

They arrived at the airport terminal about 1:30 p.m.

They were there at the bus terminal about 12:30.

Earl Warren:

Were they served in any of these other — other facilities?

Howard W. Dixon:

They were served at the bus terminal.

However, went — when they — they were eight —

Earl Warren:

Oh, I meant in the restaurant, the facilities and so forth.

Howard W. Dixon:

Yes, sir.

At —

Earl Warren:

They (Voice Overlap) —

Howard W. Dixon:

— two point they got to the airport.

The petitioners decided that as they had been adequately served so they went to the airport terminal restaurant.

And the airport terminal restaurant is an integral part of the terminal.

In that, there was only a glass wall separating it from the waiting room itself.

As they approached the door to the restaurant, they saw on the door an informally lettered sign reading “close”.

Upon being — inquiries being made by the spokesman, the manager of the restaurant advised them that they were closed for mapping up and they would reopen at 4:30.

At that point, they determined by a vote among themselves that they would cancel their reservation to enjoy a cup of coffee when the restaurant reopened at 4:30.

Potter Stewart:

How much group is this?

How many were they?

Howard W. Dixon:

Ten petitioners.

Potter Stewart:

Ten.

Howard W. Dixon:

They found in this terminal restaurant that there were segregated facilities, that is to say there was a room for the negroes and negro — room for the whites and separate restrooms facilities and a separate eating facilities for negroes as opposed to whites.

However, the place in which they wished to eat was obviously the white restaurant because as they looked into the glass wall with the sign reading “close” on the door, they saw white people eating inside the restaurant.

And in — later in the testimony, the manager of the restaurant testified that the restaurant was usually open from 6 a.m. until 11:45 in the evening.

Howard W. Dixon:

So they waited until 4:30 and when the restaurant did not open, they sat in the waiting room until the terminal close that evening, until 11:45 p.m.

Now, during that time, they were adequately guarded by the police, the city testified to that effect.

They were a number of people outside or perhaps were just curious to see them and some of them who were hostile to the point of violence.

The city manager of Tallahassee testified that there were never anymore to three or four cars or perhaps four or five people in each of the cars outside of the terminal.

They — at the end of the close of the day when the terminal restaurant close down, they obtained transportation back to the City of Tallahassee and lodging and in — of course, in the meantime, they had made reservations on the plane to leave the following morning at 8:30 a.m.

And the next morning, they were back there at 8 a.m. and again they approached the restaurant and again the sign “close” was on the door.

Potter Stewart:

Where they spent the night, does the record show?

Howard W. Dixon:

No, sir.

They spent the night at sympathizers and negroes of the community who were supporting core and these activities.

So when they were back the night — the following morning, they saw the restaurant signs still there.

They cancelled their reservations and made tentative reservations for 1:30 or 1:45 that afternoon.

They, again, sat in the restaurant and again, they had adequate police protection, and again there were some people who were outside who were hostile to them and do exhibit some feelings of violence.

Along towards noon, they saw that again, the sign was not going to come down.

The walls of Jericho were not going to fall.

They cancelled their third reservation.

Now, the city makes a great deal to do about the cancellation of these reservations but we maintain that it’s between a private corporation in the airlines and these individuals and there’s no concern of the city how many cancellations of reservations they had made.

And upon that happening in — within half an hour, they were approached by the city attorney for the City of Tallahassee who identified himself as the special police officer of the city and said, “I am advised that your assembly here was tend to create a disturbance or incite a riot or disorderly conduct within the City of Tallahassee.

And in the name of the State of Florida and the City of Tallahassee, I command all of you who are here, assemble immediately and peaceably to disperse.

If you do not immediately and peaceably disperse, I shall arrest you or charge to be arrested for unlawful assembly.”

Reverend Collier, the spokesman for the group stated simply that “it’s lawfully we’re here under the protection of the Interstate Commerce Act” and he sat down.

The City Attorney Messer immediately ordered the officers to arrest the 10 petitioners and they were taken to the jail and booked.

The following morning, several of the petitioners out on bond and in haste to return to the various portions, they did it because it was Saturday and they had to get back to preach, went by the terminal restaurant and again, the sign was close but again, there were white people inside the restaurant.

But again, in — with regard to this restaurant, it had opened up Saturday morning and was only closed apparently when the petitioners came by to board their plane after they were released from jail.

The trial proceeded on the following week on June 22nd and petitioners’ counsel filed a motion to quash which raised due process under the Fourteenth Amendment, the First Amendment rights to equal protection of laws and the protection of the Interstate Commerce Act.

In the trial, there was no evidence whatsoever as — as to any unlawful rioters or to move to its conduct.

However — and in addition thereto, the testimony adequately discloses that there was complete police protection provided for the petitioners at all times.

Now, the Florida statute provided that in order for that to be unlawful assembly, there had to be of any persons or persons whether armed or not unlawfully, riotously or tumultuously assembled within the City of Tallahassee.

The mayor or any officer specified in the statute within the opinion of the said mayor or any officers, there is — the assembly of such persons shall tend to create a disturbance or incite a riot or disorderly conduct.

The mayor may go among the persons or the duly delegated officer and advised them to disperse and if they failed to do so, they will be considered guilty of the crime — charge of the crime.

The evidence failed to disclose that these facilities were not integrated, that is to say, every — every witness who has something to do with the facility testified that these were a segregated facilities from the — actually, the white waiting room and separate negro waiting room to the restroom and into the restaurant themselves.

Potter Stewart:

Was the — was the restaurant ever — was the restaurant at the airport ever opened during the period that these people were there?

Howard W. Dixon:

Never opened during the period these people were there.

There were people eating in the restaurant —

Potter Stewart:

When they first got there but there was a sign saying “closed”?

Howard W. Dixon:

Yes, sir.

And one of the petitioners, I presumed they got hungry at sometime of the day, went around to the kitchen and found that they were preparing meals for the airplanes and that the chief of the detectives was eating in the kitchen but I don’t think my petitioner felt that he could necessary do the same thing.

The record is bearing that the — that the petitioners had any notice that the restaurant was closed was a reason given by the restaurant manager in his testimony.

He testified that they closed the restaurant because they were under repair.

Upon close requesting he admitted they had two reasons, the one thing that they want that heard about this “Freedom Ride” in Alabama and other States and that they wanted to avoid violence so they took this opportunity to close to make the repair.

But there is a (Inaudible) testimony to the effect that before and after the restaurant was open and providing service for white customers.

The — at the close of our case, we also introduced — reintroduce some motion to quash on the same constitutional grounds.But petitioners were found guilty and fined $500 each or in default thereof they were given a 60-day sentence.

An appeal was taken directions to the Florida Supreme Court on the basis that the Tallahassee statute was taken directly from the state statutes and was — was adopted in direct reference thereto but the Florida Supreme Court under its jurisdiction, which allowed them to construe a state statute, said this was not a state statute and claimed that we had improvidently lodged our appeal in that Court and referred it back to the Circuit Court of Leon County.

The Circuit Court of Leon County, we pursued our appeal and the Court affirmed the decision of the lower court.

Under the State Constitution, Article 5 Section 6 Paragraph 3, the state court is the highest appellate court from cases arising in the Municipal Court.

We therefore have brought these petitioners a writ of certiorari to this Court.

Now, the —

Well, I have understood there was alleged state ground for this case (Inaudible) writ of certiorari (Inaudible) namely, that under your State Constitution, state procedure, there was available to you as common law writ of certiorari for the Supreme Court of Florida.

If so, you just make it — make that application and therefore, we (Inaudible)

Howard W. Dixon:

Well, Your Honor, the —

I don’t (Voice Overlap) —

Howard W. Dixon:

— common —

— any — I thought they were responsible to exchange back and forth on this thing before the advantage of writ, then I find no argument (Inaudible)

Howard W. Dixon:

Your Honor, we find that the common law writ of certiorari is discretionary and is the old common law form that is to say is very limited and restricted in a scope.

It’s limited to the jurisdiction and to determining what are the essential requirements of law.

Certainly, in — this Court has considered the cases arising from Texas in Largent versus Texas and Tucker versus Texas where it was a question of Jehovah’s Witnesses and so forth where there was a highest court, appellate court that the petitioner could go.

And so, from the county court in Texas, they went directly to the Supreme Court on an appeal.

Well, of course, perhaps, you could consider our writ of certiorari in the ground — actual basis as being an appeal but we feel that we could not get a full review in the Supreme Court of Florida.

