Lambert v. California – Oral Reargument – October 17, 1957

Media for Lambert v. California

Audio Transcription for Oral Argument – April 03, 1957 (Part 2) in Lambert v. California
Audio Transcription for Oral Argument – April 03, 1957 (Part 1) in Lambert v. California
Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California

Earl Warren:

Number 47, Virginia Lambert, Appellant, versus the People of the State of California.

Mr. Grey, you may proceed.

Philip E. Grey:

Mr. Chief Justice, may it please the Court.

I’d like to emphasize that in the trial court level of this case, there was no question raised as to unlawful search or seizure, false imprisonment, any factual basis other than the actual elements of the crime of being a person who had suffered prior convictions, in fact, those two prior convictions had been suffered in the State of California, should been a resident over the required period of time, she had not registered where the Chief of Police has required by the ordinance.

This record had not been expunged.

Earl Warren:

Mr. Grey, I think the — the Court is primarily interested in the constitutionality of this statute and we would like to have you direct to the major portion of your argument to that — to that question.

Philip E. Grey:

If it please the Court, may I pass that on to Mr. Linn on the legal end of it.

Earl Warren:

Yes.

Philip E. Grey:

And attempt to answer —

Earl Warren:

All right.

Philip E. Grey:

— some of the questions that were asked yesterday —

Earl Warren:

Yes, indeed.

Philip E. Grey:

— by the Justice.

Earl Warren:

I think —

Felix Frankfurter:

May I — may I at this point?

You’ve just said conviction in California, if I caught the tone of your voice with some entity, could you not?

Philip E. Grey:

Yes.

Felix Frankfurter:

Are you making a point of that?

Philip E. Grey:

Some of the questions that have been here propounded have raised the question if the crime had been committed outside of the State of California, then a person isn’t likely to know of the nature of the statute.

I emphasized that to show that this appellant does not come within that classification.

Emphasis has been made that first offender should not be required to register.

I emphasize the fact that there were two prior convictions because this appellant is not a first offender there.

I want —

Earl Warren:

May I ask you in that — in that restrict, how she is a second offender?

Was it two — were two prosecutions that came along almost simultaneously —

Philip E. Grey:

Yes.

Earl Warren:

— it wasn’t that she served one — one term and then had another conviction, was it?

It was — they broke up a series of — of forgeries by — by two prosecutions and two convictions.

Philip E. Grey:

That’s right.

Earl Warren:

Is that right?

Philip E. Grey:

Two separate indictments and two separate —

Earl Warren:

Yes.

Philip E. Grey:

— pleas of guilty —

Earl Warren:

Yes.

Philip E. Grey:

— entered to those —

Earl Warren:

Normally —

Philip E. Grey:

— to the question.

Earl Warren:

— you don’t call those second offenders, do you?

Philip E. Grey:

Well, there are two convictions on record.

Earl Warren:

Yes, I — I understand.

It’s all right.

I — I won’t —

Philip E. Grey:

It’s a question of timing —

Earl Warren:

— I won’t argue the —

Philip E. Grey:

— had the sentence had been imposed on the first one and then the second indictment brought before the Court, there’ll be —

Earl Warren:

Yes.

Philip E. Grey:

— no question about —

Earl Warren:

Yes.

Philip E. Grey:

— a second offense.

I’ll bring out the — emphasize.

I think there were two convictions, a first offender in the (Voice Overlap) —

Felix Frankfurter:

If I may revert to my prior question.

When either you or Mr. Linn in this good time state whether the State of California asked this Court to consider the ordinance as though it were — there were written in to it that these must be convictions for crimes in California.

The convictions must be with regard to prosecutions within California.

Either you or Mr. Linn in good times can answer that.

Earl Warren:

Didn’t — didn’t you answer that yesterday, Mr. Grey, by saying that it made no difference whether was in California or in any other State?

Philip E. Grey:

Under the general terms of the ordinance.

Earl Warren:

Yes, and under the interpretation given to it by your Appellate Division which is the only — only interpretation has been given to it by the courts.

Philip E. Grey:

Well, I answer that to this extent that they were interested in the question of whether or not it was the actual judgment of conviction or the fact of conviction.

The Court has never passed upon that other phase of it whether or not it applied outside of the State.

Felix Frankfurter:

But you just made a point of it in your statement.

Philip E. Grey:

That’s true.

Felix Frankfurter:

All right.

Philip E. Grey:

But I’m trying to emphasize that the facts of this case do not warrant going outside of the State of California, so to speak.