Therefore, we could come here because it would present to the federal questions which under Magnum — (Inaudible) you — you — on the petition for writ of certiorari, you’re mostly concerned with important questions of public interest which we think is this.

Hugo L. Black:

But may I ask you, what case we thought that we can look to see that the review is such a limited nature that doesn’t amount to — in a review? There was a case to that effect?

Howard W. Dixon:

Yes, sir.

Howard W. Dixon:

I think that the case in — in —

Hugo L. Black:

What is it?

Howard W. Dixon:

— States versus Katz.

Hugo L. Black:

State versus what?

Howard W. Dixon:

State versus Katz.

Hugo L. Black:

How you spell it?

Howard W. Dixon:

K-A-T-Z and State versus Smith.

Hugo L. Black:

Where are they?

Howard W. Dixon:

That’s 108 So.2d 60 which outlines completely the — the limited scope of calling all writ of certiorari in court.

Hugo L. Black:

Where is the other one beside it?

Howard W. Dixon:

Oh, I’m sorry, sir.

State versus Smith is 118 So.2d 792.

Hugo L. Black:

I asked you that because, Alabama, your neighboring State has a system of appealing to the Court of Appeals while it was originally thought, as I recall it.

If there — that went in to review the Supreme Court held differently, instead, held that they had a common law right a rule of right to bring a full common law writ of certiorari and the Court would therein decide whether the decision of the Court of Appeals had rarely been against the law of the State as announced by the Supreme Court, is that about what’s done in Florida?

Howard W. Dixon:

Something like that, Your Honor, I’m not —

Hugo L. Black:

But why wouldn’t — that has turned out to be a — a right to practice a plenary review in the court of — Supreme Court of Alabama?

And I don’t know just — what your State is —

Howard W. Dixon:

Well —

Hugo L. Black:

(Voice Overlap) —

Howard W. Dixon:

— we are not allowed a — a right of review as a matter of right —

Hugo L. Black:

I understand that.

Howard W. Dixon:

— to a Supreme Court.

Hugo L. Black:

You can get there by a discretionary writ.

Howard W. Dixon:

Yes, sir.

But it will not present the federal questions.It will not present a full review.

William J. Brennan, Jr.:

Well, Mr. Dixon, perhaps, I — I must say you’re a part of practice, it just completely be funny you made in the last couple of years in many cases that have come from your State.

And I — do I read your law correctly as providing nearly two certiorari forms, a certiorari to your Supreme Court.

Isn’t there some form called certiorari which is a discretionary review in the Supreme Court provided for by your Constitution now?

Howard W. Dixon:

Well, I think it said that under the statute that is the common law of writ of certiorari but as far as —

William J. Brennan, Jr.:

Well, is that the only form of certiorari?

Howard W. Dixon:

Yes, sir.

That’s the only —

William J. Brennan, Jr.:

You don’t have some certiorari in — in the couple of our own which is appellate in form?

Howard W. Dixon:

Well, we have a writ of certiorari that is granted in — from administrative decisions to higher courts.

But that — that —

William J. Brennan, Jr.:

No, I’m speaking only of how you get to your Supreme Court from your intermediate Court of Appeals.

Your intermediate Courts of Appeals have only been existing a few years, have they not?

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

Now —

Howard W. Dixon:

(Voice Overlap) few years.

William J. Brennan, Jr.:

Well, now — maybe you can tell me, is there one or more forms of certiorari review in your Supreme Court, common law form and an appellate form?

Howard W. Dixon:

Just the one common law form.

William J. Brennan, Jr.:

Just the one common law form.

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

Now, is that an original writ or is that a — a step in the — in the process?

Howard W. Dixon:

It’s — it’s an original writ because if you take in — if you can take a writ of certiorari say from my Circuit Court to a Circuit District Court of Appeals, then from that decision, if you want appeal for District Court of Appeals, you must take an appeal to the Florida Supreme Court.

William J. Brennan, Jr.:

An appeal?

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

So there is a way of getting to your Supreme Court by appeal, is this some right?

Howard W. Dixon:

Well, after you — after you got into the District Court which, of course, is discretionary, that would seem to me that you could appeal as a matter of right, yes, sir.

But you’re getting there will be discretionary under the common law writ.

In other words, we would not have to follow that in order to apply here for a petition for writ of certiorari.

William J. Brennan, Jr.:

I am not so sure you wouldn’t if — you may get a review on your federal questions on a discretionary writ in your Supreme Court, why would you have to pursue that before coming here to us?

At least exhaust that advocate.

Why would you have to do that?

Howard W. Dixon:

Well, because it doesn’t give a full review and in addition, we — we would feel —

Tom C. Clark:

But doesn’t here.

William J. Brennan, Jr.:

You mean it doesn’t give — you couldn’t get your federal questions reviewed?

Howard W. Dixon:

No, sir, we do not plead and we get our federal question reviewed.

William J. Brennan, Jr.:

That you get reviewed what?

William J. Brennan, Jr.:

Only the question of the jurisdiction —

Howard W. Dixon:

Jurisdiction —

William J. Brennan, Jr.:

— of the persons and subjects matter, is that all?

Howard W. Dixon:

Yes, sir, an essential requirement.

William J. Brennan, Jr.:

Well, then it can’t be such as Mr. Justice Black just suggested to the Alabama files, where you can get a review whether the decision below is contrary to state law has state as the Supreme Court has announced it.

Howard W. Dixon:

I don’t think it could be that.

No, sir.

Tom C. Clark:

I thought you’ve been — I don’t know a thing about it.

I made — it was then ever before your election on your constitutional amendment and it was explained to me at that time that there was a writ that you could go to your Supreme Court on constitutional questions, is there such a writ as that?

Howard W. Dixon:

Yes, sir, that is passing directly from the — construing a — controlling position of the Florida or Federal Constitution if it was involved in — in any state statute, as I understand it, the validity of the state statute or federal statute or treaty or construing or controlling provision of the Florida Federal Constitution.

Byron R. White:

The validity of this statutory or constitutional interpretation validity question that’s —

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

But you told as you went to the state court and they said what you had involved here, this Tallahassee ordinance, is it?

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

Was not a state statute for the purposes of that basis of review in the Supreme Court, is that it?

Howard W. Dixon:

Yes, sir.

And they send us back to the Circuit Court because they said this is where our appeal lies.

And of course, according to the Constitution, it says that the Circuit Court is the highest appellate court for cases arising from the Municipal Court.

Hugo L. Black:

I’ve said in the Court’s opinion in this case?

Howard W. Dixon:

Yes, sir.

Hugo L. Black:

Where is it?

Howard W. Dixon:

When — not in the Court’s opinion in this case, it’s in the statute, it’s Article 5.

It will be in Article 5 Section 6 Paragraph 3, it will be in the appendix — well, well, (Inaudible) at the moment, Your Honor, but I’m sure it’s in here several times.

William J. Brennan, Jr.:

But why did you go — didn’t you, at one stage, you — these proceedings go into the District Court of Appeal for certiorari?

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

When was that?

Howard W. Dixon:

That was after we had taken our appeal to the Circuit Court of Leon County.

William J. Brennan, Jr.:

And you had — and you were there — do you — you lost your appeal there, didn’t you?

No, sir, we lost our appeal in the Circuit Court.

Howard W. Dixon:

Yes.

Howard W. Dixon:

But when we took our petitioner for a writ of certiorari, we were a day late in filing.

Now, a —

William J. Brennan, Jr.:

But why — why did you think you had to go to the District Court of Appeal on certiorari?

Howard W. Dixon:

We thought that — we didn’t have to go there.

We thought that it was discretionary if we have filed within the period of time and still would’ve been a manner for — by discretion, whether we went there or we applied here.

William J. Brennan, Jr.:

And because you were a day late there, your application was not entertained and then you came directly to us in the Circuit Court, is that it?

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

I mean, you never did try to go to the Supreme Court.

Howard W. Dixon:

No, sir, not again.

We went there once and —

William J. Brennan, Jr.:

Yes.

Howard W. Dixon:

— (Inaudible).

Arthur J. Goldberg:

Did you (Inaudible)

Howard W. Dixon:

Not a full review.

It couldn’t have given us a full review.

I — and I don’t think that they would have passed on the federal questions which we think are prime importance in this case.

Arthur J. Goldberg:

The certiorari in full review, what kind of review did you think (Inaudible) that?