I think Mr. Justice Brennan yesterday asked about the actual practice.

In my experience, some 14 years with the City Attorney in close contact with the police department, we know that this law is enforced in the — to the same extent as is any other law of the State of California insofar as it affects strangers to the State.

A person coming in to the State who has been in business in some other State for a number of years attempts to open a place of business.

He is not permitted with the laws of California nor the laws of the City of Los Angeles.

Should he violate the law, generally, when it comes to the attention of the law enforcement officers, he is given notice or warning.

You are engaging in a business that requires a special type of permit.

You should get that permit.

Now, in this matter here, I think that generally, most of the persons who are either interviewed as witnesses or suspect of a crime are interrogated, not only as to the nature of the present business but generally as to their past activities.

If during the course of an interview, it becomes apparent to the law enforcement officers that this man has suffered a prior conviction, he is generally advised that in Los Angeles, a person must register.

In many instances, the person is arrested upon probable cause for some other crime.

This becomes an incident to the general investigation.

I think the figures that we have shown do reflect that that is the proper procedure, the answers to the question propounded by the amicus curiae.

William J. Brennan, Jr.:

Well, do I understand that correctly, Mr. Grey, is that to say then that a person who has been convicted of a crime and interrogated in the manner you suggested is not prosecuted then and there for having failed to register but as warned first that one must register?

Philip E. Grey:

And the courts with these responses by the member of the police department to amicus curiae.

They indicate that the usual practice in answer to question number six which is contained in my —

William J. Brennan, Jr.:

Yes.

Philip E. Grey:

— supplemental brief.

The question was, “Is it now or has it ever been the policy to permit felons to register and then release them when there is no other charge upon which to hold them?”

The answer, “Ex-convicts who have failed to register as such are rarely booked on that charge alone.

The policy is to allow the subject to register and then release him except in those cases where a subject is uncooperative and/or is frequent in high crime rate areas of the city.”

Earl Warren:

Now —

Philip E. Grey:

That is generally the policy.

Earl Warren:

Now, what did they do in this case?

Philip E. Grey:

We don’t know, Your Honor.

The evidence —

Earl Warren:

But did they follow that policy in this case?

Philip E. Grey:

I can’t say.

Earl Warren:

Is there anything in the record to show that they did?

Philip E. Grey:

There is an offer of proof made at the time that in motion in arrest of judgment was made to the Court after the verdict of guilty had been returned and offer to prove certain facts in a motion in arrest of judgment, the Court is only interested in the constitutionality of the statute, the form of the complaint, not in the evidence.

So that it was improperly presented at that time.

At no time during the course of the trial was there any evidence offered to show the facts or circumstances surrounding the arrest but then —

Earl Warren:

(Voice Overlap) your office know what the background of this was?

What — how — how she happened to be arrested on this — this charge?

You didn’t look at that?

Philip E. Grey:

No.

This is what has happened in many instances, going further with my practical application.

For persons who have been interviewed or suspected of crime, and it is determined by the law enforcement officers that there has been a prior conviction suffered by this particular person.

If that person is seen or interviewed over a period of time, more than five days and one month, investigation shows that they have resided at a particular place within a necessary period of time, investigation checks to see that the crime for which they were convicted actually would have been a felony in the State of California, an application for a complaint is made to the City Attorney.

This application then lists all of the various elements that are necessary to prove and establish the violation of this law.

Thereafter, a warrant is secured.

Now, what happened in this case?

I really do not know except for this offer proof.

There was no question raised nor any law enforcement officer required to establish probable cause for the arrest.

I know that this began with a verified complaint charging a person with having violated a municipal ordinance.

The evidence is presented in that light.

What the background may have been?

There may have been all the probable cause in the world to arrest this person, for all I know or there may have been none.

At any event, there was no illegal search nor seizure.

There was no evidence taken from the appellant which was introduced in the Court.

Had there been a false arrest, there would have been a civil remedy but not a criminal remedy.

The charge before the Court was that this person was an ex-convict who had failed to register.

Those were the elements that were presented to the Court.

They were established by — mostly by stipulation and proof of this prior conviction.

William J. Brennan, Jr.:

Well, I gather though, Mr. Grey, the rest of the answer to six, there’s no record of the number of instances where ex-convicts have been questioned taken to the record division for registry and later release based upon the personal experience of the officer’s questions, the question there had been many times more cases of this type that of actual bookings in this charge.

That implies though there’d been a substantial number of bookings without a prior up to newly registers, doesn’t it?

Philip E. Grey:

Bookings for other charges?

William J. Brennan, Jr.:

No.

As — this says actual bookings on this charge.

I’m meaning at the top of page 9.

Philip E. Grey:

Yes, I see that.

William J. Brennan, Jr.:

The answer you referred us to.

Philip E. Grey:

Well, the other thing is given through the answer to questions two and three indicate that there were only 39 arrests during 1956 for this particular charge and of the 39, 36 of these resulted in complaints being issued by the City Attorney.

I think what they — they meant to say that many more persons have been told to register than appear by the number of bookings as 39 figures because I think it’s understandable that the police department is not interested in the minor type of violation if they are investigating a major crime.

And this becomes an incident to it.

William J. Brennan, Jr.:

No, but the fact it appears to be that in many cases at least, however, many doesn’t very clearly appear, they’ll book someone in a — well, if it is established that he has been convicted of a crime, he has failed to register and will be prosecuted for having failed to register.

Philip E. Grey:

Well, I have — the figures indicate that only 39 occurred in 1956.

May I go further and say this that under California law, in recent years, we — the Supreme Court and the appellate courts have stated this, “That it is the duty of the police officer to stop and question persons seen on the streets during the late hours, that it is a right and duty or a privilege to protect the general public whether they are committing crime or not, there’s nothing wrong in stopping a person and talking.”

Then the cases have gone further and said, “That if during an interview a person reveals that he has committed a crime, there is justification for an arrest.”

Let’s take for an example this type of situation.

During the early mornings of the hour, police officers see a person walking down in a warehouse district, everything is closed.

They stopped and talked to the person.

During the course of this conversation, he revealed that he had suffered one or two prior convictions.

The officer would be justified in making an arrest for a misdemeanor committed in his presence under those circumstances.

So that that may be the result of these 39 cases, it may not.

William J. Brennan, Jr.:

You mean a misdemeanor committed in his presence that is a failure to register?

Philip E. Grey:

That’s right, violation of this ordinance.

But it was surprise —

Earl Warren:

But was this —

Philip E. Grey:

Pardon.

Earl Warren:

— was this woman arrested under any search circumstances?

Philip E. Grey:

Again, the only thing that I know —

Earl Warren:

I thought it was said — I thought it was said the last argument of the case that she was walking along the street going to work or — or something of that kind as a secretary —

Philip E. Grey:

Yes.

Earl Warren:

— of the law office and was arrested and asked to show her — her arm to — to see if she had been using narcotics and on a failure to establish that, she was taken up and charged with this crime.

Philip E. Grey:

There again, that appears in the record.

At the time of the motion for arrest of judgment was made by an offer of proof, there is no such evidence in the record except by way of this offer of proof which was not material to the Court in considering —

Earl Warren:

Yes.

Philip E. Grey:

— a motion and arrest of judgment.

Earl Warren:

Well, now, let — let me ask you this, Mr. Grey.

It seems to me that this 39 arrest in one year in that great city of Los Angeles, in the great county of Los Angeles would make it look that — as though this was only used when it would serve a particular purpose.

Now, you have thousands of men every year arrested in Los Angeles County for — for a crime of various kinds.

You have many, many thousands more arrested in your — in your county.

You have many thousands of — of ex-convicts, I’m sure, who go through your State in — or your city in the course of a — of a year, a city of two and a quarter million, county of almost 5,000,000 people and still, there are only 39 arrests, and — and this particular woman is one of them.

Now, isn’t that a rather strange enforcement of the — the law and — and many of these thousands that I speak of are — are very bad criminals and many of them are not convicted of a — of the major offense, why is it that there are only 39 arrest for this crime in one year?

Philip E. Grey:

I would think these figures to be beneficial to me, Your Honor, by saying this, that of the 245,000 of arrests made during the year of 1956 — 225,000, for major crimes, most of those people have registers as has reflected by the answer to question number one showing some 43,000 persons registered.

Earl Warren:

Now, wait a minute, wait a minute.

Let’s — let’s take that number right there.

I noticed that too and that struck me significant.

You’ve had 43,313 register as of July 10th, 1957.

Now, that covers what period?

Philip E. Grey:

Oh, I think that covers the entire period since the existence of the ordinance.

Earl Warren:

How long has it been in existence?

Philip E. Grey:

Since 1933.

Earl Warren:

Do you think that’s a large number in view of that?