Howard W. Dixon:

Well, it would be one determining possibly the application of the statute under the Florida Constitution, which we do not feel that if they — after it was applied, would not bring into scope.

The federal questions involved, mainly, a right to be in speech assembly and so forth.

Arthur J. Goldberg:

Did you have the (Inaudible)

Howard W. Dixon:

I don’t think I can, Your Honor.

Well, I noticed in your reply brief (Inaudible)

Howard W. Dixon:

Yes, sir.

(Inaudible)

Howard W. Dixon:

Yes, sir.

(Inaudible)

The narrow question is simply this, your statements in (Inaudible) this discretionary review in this type of situation will have any jurisdictional questions (Inaudible)

If that’s true, then what you say the Court was correct.

You don’t get a full review.

On the other hand, I understood the State to say in its petition in its (Inaudible) done on the petition for certiorari is that limited review of the phrase jurisdiction within the state department under Florida law jurisdiction be used in a broad sense that would’ve permitted you to test the federal questions under these discretionary applications to the Supreme Court.

Now, that’s the issue that’s in (Inaudible)

Howard W. Dixon:

Yes, Your Honor.

(Inaudible)

Howard W. Dixon:

Well, the Court would like the supplemental memorandum brief with the adjective provided.

(Inaudible)

William J. Brennan, Jr.:

Well, Mr. Dixon, if — are you familiar with, should that’s give it I’m sure, Robinson versus State, decision I forgot and I think of your Supreme Court 132 So.2d 3.

And if you are, I’d like to know what your language means that on common law of certiorari, that Court can consider jurisdictional questions and deviations from “the essential requirements of law”, what’s that mean?

Howard W. Dixon:

Well, the essential requirements of law are defined in one case and here as due process.

But I don’t think they mean due process in the times which we have explored in this case that is to say on Thompson versus Louisville.

I think it means more than procedural due process whether there’s a Louisville counsel and so forth and so on.

William J. Brennan, Jr.:

Well, what were the issues you wanted to raise on your application for certiorari to the District Court of Appeals?

Howard W. Dixon:

What we want to raise basically that the statutes as applied was unconstitutional and, of course —

William J. Brennan, Jr.:

Unconstitutional under Florida Constitution?

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

Well, now, if you had — if you had prevailed on that ground, then it wouldn’t have been necessary for anybody to consider the federal constitutional claims, would it?

Howard W. Dixon:

That’s right, sir.

William J. Brennan, Jr.:

And you didn’t get a hearing on that state ground contention because you filed a day late?

Howard W. Dixon:

Yes, sir.

William J. Brennan, Jr.:

But why under ordinary rules that’s — that far you can come here?

Howard W. Dixon:

Well, because we feel that — that writ was merely discretionary and — and we — as that day we could have filed before time and if we didn’t get a decision, we can still come here because we were applying under the federal code from the highest appellate court in our State.

Byron R. White:

But could the — could the District Court of Appeals had considered federal constitutional question?

Howard W. Dixon:

Oh, it seems to me yes, that they could.

Byron R. White:

And you — and you would have taken to them both your federal — both your Florida and your federal constitutional question if your writ of certiorari to that Court had been granted.

Howard W. Dixon:

Yes, sir.

Byron R. White:

And you were a day late?

Howard W. Dixon:

Yes, sir.

Byron R. White:

And that’s why it was dismissed?

Howard W. Dixon:

Yes, sir.

Hugo L. Black:

You said one thing that I have been quite (Inaudible)

You said that — that’s — after you were tried, you thought you have a discretionary right either to go to Court of Appeals — the District Court of Appeals which Supreme Court of Florida are to come here.

Hugo L. Black:

What did you mean by that?

Howard W. Dixon:

Well, that we could go to use the District Court of Appeals or Supreme Court under a restrictive right of review.

Hugo L. Black:

Or we had a discretion to do that or you could come on (Inaudible) directly.

Howard W. Dixon:

Yes, sir.

Under an opportunity to have for review, the — the common law writ in Florida does not provide for a full review of the case below.

And under the circumstances, it will be the same as if in Largent versus Texas, we had filed an appeal from the Circuit Court decision and ask this Court to hear our appeal.

Hugo L. Black:

Well, supposed you had gone exercised what you think was your discretion to go into the Court of Appeals of Florida or the — in the Supreme Court I understood you to say you’ll have a right of appeal directly, do you, if you had gone there, is that right?

Howard W. Dixon:

Well, I think that we will — we are gone there once.

We would probably have filed in the District Court of Appeals.

We tried that and we were late.

Hugo L. Black:

Yes.

And — and suppose you had not been late, do you think you could have brought it on up here then?

Howard W. Dixon:

Not if we already had our appeal filed in the District Court and after they accepted —

Hugo L. Black:

After they acted on it.

Suppose they had acted, decided against you, could you have come up here?

Howard W. Dixon:

Yes, sir.

I think we could have.

Arthur J. Goldberg:

And that would have gone in a higher court (Inaudible)

Howard W. Dixon:

Well, yes, but I think we could come up here because as — under the —

Byron R. White:

(Inaudible) as soon as the Circuit Court — as your Circuit Court acts on an appeal from a Municipal Court’s judgment that you may come from that court directly to this Court without even attempting to get in to the District Court of Appeals or any of your Supreme Court, that’s what you suggest?

Howard W. Dixon:

Yes, sir.

Earl Warren:

Well, what is it in your case that the Court of Appeals could not have reviewed?

Howard W. Dixon:

We’ve maintained that they could not have reviewed the federal questions because it would not have come within the purview of the jurisdictional questions or the essential —

Byron R. White:

You told me how those, the District Court of Appeals could have handled both federal and state constitutional questions in any of your Supreme Court that you would have gotten the restrictive review of this?

Howard W. Dixon:

No, sir.

I’m sorry if I gave that impression, I was wrong.

I would correct that.

They would not — either the District or the State Supreme Court been able to give you full review on the federal questions.

Byron R. White:

But — but they — would’ve on your — on your state constitutional question.

Howard W. Dixon:

Yes, sir.

Byron R. White:

Do you — you mean that in this kind of a case that the Circuit Court is the only court in your — is the highest court in your State in which you may have a review of your federal constitutional question?

Howard W. Dixon:

I don’t know but I — it feels that’s the highest appellate court we have insofar as the full review is concern.

Byron R. White:

Well, that’s what I —

Howard W. Dixon:

Quite possibly —

Byron R. White:

— that’s what I —

Howard W. Dixon:

— under our essential requirement of law, some federal questions may be reviewed.

But we — the State —

William J. Brennan, Jr.:

Well, are there any more essential requirements of law than federal constitutional questions?

Howard W. Dixon:

No, sir, it does not.

You’re right.

William J. Brennan, Jr.:

Yes, I mean offhanded.

Just seems to me you could’ve had the — had you been timely in the District Court of Appeals.

As I read that Robinson case, you could have had a review of these federal questions at least there whether or not you could’ve gather review on the Supreme Court.

That’s — I’m just saying offhand, that’s the way Robinson seems to me to read.

Howard W. Dixon:

Yes, sir.

The petitioners press there — claims under the motion to quash under the grounds of the Thompson versus Louisville decision which stated that the lack of evidence or the lack of any evidence of a crime being committed was a denial of due process.

That also was a claim that we pursued in this Court together with the question concerning the freedom of speech and assembly which even assuming argumendo that the petitioners were found guilty of violating the unlawful assembly law of City of Tallahassee.

They went under any circumstances under freedom of speech and freedom of assembly, then permitted their rights to assemble because the conflict would have to be resolved in favor of the First Amendment.

There were no words of incitement and at all times, the petitioners were peacable and displayed no harshness or any type performed to misconduct whatsoever.

This line of cases, of course, is — it’s been highlighted in the past year by Edwards verus South Carolina and Garner versus Louisiana and so forth.

And the third and chief ground was that the denial of the facilities on — at the terminal that is the restaurant facility was a burden on interstate commerce under the Boynton verus Virginia case.

And as such, this was a denial to them of rights amended under the Constitution.

That way —

Potter Stewart:

Mr. Dixon, you made no claim, did you, under the constitutional guarantee of the free exercise of religion?

Howard W. Dixon:

No, sir.

Potter Stewart:

These men are all clergymen?

Howard W. Dixon:

Yes, sir, clergymen or rabbis.