Doesn’t that —

Philip E. Grey:

We have no —

Earl Warren:

That strikes me as being a very small number.Certainly, you have convicted, you’ve convicted more people of — of crimes punishable as a felony in Los Angeles City alone in that length of time, haven’t you?

Philip E. Grey:

Yes, we have.

But how are the law enforcement officers of the City of Los Angeles going to know the presence in the city of these particular people who have been convicted unless they do register or unless do some other investigation or means the attention to the law enforcement agencies are —

Earl Warren:

Yes.

Philip E. Grey:

(Voice Overlap) —

Earl Warren:

Well, the only reason I asked you this is because 43,000 registered in that time and only 39 arrest in the years.

It strikes me.

Is — it’s not a uniform method of — of enforcement.

I — I know that great city and —

Philip E. Grey:

It would be difficult to have the police officers investigate in great detail.

Philip E. Grey:

I think the Law Review Article of Pennsylvania answers that to a certain extent stating that a detective is looking for a major crime.

He devotes more time and effort and he uncovers this and he said, “Well, let that go.

I’m trying to establish larceny, burglary —

Earl Warren:

Yes.

Philip E. Grey:

— and murder.”

And it becomes an incidental thing.

Of the 39, those, perhaps, are situations where no other charge was made and a person refused to register as a last resort.

This ordinance was enforced.

(Inaudible)

Philip E. Grey:

Well, as I’ve started my remarks here, I have said that common practice is to request a person to register.

They meet him again on the street, a matter of weeks and months later, they ask him, “Have you registered since?”

“No.

I’ll get to it in a week or so.”

Checked with the registration or records reveal that he has not registered, then goes back — brought to the City Attorney and then complain it.

(Inaudible)

Philip E. Grey:

Not in the ordinance itself, no.

Earl Warren:

Are there any regulations of the police department requiring the giving of notes?

Philip E. Grey:

I think it’s become a just a matter of policy in investigation and interrogation as I have attempted to say in the field, they are advised.

Earl Warren:

And who fixed that policy?

Philip E. Grey:

Custom over a period of time.

Earl Warren:

Is any of it in writing?

Philip E. Grey:

No, not that I know.

Earl Warren:

All right, go ahead.

Philip E. Grey:

I think yesterday Mr. Justice Frankfurter asked a question to counsel as to the justification for this type of an ordinance.

Being interested in this case knowing it’s coming up before this Court, I noted a news article appearing August the 8th in the Los Angeles Times.

It was significant to me in that it showed a young girl, a secretary, 22 years of age, walking down the street when a man grabbed her, stuck a knife in her back, dragged her to the rear of a house.

He assaulted her, she screamed, and he left.

This young lady was taken to the police department.

She was able to identify the victim by police photographs.

It appears that this man had registered in 1948 as an ex-convict having been sentenced in the State of Indiana for criminal attack upon a 25-year old woman.

Philip E. Grey:

Therefore, a period of nine years, there was no criminal activity yet.

And on occasion of — of this sort, he was apprehended.

He was identified because of the mode, the method that was used in the prior case to the most recent one.

So I think that that is one example where a justification is present.

I think it’s also interesting to note that on October the 8th of this year, a news article appears stating that in the United State District Court, Southern District of California, the matter of the case of United States of America versus Hermeghan, Perez, Garcia and Garcia, numbers 26-641, San Diego Criminal Records.

Judge Carter was called upon in the trial court level to pass upon Section 1407 of Title 18 of the United States Code Annotated.

The — we wrote a 35-page opinion holding this section to be constitutional.

And in part, the statute provides that no citizen of the United States who is addicted to or uses narcotic drugs as defined by the Internal Revenue Code or who has been convicted of a violation of any of the narcotic or marijuana laws of the United States or of any State thereof, the penalty for which is imprisonment for more than one year shall depart from or enter into or attempt to depart from or enter into the United States unless such person — such person registers under the rule prescribed by the Secretary of the Treasury, providing a penalty of $1000 or imprisonment for not less than one or more than three years.

In this opinion, Justice Carter answers most of the questions or attempts to answer them that have been here raised as to the right of self-incrimination, the right to travel the constitutionality of a statute.

And that I was very interested to know that Congress had in 1956 passed that statute.

Harold Burton:

That’s limited entirely to the use of narcotics.

Philip E. Grey:

Yes, it is.

Yes.

Harold Burton:

There’s no limitation of this ordinance.

Philip E. Grey:

No.

We have various sections of our ordinance which are directed to narcotics, sections directed to sex violators and the general felony type of conviction.

I’ve asked Mr. Linn to take up the legal matters.

Earl Warren:

Yes.

Mr. Linn.

Clarence A. Linn:

Mr. Chief Justice, may it please the Court.

I — I hope we don’t lose sight of the constitutionality of this statute because of the peculiarities surrounding this particular case in which the lady concerned was fined $250 and given three years probation.

There may have been some matters that took place at or about the time the officers made inquiry of her.

For instance, in their offer of proof at one place here, they say that she was — at the time of her arrest, she was in the company of her employer and attorney.

I don’t know whether it was my friend here, it might have been me and after the thing had happened, I have a — somewhat of a reputation for being (Inaudible) and quite a scene might have happened if they tried to arrest my secretary, and I didn’t think she was guilty, I don’t know whether it happened in this case or not.

But anyway, an incident arose there.

And the lady was packed off to jail and she had a four-day jury trial on stipulated facts.

And —

(Inaudible)

Clarence A. Linn:

— by the time we got through, the — the judge may have been aggravated, the police officer evidently aggravated.

I have no doubt the lady was aggravated, and I have no doubt counsel was aggravated.

Clarence A. Linn:

And those things, although they shouldn’t happen, practicalities tell us they do happen.

And I hope —

What are you implying?

Clarence A. Linn:

What?

What are you implying?

Clarence A. Linn:

Everybody got mad.

And — and the lady got fined $250, it would have been a $5 case otherwise.

Charles E. Whittaker:

I understood the implication of your argument (Inaudible) he shouldn’t judge the constitutionality of this act because it’s (Inaudible) that in this case.

Clarence A. Linn:

In that — that’s — that’s right.

The constitutionality of the act and the purposes should not be overlooked because of what happened in this particular case.

Earl Warren:

But on the other hand this is hardly in conformity with the — on the bare facts that we have here of the policy that — that Mr. Grey would — would have us understand it’s the policy of the department in — in (Voice Overlap) —

Clarence A. Linn:

In this particular case that probably —

Earl Warren:

Yes.

Clarence A. Linn:

— is not what the — the part that would have done.

If the — if the lady had been picked up in some place and — and questioned and brought in and there hadn’t been a — a little ruckus overt, the — the thing would have happened as —

Earl Warren:

What was a ruckus?

Is there anything in the record to show there was?

Clarence A. Linn:

Well, there’s —

Earl Warren:

Why do you weird —

Clarence A. Linn:

— nothing in the record.

Earl Warren:

Why do you weird about it if there was a ruckus point?

And that was the reason, why not say so?

But why infer that there was a ruckus?

I don’t know if there was a ruckus.

Clarence A. Linn:

Well, I am — I am reading from their offer of proof.

Earl Warren:

What does it say?

Clarence A. Linn:

It says that she protested this conduct.

She was handcuffed and roughly shoved into the rear of prowl type driving — driven by the arresting officers at the time of her arrest.

She was on the company of her employer and a lawyer — attorney who attempted to discuss the matter with the arresting officers, and they ignored it.

And that she was taken to the wheelchair station.

Clarence A. Linn:

That’s what the offer of proof which was not accepted because it was brought in, in support of a motion in arrest of judgment after trial had been completed and judgment was about to be pronounced.

It wasn’t — I’m just taking this at its —

Earl Warren:

Yes.

And that’s what you referred to as a ruckus?

Clarence A. Linn:

Yes.

That’s — that’s what I referred to —

Earl Warren:

Pardon me.

Clarence A. Linn:

— as a —

Earl Warren:

That’s all I just want to —

Clarence A. Linn:

— as a ruckus.

Earl Warren:

(Voice Overlap) Yes.

Charles E. Whittaker:

Mr. Linn may I ask you, sir?

What had you to say as to whether or not this case is properly here?

I understand from counsel for petitioner that as far as they could go as of right was the Court of Appeals.

Is — I ask you now, is there a discretionary right to go to the Supreme Court of California?

Clarence A. Linn:

No.

Charles E. Whittaker:

None at all?

Clarence A. Linn:

There is none.

The only thing that could have been done, I don’t know that it’s necessary, it would have been perhaps on a petition for habeas corpus attacking the constitutionality of this particular ordinance.

That has been done in California in misdemeanor cases where you can’t get any higher than the Appellate Division of the Superior Court.