We did make a claim, however, on the equal protection of the laws.

As you may recall in Wright versus Georgia, this Court said that when the police officer ordered the basketball players to disperse, they said that their order was violative of the Equal Protection Clause of the Fourteenth Amendment and we submit, Your Honor, that this is the importance public issue of this particular case in view of the fact that the south has for years been proving for legal tools in which to maintain the status quo that these cases of such importance that you will consider the petitioners’ petition.

Thank you.

You made no argument (Inaudible) on the brief based on the possible vagrancy of the statute.

Howard W. Dixon:

No, sir, I think that was on — we should have one but hindsight is better than foresight in this case.

Thank you.

Earl Warren:

Mr. Hill.

Edward J. Hill:

Mr. Chief —

Earl Warren:

Would you mind addressing yourself first of the — the question we’ve been — in discussing with counsel or whether they’re properly hear or not?

Edward J. Hill:

I — I think I need to apologize to — to Your Honors, if it please the Court, that we didn’t understand that we would necessarily have to argue the jurisdictional question here because we thought that it had been resolved by the granting of this certiorari.

But the order for certiorari says specifically that the part with our requested to brief the jurisdictional question (Inaudible) petition for writ of certiorari in the Circuit Court in the State of Florida was granted.

Counsel or — counsel or directly to brief and argue the petition to the merit, the question whether the judgment was supported by adequate state ground.

Edward J. Hill:

The judgment is supported on adequate state grounds.

What does that mean?

Edward J. Hill:

We construe that to mean that the — that the statutes and the ordinances around which these charges were framed were constitutional and properly framed and that the necessary proof had been introduced in the trial court to sustain the objections, I mean to sustain the convictions.

We didn’t understand that we would’ve do that to — to argue the question of jurisdiction when the writ was granted because this Court has only two other occasions and I think this counsel himself was involved in — in these matters, tried to come to this Court directly from the Circuit Court of the Second Judicial Circuit of Florida, that Leon County and has been denied.

But we didn’t — we didn’t have any idea that this Court would grant it.

William J. Brennan, Jr.:

That only goes — that only means that we and the board had always speak the same language, doesn’t it?

Edward J. Hill:

Well, sir —

Hugo L. Black:

What case is — were those (Voice Overlap) —

Edward J. Hill:

Those were cases of — I believe its Number 783.

Hugo L. Black:

Of what?

Edward J. Hill:

Number 783, Speed and a case Number 671, Steel and they may have other — other designations.

Hugo L. Black:

When?

I’m sorry.

Edward J. Hill:

When, I didn’t have —

Hugo L. Black:

Are they reported or now reported?

Edward J. Hill:

No, sir.

I would assume they all, sir.

Certiorari was denied.

Hugo L. Black:

You don’t have to report (Voice Overlap) reporting there?

We didn’t say what the ground we denied them or did we?

Edward J. Hill:

Sir, what was that question?

Tom C. Clark:

We did not say what the ground we denied them.

Edward J. Hill:

No — no, sir, you did not.

No, sir, you did not.

In our brief in opposition, we say — we urge on this Court the fact that this causes the third attempt to bypass the highest appellate court of the State of Florida and to have this Court grant certiorari to the Circuit Court of the Second Judicial Circuit in and from Leon County, Florida.

Not only the —

Hugo L. Black:

(Voice Overlap) the same cases?

Is that the same cases?

Edward J. Hill:

No, sir.

That was a case Number 783, Speed, Spagna and Herndon, petitioners against Tallahassee.

Tom C. Clark:

What’s year — (Voice Overlap) —

Edward J. Hill:

Reported —

Tom C. Clark:

What term is it?

Its 783 what?

Edward J. Hill:

I don’t have the term but it’s in 356 U.S. 913.

Hugo L. Black:

That’s what I want to find out.

Tom C. Clark:

(Inaudible)

Edward J. Hill:

Yes, sir.

I had —

Hugo L. Black:

What is the other one?

Edward J. Hill:

The other one is —

Hugo L. Black:

356 (Inaudible)

Edward J. Hill:

That’s March 1958, excuse me, Your Honor, March 1958.

The next one is Number 671 in your March 1961 terms, 365 U.S. 8 — 834.

Not, and as I started to say, not only that petitioners here filed late but they filed without the filing fee which is just absolutely unheard.

They won’t take it at all.

Byron R. White:

Let me ask you.

Is this a — is there some place in the Florida appellate court system that a litigant can have a — have a Circuit Court’s decision on his federal constitutional question reviewed?

Edward J. Hill:

I think so sir, yes sir.

Byron R. White:

Where?

Edward J. Hill:

In the District Court of Appeal in the First District where it happens in Leon County, Florida.

Byron R. White:

He could have — it’s your position that there is a higher court to which federal constitutional question —

Edward J. Hill:

Two.

Byron R. White:

Do you think there are two, even if —

Edward J. Hill:

Yes, sir.

Byron R. White:

— even if the — even if the District Court of Appeals had acted — had taken its case and had rule against the — he could go to your Supreme Court.

Edward J. Hill:

Yes, sir.

It could be certified.

Byron R. White:

Or to a common law writ?

Edward J. Hill:

Well, under — it is the writ of certiorari that they — that they hand out sir.

I — it maybe a common law — a combination of common law.

Byron R. White:

Do you have any — do you have any instances or any citations where the Supreme Court or any opinions of the Supreme Court of Florida has, on a writ of certiorari from the District Court and — your intermediate appellate court where the writ of certiorari, it had dealt with a federal constitutional question?

Edward J. Hill:

I can’t put my finger where — on — one right now but, Your Honor, I — I feel assure that I’ll —

Byron R. White:

What’s the usual route — what is the usual route for an intermediate court to the Supreme Court?

Only certiorari or is there an appeal?

Edward J. Hill:

Certiorari.

Byron R. White:

Only certiorari.

Edward J. Hill:

(Inaudible) — sir?

Only certiorari.

William J. Brennan, Jr.:

No appeals of right at all?

Edward J. Hill:

Not from the District Court, no sir.

William J. Brennan, Jr.:

Not from the District Court of Appeals.

Edward J. Hill:

That’s the intermediate.

No, sir.

Not that.

William J. Brennan, Jr.:

What is it?

Are there some appeals of rights from the court’s first instance to the Supreme Court bypassing the Court of — intermediate Court of Appeals?

Edward J. Hill:

I think when there are constitutes — when there are constructions on state statutes that are passed on by trial court in Florida, you can go directly and that’s what he try to do here.

William J. Brennan, Jr.:

That’s the — bypass the District Court.

Edward J. Hill:

That’s correct.

William J. Brennan, Jr.:

Now, in those instances where you can’t bypass the District Court, you get there by right or is it on writ of certiorari?

Edward J. Hill:

By writ of certiorari.

William J. Brennan, Jr.:

And then your — your point is that he, might on writ of certiorari, had gotten the District Court of Appeal here.

Edward J. Hill:

Yes, sir.

William J. Brennan, Jr.:

And then, a decision adverse to him there, he could have again gone at the Supreme Court again on discretionary writ of certiorari.

Edward J. Hill:

Yes, sir, on certification up from this Court which they probably would have had the right to exercise —

William J. Brennan, Jr.:

Now, certainly you’ve introduce (Inaudible) certification —

Edward J. Hill:

(Voice Overlap) —

William J. Brennan, Jr.:

— is this from the District Court?

Edward J. Hill:

That’s correct, sir.

William J. Brennan, Jr.:

That’s something different from certiorari?

Edward J. Hill:

Well, they certify cases from the District Court of Appeals to the Supreme Court in certain cases, for example, questions of great public interest and the like.

William J. Brennan, Jr.:

You mean before decisions?

Edward J. Hill:

I — I believe that’s after decision, sir.

William J. Brennan, Jr.:

And this is a certification by the District Court of Appeal which does not require any application and — for certiorari to the Supreme Court.

Potter Stewart:

Certification is by the Supreme Court.

Edward J. Hill:

No, sir.

The certification —

Potter Stewart:

Isn’t it?

Edward J. Hill:

— it certified up.

Potter Stewart:

Well, who certifies it?

Edward J. Hill:

The District Court of Appeal.

Potter Stewart:

Oh, and then the Supreme Court has no choice but to take it?

Edward J. Hill:

No, sir.

They — I think they have a discretion.

They don’t have to take it.