Charles E. Whittaker:

You concede then, as I understand it —

Clarence A. Linn:

Yes.

Charles E. Whittaker:

— that the petitioner exhausted for legal remedies under the law of California.

Clarence A. Linn:

Yes.

She — she’s — there’s no question about that.

Now, there’s been some question raised, what’s one matter of policy that in some question raised as to — to how these people are registered, we have filed, we have filed here with the Court, a letter for the Department of Corrections attached to it the regulations of the Department of Corrections which is the prison authority of the State of California.

And we must remember that it is the policy of the Department of Corrections not to release prisoners except on parole, subject to supervision for a period.

Every parole officer is instructed to see that these people registered.

The man is given a pamphlet or a piece of paper, a mimeographed piece of paper telling the cities in which registration is required, the jurisdiction’s county wide in which registration is required, he has given a course of, they call, pre-parole training in which he is directed to do this thing.

And every parolee, I think you can say without a peradventure of a doubt that goes to Los Angeles County, well, the city is a mad county, or other places in the State where they are required to register is told to register and they checked it.

Charles E. Whittaker:

It goes there from a penal institution —

Clarence A. Linn:

In California.

Charles E. Whittaker:

— in California.

Clarence A. Linn:

That’s right.

Charles E. Whittaker:

But what about someone, using the example yesterday, coming from New Jersey?

Clarence A. Linn:

Well, he would have to register and he would be presumed to know the law.

The fact that the man comes from New Jersey wouldn’t give him any greater rights.

He now the same difficulty in determining whether his crime was committed in New Jersey was the felony in California as he would have, what he was charged with recidivism in California.

Your prior convictions no matter where they were — were committed become a — a part of the proceeding in California.

Those things are things which are incident to law enforcement and as the police states.

And I think it’s correct, policemen don’t go after people willy-nilly.

If a person hasn’t registered, just call to there attention from outside the State, they are registered.

Very impersonal in these matters except that upon unique occasions that happened.

Earl Warren:

Mr. Linn, you spoke of the Department of Corrections and the — the instructions they give all their parolees.

This one — she was never under the jurisdiction —

Clarence A. Linn:

No.

Earl Warren:

— of the Department Correction, was she?

Clarence A. Linn:

No.

Earl Warren:

And he was — that’s only for state — state institutions.

Clarence A. Linn:

But the probation —

Earl Warren:

She wasn’t there.

Clarence A. Linn:

— officer in Los Angeles has filed — supplied Mr. Grey with a similar letter which is on file that it is their policy, although they do not have the written regulations as does the Department of Corrections.

The probation officer in Los Angeles County advises the people of the necessity of registering.

And — so that covers practically all the people who would be subject to the act in California, this ordinance, except the people who come from outside the State.

Earl Warren:

Now — now, let’s just — just go into that a bit.

There are 47 other counties in the State beside — besides Los Angeles.

And there are thousands, tens of thousands every year who were convicted of crimes that are denominated the felony but who get misdemeanor punishments and who do not go to the state institutions nor are they in anyway subject to the policies of — of the County of Los Angeles Probation Department.

Those people don’t get any notice about — about the — about the ordinance in Los Angeles, do they?

Clarence A. Linn:

Not unless — I have no information, we — not unless the probation officer from their particular county in caring for these people would advice them.

And that many — many probation officers, they transfer their probations when they move from one county to another, they transfer them to the supervision of the probationer in the other county or the probation officer in the other county.

Clarence A. Linn:

And I would think that there, he would get the information.

Earl Warren:

This saying Mr. Linn — the only reason I said that was because you said that took care all of those in California and — and it doesn’t take care of but a minority of them.

Now, in addition to that, this case goes back to — this statute goes back to 1921.

A man could have committed a crime when he is 21 years of age at that time and could be 58 years old now.

And I’m sure at that time, there was no such policy to — either in Los Angeles or in the State Corrections Department or in any county of the State of notifying them of anything but they are — but they are under this act, aren’t they?

Clarence A. Linn:

That’s true.

Earl Warren:

And how would all those people — would all those people know?

Clarence A. Linn:

If we want to rely upon a purely legal proposition, all men are presumed to know the law.

Earl Warren:

Well, I know — I —

Clarence A. Linn:

It comes to that foundation.

Earl Warren:

Yes.

But —

Clarence A. Linn:

That’s the —

Earl Warren:

But I was just —

Clarence A. Linn:

Yes, I know.

Earl Warren:

— I was just addressing myself to your statement that that took care of all — all of them in California.

It’s only —

Clarence A. Linn:

It takes care of all of who come out of State’s prison and all who come out of — out of the probation office in Los Angeles County and if we weigh the population of the State, we will see that that would take care of a — more than a majority of it.

Earl Warren:

Well —

Clarence A. Linn:

At Northern California, I concede that Los Angeles —

Earl Warren:

That may be a liable on Los Angeles.

Clarence A. Linn:

— of the whole population.

Earl Warren:

That may be a liable on Los Angeles.

[Laughs]

Clarence A. Linn:

But here, we got — this — this is a — I know about the hardships of these registration laws.

This — this is — is a small amount compared to the sex registration law, sex violators that we have in California, a state-wide law, all types of sex violators have to register.

They have to register with their sheriff, the Chief of Police.

When they change their residence, they have to register.

Charles E. Whittaker:

Isn’t that somewhat of a different question?

Clarence A. Linn:

No, I don’t think so.

Clarence A. Linn:

In the sex crime — remember they — the — all kinds of — what we call the “California lewd bag” as to registry.

A statutory rape, I’ve had this people come in and say, “This poor young man,” when he was in high school, “did something and now he’s 40 years old, he has to registry — he has to register.”

Earl Warren:

Now —

Clarence A. Linn:

The legislature said so.

Earl Warren:

Now, Mr. Linn, let’s — let’s just examine those two.

It happened that somebody do that as you know.

Clarence A. Linn:

Yes.

Earl Warren:

In the first place, the registration of sex offenders says, “Any person who, since the first day of July 1944,” and this act was enacted a year or so afterwards.

This act — this ordinance goes back to 1921.

And as to some of these offenses in — in here, it says, “Any person who, after the first day of August 1950, does so and so, and so and so.”

So the — the — your statement that a person having done something when he was a boy and is now 40 years old had to register under this act isn’t — isn’t entirely accurate because there hadn’t been enough elapsed time for that to happen.

Clarence A. Linn:

40 years old — I had a case right on my desk about a boy who did something when he was 17 years old and he was trying to be a deputy sheriff now and for the first time in this — he — he is confronted with this thing.

Earl Warren:

He what?

Clarence A. Linn:

He’s registered as a sex offender.

And he — he has precluded from getting this job because this thing has been made known, and that we have their fathers and mothers in everyday.

Earl Warren:

But what is this date — what does this date refer to?

Any person who, since the 1st day of July 1944, has been or he’s hereafter convicted in the State of California the — of the offense of assault would intend to commit rape with the infamous crime against nature or any offense involving lewd and lascivious conduct or any person and so forth who fails to register.

That’s only since 1944.

Clarence A. Linn:

Yes, that’s — that’s true.

Earl Warren:

How would — how would that affect a man who is — had such an arrest when he was 17 years old and is now over 40?

Clarence A. Linn:

Well —

Earl Warren:

That’s — that’s —

Clarence A. Linn:

— my arithmetic is —

Earl Warren:

Is bad.

Clarence A. Linn:

Is bad.

Earl Warren:

[Laughs]

Clarence A. Linn:

But the —

Earl Warren:

That’s all I was pointing out.

That’s [Laughs] —

Clarence A. Linn:

Well —

Earl Warren:

(Voice Overlap) —

Clarence A. Linn:

— (Voice Overlap) bad but the law is good and that’s the —

Earl Warren:

[Laughs]

Clarence A. Linn:

Now, we come to the classic —

Hugo L. Black:

May I ask you one question?

Clarence A. Linn:

Yes.

Hugo L. Black:

I — I didn’t quite understand.

You said he was precluded from getting a job.

What do you mean by that?

Clarence A. Linn:

Well, he’s registered.

They have his name there registered as a sex offender at the age of 17.

He can’t get disposition as a deputy sheriff.

Hugo L. Black:

Is he precluded by law or just precluded —

Clarence A. Linn:

No, he is not precluded by law.

Hugo L. Black:

— just precluded because they wouldn’t want to take him?

Clarence A. Linn:

That’s — they — it — that’s the thing that —

Hugo L. Black:

Yes.

Clarence A. Linn:

— that hurts the most.

Earl Warren:

His fingerprints would have shown that, wouldn’t they?

Clarence A. Linn:

That’s what I was going to come to.

About this violation of privacy, the thing that you have to do under this law, I’ll admit that all of the information that the police gathered in Los Angeles is here in Washington, D.C.