I don’t think that lower intermediate court could force it on that.

William J. Brennan, Jr.:

Well, if I might suggest that in my (Inaudible) there has some good reason —

Potter Stewart:

For sharing.

William J. Brennan, Jr.:

— (Voice Overlap) all that.

Earl Warren:

Gentlemen — I beg your pardon.

Hugo L. Black:

Wait a minute, may I ask you if there’s been any labor decision, and that is the State versus Smith, which your adversary cited to us in which I now have before, citing out what kind of rights can be taken up as of 1960.

And it very much follows the rule in Alabama to which I refer in which it says, “And we resist the rule wherein they have — they can bring (Inaudible) with the issue with the Court’s discretion to correct the procedural court wherein they have not observed,” as Justice Brennan read, “those requirements of the law which are deem to be essential to the Administration of justice.”

Then he says, “Failure to observe the essential requirements of the law means failure to accord due process of law within the contemplation of the Constitution are the commission of — and error so fundamental in character is to fatally infect the judgment and render it void.”

Then he says, “It seems to be the southern law of the State that the duty of a court to apply, to admitted facts a correct principle of law, correct principle of law is such a fundamental and essential element of the judicial process that a litigant cannot be said to have the remedy and by due process of law guaranteed by Section 4 of the Declaration of Rights.”

And the — the Alabama ground was that you had to have decisions of law in order to keep the law uniform throughout the State.

Edward J. Hill:

That’s right.

That’s one of the reasons that the Florida State Supreme Court will — will review certain things when they have conflicts between the various District Courts.

Hugo L. Black:

As the federal law has applied in a given case.

Edward J. Hill:

Yes, sir.

Hugo L. Black:

And that seems to me that they can bring it up — bring it up as a —

Edward J. Hill:

Yes, sir.

Hugo L. Black:

— matter of discretion.

Edward J. Hill:

Yes, sir.

Hugo L. Black:

Is there any — is that pretty fairly expressed the rule as you understand it?

Edward J. Hill:

As I understand it.

Hugo L. Black:

Can you give us any later cases?

Edward J. Hill:

No, I — I do not.

Potter Stewart:

You have Robinson against State in your brief, your brief filed here on March 21st of this year, that’s a later case, 132 So.2d 2nd, page 3.

Edward J. Hill:

Yes, sir.

That — that probably — yes sir, I believe that is later.

Potter Stewart:

The Smith case was a 119 So.2d and the Robinson case was (Voice Overlap) —

Edward J. Hill:

Yes, considerably later.

Yes, sir.

Earl Warren:

Well, gentlemen, I — I think both of you had better brief this thing — this matter for us and — and have a — have a brief in on it within a week.

Edward J. Hill:

Within one week, sir?

Earl Warren:

Yes, to both sides.

You may proceed.

Howard W. Dixon:

Your Honor, what if we could extend that to one — 10 days?

Earl Warren:

Alright, 10 days.

Edward J. Hill:

And if it please the Court.

Edward J. Hill:

The position of the City of Tallahassee here is, and we framed our — the complaint or the information around the ordinance that required the police officer to make an examination of the situation as he found it.

And if in his opinion be contemplated, disturbances of the peace and other disturbances, he could go along those persons who were assembled and ask them to then and there disperse.

Now, that we think is one of the things that had been written in Talla ordinance specifically to comply with the common law definitions of unlawful assembly that if where they — where he has — has the opportunity and has the right and is vested with this opinion procedure.

If after he formed this opinion, he orders them to disperse, there is a refusal of dispersal, then the — the ordinance carries further and says that they are then and there deemed to be unlawfully deemed guilty of disorderly conduct.

And if they are then deemed disorderly — guilty of disorderly conduct, you have an assembly of persons deemed guilty of disorderly conduct and thereby, they become a — a disorderly and unlawful assembly.

Now, let’s work back to the facts in this thing.

These persons came to Tallahassee with no valid purpose known to the persons who are charged with responsibility of law and order that.

Earl Warren:

With no what?

I didn’t understand.

Edward J. Hill:

They had no advance knowledge of the — of the reasons why they were coming there.

They — there were some advance publicity that filtered them to Tallahassee by virtue of the press and the like and they were called “Freedom Riders” and they — they notified the press in advance that they are coming for obvious reasons so that they can be met and their views disseminated in that manner.

With that advance knowledge, the City of Tallahassee furnished them what we thought was adequate protection because we — we did not want any instances that it — or incidents that it happened like in other places.

For a period of time, as Mr. Dixon says, they were merely observed here and there.

They were allowed to go in and out of the waiting room, in the washroom and the eating facilities of the bus station there.

And there were people — yes, sir, there were.

There were people there who are contrary to their views and they were somewhat hostile.

But all of those people would disperse and clear the way.

And as far as equal protection of the law is concern, they will give them every protection that it was possible to give them even more than equal, more protection that was given anybody else in Tallahassee at that time.

After they had eaten and so tested these facilities, which we assumed to be their right under their right to assemble and their right of free speech, they went from there to the airport and as Mr. Dixon says, they found the airport restaurant closed.

They were not denied the use of the restaurant facilities.

They were not denied the use of the airport waiting room facilities.

But this restroom — this restaurant itself which is the Savarin Restaurant in the Tallahassee Municipal Airport was closed and the record indicates that it was closed for repairs.

Counsel points out that there was a two-fold reason.

One, to repair certain machinery, two, that since this repair to this machinery was necessary, then this was the right time to do it.

We contend that that’s not an unlawful exercise of the discretion by an authority of that kind to choose a proper time when there is that possibility of some type of disorder in the area.So —

Arthur J. Goldberg:

(Inaudible)

Edward J. Hill:

They did nothing that I would say that it was a riotous or tumultuous but they were unlawfully assembled in that they refused to obey this officer when he asked them to disperse after going into the second day of the type of conduct that was complained of in the information.

Arthur J. Goldberg:

(Inaudible)

Edward J. Hill:

No, sir.

He has to do certain things that tend to create a disturbance in the neighborhood and to plant in the minds of firm and rational people that there is lack of (Inaudible).

Edward J. Hill:

That is — that state the crux of unlawful assemble.

Byron R. White:

What did they do to do that?

Edward J. Hill:

What did they do to do that?

The making of these plane reservations.

Your Honor, it — it — I hate to — I’m not — I’m not going to apologize but I’m going to —

Byron R. White:

You mean (Voice Overlap) —

Edward J. Hill:

— double back by saying I —

Byron R. White:

— the ticket counter?

Edward J. Hill:

I hate to apologize by saying this but there are many, many times when it’s extremely difficult to get in to a record the feelings that take place around a situation of this kind.

And you have to find and point out as many of the facts as you possible can.

But in cases of this kind, you find that community somewhat seating and it’s impossible to — to really get everything like that and to the — to the record.

And so therefore, we have to rely on our authority that’s granted in the statute and the ordinance that persons — real courage in the community, people who knows substantial citizens, not just nuts, for example, people who’s substantial, who can feel and see and understand what’s going on at that particular time.

And he formulates that opinion and then he asks those people to leave.

Then if they —

Arthur J. Goldberg:

(Inaudible)

Edward J. Hill:

No, no, sir.

Arthur J. Goldberg:

(Inaudible)

Edward J. Hill:

And they did.

Arthur J. Goldberg:

(Inaudible)

Edward J. Hill:

The continued activity which they knew and did result in disturbance that was created there at the scene.

We maintain that — that the length of time that’s involved in — in this thing has a great deal of bearing on it.

In the many of your cases of unlawful assembly, one he cites — that cited the Aaron against — States versus Butterworth, the man was asked, “What do you do in here?”

And he just said, “Fellow worker,” so on so on.

They arrested him just like that.

But these people were given every opportunity in — to test here and the city provided them that — that particular protection that they need.

I — and — and after it lasted as long as it did, those persons in authority found that it was necessary to attempt to disperse them.

Now, I — I — without — it’s not — it’s not in my brief but in — in Edwards versus South Carolina, Justice Clark says that even though the city manager, and he was a city manager at that time, might have been honestly mistaken as to the eminence of danger, this was certainly a reasonable request that it was his request to disperse by the city’s top executive officer in an effort to avoid the public poll and that’s — that’s generally the theory on which (Inaudible).

After they have — people have tested, everybody has got a right to but they don’t have a right to just —

Hugo L. Black:

(Inaudible) hold in that?

Edward J. Hill:

Sir?

Hugo L. Black:

What did the Court hold in that?

Edward J. Hill:

The Court held in Edwards — in the Edwards case that they — that they would deny their right to be there as — as well — and then that was cited here (Voice Overlap) —

Hugo L. Black:

You’re reading from the dissent.

Edward J. Hill:

I’m reading from the dissent, yes, sir.

But we urge that — that —

Hugo L. Black:

May I —

Edward J. Hill:

— the theory of —

Hugo L. Black:

— appeal your argument doesn’t amount to this.Maybe it’s good because of the difference of opinion on this and has been and so expressed by judges.

You say that even though a person is exercising an undoubted constitutional right, if the police reach the conclusion that the exercise of that undoubted constitutional right may obtain people who disagree with disputes and so that it might make them wanted to hit it or create some vows that men, he can be denied the right —

Edward J. Hill:

No, sir.

Hugo L. Black:

— and can be convicted for exercising.

Edward J. Hill:

The continued exercise of it —

Hugo L. Black:

Continue to exercise of undoubted constitutional right.

Edward J. Hill:

When it is attendant with such — when the attendant with such circumstances —

Hugo L. Black:

That somebody who is uphold to his views might want to create disturbance, in other words, that even though the disturbance has brought them out because some person disagrees with another fellow’s exercise of his constitution right, then he can be convicted for exercising its constitutional right.

Edward J. Hill:

Well —

Hugo L. Black:

Isn’t that it?

Maybe I’m wrong but I thought it was, it is — many spokesmen for that view.

Edward J. Hill:

That’s our —

Hugo L. Black:

As a matter of fact, I think we’ve had it in connection with some of religious activities.

Edward J. Hill:

I’m not sure that I can quite answer that.

I — I may have a reference here that —

Hugo L. Black:

Well, did they do anything in your judgment that they didn’t have a constitutional right to do?

Edward J. Hill:

I think that they — instead of answering it saying yes or no, I would say that in the situation in which those people found themselves, they had other proper remedies.

Hugo L. Black:

Suppose they did.

Suppose it’s a constitutional right to do it this way.

Edward J. Hill:

I don’t think it’s able the constitutional right of any party to upset a community, Your Honor.

Hugo L. Black:

Well, it’s — to violate a law but did you have any law against their being there?

That’s in special term that fits this case.

Did you have any law that says that people should not gather, which applied to everybody without the — what — what they were there for?

Edward J. Hill:

Yes, sir.

Hugo L. Black:

That — is this the law that you referred to here?

Edward J. Hill:

That statute says —

Hugo L. Black:

But that’s the one that I think Mr. Justice Harlan’s question, if I’m not mistaken, pointed out.

It finally get down to the point that the only trouble that was because would be by the exercise of a constitutional right under that (Inaudible) law just that — suppose — suppose a man which in the end, he belong to a sect and the others didn’t like it, they were so much against it as frequently the case that they fight about it if somebody’s there (Inaudible)

Edward J. Hill:

Well, I —

Hugo L. Black:

— then created a disturbance.

Edward J. Hill:

— I think then you want to get those people out of the way who — to create —

Hugo L. Black:

Alright.

But —

Edward J. Hill:

— that is —

Hugo L. Black:

— what’s the difference in that case and this one then if these people had a constitutional right to do what they would do?

Edward J. Hill:

These people came there to test these facilities and as soon as they found that they — would deny them as they alleged which we don’t admit.

We admit only that the restaurant was closed but not close for the purpose of denying them anything.

Then it is our position that they should seek other and more orderly judicial remedies.

The preamble to the Constitution says that we are here to, where is my recitation here —

William J. Brennan, Jr.:

Domestic tranquility.

Hugo L. Black:

Domestic tranquility.

That’s right.

Edward J. Hill:

Domestic tranquility and that comes before any of the ordinances.

And we —

Hugo L. Black:

But —

Edward J. Hill:

— say it — that’s their duty.

Hugo L. Black:

And also some other things that it says people shall have the right to do.

Edward J. Hill:

I agree with that.

Yes.

Hugo L. Black:

Now, of — do you have any law — do you have any law that specifically and pointedly find that everybody without regards to race or color tries to regulate your streets or tries to regulate your places so that not more than eight people should be gather there to place might congest to — for some purposes of that kind (Inaudible) special law.

Edward J. Hill:

I could — I could only — let me see.

Our law is the one in which we — we are here about, sir, which says if — if questions of — if any person or persons of —

Tom C. Clark:

Where — where you reading?

Edward J. Hill:

Sir?

Tom C. Clark:

Where — where you —

Edward J. Hill:

I’m reading from the City Ordinance Section 23-4.1 on page 3 of the respondent’s brief.

Hugo L. Black:

That’s the one that says you must (Inaudible)

Now, that doesn’t come in here because you say they were not there.

What you say is that they come under the brief by even though they are exercising a constitutional right, they can be all in a way because somebody else might object to the exercise of their constitutional right so strongly that they might in the (Inaudible)

Edward J. Hill:

Well, we — we attempt to relate this statute back by saying that — that when the — the circumstances are such that and then people reasonably constituted in the community who have — who — who sought and have their feet on the ground, when they — when it’s in the opinion of those people, your mayor and your alderman and the like that they are convinced that the assembly of these persons will tend to create a disturbance and they do not disperse, then they are guilty of disorderly conduct.

Hugo L. Black:

That maybe that you are right but that —

Edward J. Hill:

And then that relates back.

Hugo L. Black:

— amounts to this.

That amounts to this.

I call your attention to the fact and it seems to me is the issue you have to meet.

That if an exercise of a plain constitutional right, then they earn people who have their feet on the ground as you say —

Edward J. Hill:

Yes.

Hugo L. Black:

— afraid that somebody else in the community will so hardly disagree with them that they may get into fight and create a disturbance that then the officers can arrest the people who exercise their constitutional right.

Edward J. Hill:

Let — let me say here that in a case known as Poulos versus New Hampshire and it’s not in my brief because I was tipped off in a magazine yesterday, a little bit, what is the law.

Justice Reed said, “Delay is unfortunate, but the expense and annoyance of litigation is a price citizens must pay for the life in an orderly society where the rights of the First Amendment have a real and abiding meaning.”

And we contend that for the society to remain orderly, these people should pursue other methods than this assembly method.

And there must —

Hugo L. Black:

(Voice Overlap) Constitution says something about the right of peaceful assembly.

Edward J. Hill:

That’s correct.

I agree with you on this.

But the assembly can become but not so peaceful by the continued —

Hugo L. Black:

What — if the assembly itself — do you charge here that the assembly itself became non-peaceable?

Edward J. Hill:

Tended to create —

Hugo L. Black:

I am not talking about that.

Do you contend that there was any attendant in the world on the part of the assembly itself to become non-peaceable?

William J. Brennan, Jr.:

Were these ministers and rabbis, in others words, were they acting in a way that appeared (Inaudible)

Edward J. Hill:

I would say, Your Honor, that they were acting in a manner in which rabbis usually do not act (Inaudible)

William O. Douglas:

Where they aren’t?

Edward J. Hill:

As I will — as I pick out counsel on the other side chartered our court for saying — they said, “These people came a thousand miles to be deprived of something that they had at home.” This — this was a desire —

William J. Brennan, Jr.:

Well, that’s — that’s really the crux of it, isn’t it?

Edward J. Hill:

Sir?

It might be.

Alright, sir.

Now, they continue to mill around and everything in this particular —

Hugo L. Black:

What do you mean by mill around?

Edward J. Hill:

Moving around.

The — one of the officers testified that — that they went in groups here and there.

They hurdled in caucus (Voice Overlap) —

Hugo L. Black:

Is it against — do you have any specific special statute aimed at people milling around that way?

Edward J. Hill:

No, sir.

I do not.

Hugo L. Black:

So they were not violating any law there?

Edward J. Hill:

Nothing.

No, sir.

But the overall, and as I say, our position is that the overall continued activity there tended to create a disturbance.

I’d say —

Earl Warren:

By whom?

Edward J. Hill:

Sir?

Earl Warren:

By whom?

Edward J. Hill:

By those people.

Let’s come back to the issue of the airport cancellations of airlines reservations and so on.

Earl Warren:

Was that a disturbance?

Edward J. Hill:

I would say so, yes, sir.

Suppose that I wanted to make a trip by an — on an airplane and I called in back and sir, I’m sorry we are filled and these people here concertedly reckon and break in reservation so that I cannot fly.

That disturbs me.

I may not associate it directly (Voice Overlap) —

Hugo L. Black:

Do you have any law against that?

Edward J. Hill:

No, I would say —

Hugo L. Black:

I — it — maybe that you should pass a law which says, I’m not sure, that people should not cancel their reservations but you don’t —

Edward J. Hill:

No.

Hugo L. Black:

— have one.

Edward J. Hill:

No, I do not.

There’s no law that they cannot but the — the fact that they do if it tends to create a disturbance, we have that all if it’s in the opinion of the officer who was in charged.

Hugo L. Black:

That’s — if officer thinks somebody else may get disturbed by it and might get belligerent then you can arrest the people who do it.

Is that it?

Even though they’re exercising their constitutional rights.

Edward J. Hill:

If they’re exercising — I don’t believe I can quite answer that to your satisfaction, sir.

Hugo L. Black:

But we had a case somewhat like that in Connecticut where one of the Jehovah’s Witnesses was using — for the strong language against the religion and the argument was that people with that faith were allowed to come up and have a fight with them.

At that poll, they could arrest the people for advocating their religion and the (Inaudible) can do that suddenly on the broad over all statute.

Sometimes it — it might be wise in trying to curve conduct, try to curve the conduct except specifically on reasonable grounds rather than by big statutes.

It might be more effective.

Edward J. Hill:

Well, we — we can’t manufacture here facts (Inaudible).

And — and we — we’ve been through that in every lawyer who comes up here is — is truly if he tries to.

Now, the only thing that we can say is — in the record where it speaks and citing again Justice Clark in his dissent, it’s our duty to consider the context in which the arrests were made.

And that context is in the record.

And further, citing from that is a dissent and I — I don’t always like to cite from dissents but Judge — Justice Clark said that this arrest, that is in Edwards, occurred only after situational roles in which the law enforcement officials on the scene considered that a dangerous disturbance with eminence.

Earl Warren:

Would you asked us to overrule Edwards or do you say that that dissent overrules Edwards?

Edward J. Hill:

I don’t say they it overrules Edwards.

But I say it — that is — is good law.

He thought so.

Earl Warren:

But what you do with — what do you do with Edwards?

Edward J. Hill:

I think —

Earl Warren:

(Voice Overlap) —

Edward J. Hill:

— Edwards is distinguishable in that these people are in South Carolina did not have an opportunity to fully and completely express themselves and they would deny that there.

Earl Warren:

You appeal that the — the opinion did not reach the merits of the case but the dissent did?

Edward J. Hill:

No, sir, I didn’t — I didn’t say that.

I said that the factual situation between the two cases involves a prolonged period of time and — and if — if Edwards had — had those people stayed down there for hours and hours and days and days and — and constituted a tumultuous or turmoil situation in that community, then you might have considered it differently, I don’t know.

But we are asking you here to affirm this decision — affirm this decision by our Circuit Court.

Edward J. Hill:

Here, after these people have been given every and ample opportunity to express their views.

And then when the community becomes involved, we think that they ought us pursue other and peaceful and lawful methods.

And there are others court review and the like.

In answer to the question that was raised about the interstate commerce clause, we feel and we do not admit that the interstate commerce clause is involved in this thing.

The testimony of the Eastern Airlines manager himself under — under cross-examination, I believe it was, testified that the tickets were cancelled.

The only thing I can do is to rely on that.

The tickets were cancelled according the Eastern Air and will and they say so.

The fact that I’ve got an Eastern Airline ticket in my briefcase, it’s over there, doesn’t bring me within the purview of the interstate commerce clause for every activities that I might have become engaged in — here in Tallahassee — I mean here in Washington.

So we urged that — that the essential elements of defense have been proved as they were set out in the information.

That it was a lawful exercise of the police power when there was imminent danger of a right to aboard public brawl, quoting again from Mr. Clark — I mean Justice Clark.

And we urged that — that no expressed activity of persons that cause breaches of the peace should be considered free speech that they — that if they get into the realm of causing breaches of the peace and disturbance that they should use other lawful and peaceful methods.

This is an unlawful assembly and I don’t think the question of unlawful assembly in factual situation to this kind and a tense situation to this kind had been presented to this Court, breaches of the peace, disorderly conduct and nevertheless, other charges have been printed — presented in other —

Hugo L. Black:

Is it your idea that it was unlawful before —

Edward J. Hill:

Sir?

Hugo L. Black:

— that the — is it your idea that it was unlawful before the policemen ordered them to disperse or after which or both?

Edward J. Hill:

I will have to say both and then I probably going to say for granted, sir.

Hugo L. Black:

I think that’s right.

How can you say that the (Inaudible) granting everything you say that the statute is so vague that these petitioners correct me if I understood, to reasonably understood raising a kind of conduct which would show in that case.

Edward J. Hill:

Well, Your Honor — let me see — I — I would say in — in answer to that that — that people has a whole don’t — no what a statute contains.

And they — the average citizen is forced to rely on the guidance and direction of — of officers and when the thing is explained to them, then they should take Congress (Inaudible)

Now, it might be that they are aware into that (Inaudible) — it might be that they are aware that they are trading on a rather dangerous grants.

But for definition purposes, I ran into a matter that cited in my brief on page 17 that says, “Few words possess the precision of mathematical symbols.

Most statute must deal,” this is Boyce Motor Lines versus United States, “must deal with untold and unforeseen variations and factual situations in the practical necessity discharged in the business of Government inevitably limits this specificity with which legislators can spell out prohibitions.”

And it goes on and it say, “Nor is it unfair to require that one who deliberately goes close to an area of proscribe conduct shall take the risk that he may cause the line.”

And that’s — that’s the position here.

May it please the Court.

Justices, I’d like to yield the rest of the time to my colleague, to Mr. Rhodes.

Earl Warren:

Mr. Rhodes.

Roy T. Rhodes:

Mr. Chief Justice and gentlemen.

If I might address myself an issue to the question raised by Justice Black, dealing with the Edward decision from Carolina in distinguish, if I may, the application of the theory expressed by Justice Clark, not denied by the majority of this Court in the different set of factual situation that we have in this instance.

Roy T. Rhodes:

In the Edward decision, you say that under the circumstances that this group of demonstrator were arrested that they were denied the exercise of federal constitutional rights.

Now, those demonstrators had arrived at a place before the building the house of legislation of that State and it had been there from all late that morning for a period of maybe an hour, the best I could determine from the record.

During that period of time, the temperature within which they found themselves had changed to some degree.

But nonetheless, they had continued to exercise what you recognize is their right of free speech and freedom of assembly.

Then, the officer in charge or the responsible person charge with the preservation of peace to that community determined that they continue exercise of that right that you recognized constituted a breach of the peace, the majority of this Court said no.

That — that did not constitute a breach of the peace that it constituted the continued exercise of a constitutional right which you recognized and therefore, reversed the decisions.

Our position is that in the language expressed by Justice Clark in the dissent in that case that he recognized something that this Court has not declined to recognize, that is a corresponding responsibility and a corresponding constitutional duty on the part of those charged with the preservation of peace and tranquility within a community irrespective of the exercise of a constitutional right of an individual.

Under the ordinance in question in the City of Tallahassee, the ordinance provided that within the opinion of those charged under the ordinance with carrying in to force in effect, they work of the opinion and concerned with the breach of the peace that is the assembly of the such person would tend to create a disturbance.

That mean the language of the statute.

That’s not fraud, nebulous language but rather specific language that somebody under the terms of the ordinance is charged with the responsibility of carrying out.

Now, when, under those circumstances, that law enforcement officer determines that the continued assemblage of persons would tend to create a disturbance or to incite a riot or other disorderly conduct and so forth, that it becomes an unlawful assembly.

That’s a very specific charge.

And factually in the instance before the Court, we have a situation in which the petitions exercised this right, not for a matter of an hour or hour and a half or half a day but from about the middle of day on Thursday when they got to Tallahassee until the back in the middle of the following day when they were ultimately arrested.

You have a record which reflects the change during that period of time of some 24 hours of the temperature and atmosphere within which they had, 24-hour period, been exercising that right.

What we are saying is that the exercise of a constitutional right are the continued pursuit of what is initially a lawful pursuit can become an unlawful pursuit or can become the abuse of a constitutional right in light of a specific ordinance or a corresponding constitutional duty placed upon those charges of responsibility of preserving the peace and tranquility within the community.

Hugo L. Black:

Why was it disturbing here if it didn’t disturb — if they were —

Roy T. Rhodes:

Sir?

Hugo L. Black:

Why was it disturbing here if they were peaceable and —

Roy T. Rhodes:

Why was it disturbing —

Hugo L. Black:

— and (Voice Overlap) —

Roy T. Rhodes:

Well, there are a number of reasons as to why it was disturbing the community.

Not the least of which is that this was an unusual course of conduct and actions to be carried on within Tallahassee, Florida for a period of 24 hours.

Now, that’s just the factual truth in the circumstances.

And if that be so, then the —

Hugo L. Black:

You are afraid to disturb people to anger —

Roy T. Rhodes:

Sir?

Hugo L. Black:

— or create unrests among the people, is that it?

Roy T. Rhodes:

Was it tending to do that, sir?

Yes.

Hugo L. Black:

You’re afraid that what it would do.

Roy T. Rhodes:

That was the opinion expressed by the officers that made the arrest, yes.

Hugo L. Black:

That’s — that’s your own — that your basis for your statute on that that Edwards says that you can’t do that.

It said, if South Carolina had made a defense, they made a conviction of them that that peace there disturb people to anger, invited public dispute have brought about other condition of unrest.

Roy T. Rhodes:

Yes, sir.

Hugo L. Black:

That’s what you are saying, isn’t it?

Roy T. Rhodes:

No, sir, that’s not what I’m saying, sir.

In that —

Hugo L. Black:

What then (Voice Overlap) here?

Roy T. Rhodes:

— situation — in that situation, you had people that were present there for a period of — of an hour or an hour and a half.

Hugo L. Black:

Well, what (Voice Overlap) —

Roy T. Rhodes:

In our situation, you have an hour (Voice Overlap) present for —

Hugo L. Black:

— two days?

Roy T. Rhodes:

— 24 hours and I think there’s a substantial difference.

I think the exercise of a constitutional right or a lawful right can become unlawful with its continued exercise in circumstances that are changing from the inception of the exercise of that right.

Hugo L. Black:

It would be pointed out that the statute brought the name that preventing congestion of the streets.

It was a name that saying you can’t do certain things at certain time.

But it was simply has, your statute seems to be, appear that what they were saying whether they said that an hour or two days would disturb people to anger, create disputes and make them mad because of the views that they expressed.

You say if it’s done an — a day, it’s constitutional, you can stop it but if it’s an hour, it can’t be stopped?

Roy T. Rhodes:

No, sir.

I’m attempting to differentiate factually with the situation before the Court in this case and the facts that were before the Court in the Edwards case.

In that case, the facts involved are short span of time and the —

Hugo L. Black:

Suppose a man preaches four hours instead of an hour, would that make a difference?

Roy T. Rhodes:

It foreseeably could, Your Honor, yes.

Saying — saying things at the beginning of a — of a sermon, for instance a four-hour sermon in a situation —

Hugo L. Black:

You might not like it.

Roy T. Rhodes:

— in a situation in which we’ll say nine people were present and saying things four hours later when 500 people maybe present and there maybe all other kinds of activity going on could constitute the unlawful exercise of that which we lawfully (Inaudible)

We (Voice Overlap) —

Hugo L. Black:

I don’t want — I don’t want you to get misunderstand what I’m saying I think that you have presented the issue as it is —

Roy T. Rhodes:

Yes, sir.

Hugo L. Black:

— but — with reference to your case.

Roy T. Rhodes:

Yes, sir.

And accordingly, we feel that for the preservation of peace in any community that it’s necessary that this Court recognize the corresponding responsibility in those that are charged with the preservation of peace in the community to recognize the rights of individuals within that community.

But in so doing to recognize those individual rights in such manner that the rights of the other members constituted in that community are likewise recognized so that violence is not performed to the rights of either, the Court of Appeal that the conviction should be affirmed.

Earl Warren:

Mr. Rachlin.

Carl Rachlin:

Mr. Chief Justice and members of this Honorable Court.

I wish to thank the Court for the privilege of submitting a supplemental memorandum.

As a non-member of the Florida Bar, I must confess to the difficulties of trying to understand the vagaries of the Florida appellate procedure appeared in this case at about a late date but I have great concern for the petitioners here in this general counsel for the organization which sponsored their trip where there’s one that may be known to some of you the Congress of Racial Equality.

In any event, I would like to suggest one-forth which we will brief in this — in this memorandum to permit me to draw the analogy of Fay against Noia.

At the time the petition was filed with this Court, there was no other place they could go.

The petition for certiorari to this Court was timely filed in that limited sense.

The time to file such a petition had already expired in the Florida court.

There was no possibility of any remedy in the Florida court.

And if I understand, the reasonable inferences of Fay against Noia and I say — suggest you expand this argument perhaps in a — of memorandum.Despite the laps of some 20 years in that case, this Court undertook to entertain the petition for habeas corpus even though all the remedies that may have been available to the petitioner in Fay against Noia had not been exhausted in the State of New York.

But as I suggest, we will try to develop this argument at some greater length.

Now, it is our position —

William J. Brennan, Jr.:

(Inaudible) may I — may I suggest that I thought Fay and Noia tried carefully to draw the line between jurisdiction on direct review and the jurisdiction of a federal habeas corpus put on — on collateral.

And what we’re dealing with here is I — this Court’s jurisdiction to hear this case at all on direct review of the Florida courts when the avenues of appeal and suggestion is at least these had not been exhausted that they should have been in the Florida court.

Carl Rachlin:

Your Honor, I recognize there is that distinction and this is something we will have to attempt to persuade you in this memorandum, not we are going to have — we would in 10 days.

With regard to the few comments I would like to make with regard to the merits of this proceeding.

It is our — adopted — it is our position to (Inaudible) if it should have been read at all, it’s read to the wrong people.

This case and the similar ones that have appeared before this Court, and once that I have tried in some of the other States in the United States, always seem to turn on a kind of blackmail theory of law.

If I don’t like what you have to say, I get up a crowd, I make noise and then I’m arrested for disorderly conduct or as in the case here for a violation of the — of the so called riot act.

This — we — we suggest that this approach is really part of the discriminatory segregation attitude of the community.

And I — I would like to refer this Court to — to page 18 of the respondent’s brief in this Court because while the comments are entirely irrelevant to a legal proceeding, they illustrate perfectly the state of mind that was gathering together against the petitioners in this case.

And I read from the top of the page, part of this brief is written on August 28th, 1963.

As one of the riders was reading the morning papers under a byline of a national news syndicate, the main headlines refer to the mass march of certain persons, predominantly negro who are marching in groups of thousands of persons on Washington D.C., the capital of this country, in protest and to demonstrate.

Certainly, but no orderly purpose other than to show some type of brute or political strength.

Respondent urges that such a demonstration and protest is an unlawful assembly.

Now, this, of course, is quite irrelevant to this proceeding.

But I think it shows the state of mind of the public officials of Tallahassee.

Carl Rachlin:

They were — it is clear that anything that the petitioners did in this case, anything they did at all, their mere presence in an integrated group would have — would have been flamed the community and they were going to arrest them.

The same thing happened in our — one of our previous cases, Taylor against Louisiana, where the negroes in the bus station at Shreveport — I think the only other freedom right case that has come to this Court on the merits, the same type of situation arose.

And of course, this Court has spoken in Garner against Louisiana on a similar type situation where the guinea pig becomes the crime — the committer of the crime because he is roasted.

This is really what have comes down to.

Mr. Rhodes said a moment ago that it was his view that when in the opinion of those carrying out the ordinance, the assemblage would tend to create a disturbance that becomes unlawful.

We suggest, and I suggest in closing, that if these were the law, we would have a literal police state in the United States.

I think the cases of this Court, as well as in many other higher courts, have previously decided that there is a right upon the part of the citizen to refuse to obey an illegal order of a police official.

Since no acts of any kind are shown in this record of any illegal conduct on the part of these petitioners, I think based upon the previous decisions of this Court, that the petitioners had the right to refuse, to obey the illegal order of the policemen.

If they do not have that right, then we have a police state.

With that, I trust the Court will forgive if I don’t use all the time that is available to us but we will perhaps exercise that right by the supplementary memorandum.

I wish to thank the Court for the opportunity herein.