That’s also in the Bureau of Investigation in the State of California at Sacramento.

The police, for reasons of local efficiency, desired to have the record there where they have immediate access to it.

I cannot see anything objectionable in that.

Earl Warren:

But you can‘t put a man in jail because his fingerprints are not here in Washington or — or in Sacramento Bureau Criminal Identification and here, you put him in jail.

Clarence A. Linn:

You put him in jail here for not registering —

Earl Warren:

Yes.

Clarence A. Linn:

— because the community legislature has said, the legislature body of the community has said that, “In its wisdom, it believes this is a way to prevent crime.”

And the reasonableness of that rule as the presumption in favor, you have to show that the rule is unreasonable that it’s a capricious classification.

The attack must be made by the petitioner.

Harold Burton:

Mr. Linn.

Clarence A. Linn:

Yes, sir.

Harold Burton:

Can — on the constitutional question as to whether or not this is in proportion to the need which is an attempt to meet with this necessary (Inaudible) all persons?

Clarence A. Linn:

All persons convicted of felonies, it would be difficult to say which kind of felony, where this recidivism lie, if we word forgery as — is, we know, one of the crimes in which there is a fairly high rate of recidivism.

We know the legislature said it is so in sex crimes, narcotics, we know armed robbery for the purposes of administration.

If nothing else, it would be reasonable to say, “Well, let’s have all people registered, whether they’re stockbrokers who’ve run afoul of the law in selling stock or burglars who have broken into stores”.

If you have to break it down too much, then you have an administrative problem worse than — than Judge Brennan contemplates about the people who come from New Jersey charged with crimes if they do not know of felonies in California.

The administrative problem would be great if you had to set it and the statistics.

You have to compile and to show which crimes were more subject or became more prominent as you — as you study recidivism.

The class of that occasion based on conviction of crime and that’s —

Harold Burton:

Well, it is true, isn’t it — it is true, isn’t it, that recidivism occur much more readily in some type of crimes than it does in others?

Clarence A. Linn:

Yes, that’s true.

Harold Burton:

Narcotics (Inaudible)

Clarence A. Linn:

Narcotics, is one, sex crime is —

Charles E. Whittaker:

(Inaudible)

Clarence A. Linn:

— supposed to be another.

Charles E. Whittaker:

That’s why I —

Clarence A. Linn:

I’m not a specialist on it but those are the figures that the legislature accepts.

I don’t know whether sex crimes are.

I — those are the ones that bother us most on these registrations because people have a certain horror and naturally so and rightfully so of — of that type of criminal.

And — and those — that is also a crime which some young people fall astray of the law in and outgrow it probably more rapidly than in some others.

That’s not my job.

That’s the legislature who studies these things and makes the classification.

But the classification here is one convicted of crime.

The law applies to that person.

Now, that classification is the oldest crime itself.

You can’t vote to California if you’ve been convicted of a felony.

You can’t vote public office.

You can’t get public employment.

It’s a ground for divorce.

Clarence A. Linn:

It’s a ground for impeachment of witness.

It disqualifies persons from being jurors.

You can’t carry firearms of — own or possess firearms except under very stringent rules.

Persons convicted of certain effect of sex crimes that are required to register.

Narcotic addicts are required to register under the federal law.

These are all classifications based upon conviction of crime.

And they are as old as our laws.

In Nebbia versus United States, this statement is made, “The Fifth Amendment, in the field of a federal activity, and the Fourteenth Amendment, as respects state action, do not prohibit governmental regulation for the public welfare and the guarantee of due process, as has been held, demands only that the law shall not be unreasonable, arbitrary or capricious and that the means selected shall have a real and substantial relation to the right to be attained.”

Now, take this question of recidivism or professionalism in crime.

You have all kinds of statistics.

Probation officers show that their probationers make good records.

Parole officers show that their parolees make good records.

The prison records also show this.

They show that in the year 1945 to 1949, the records compiled by the Bureau of Criminal Statistics of California show that only a little over one fourth or 25.8% of the people admitted to prison, finally get that, no prior criminal record at the time of the admission to prison.

Now, 74.2% of the people who are received into that prison have had prior criminal experiences, 37.6% prior jail or juveniles are brushes with the law, 24.5% at one prior criminal term, 9% had two prior criminal imprisonments, and 7.1% three or more prior — three or more convictions.

This shows that these people are potentially recidivists.

Over 75% of them are potentially recidivist because they have repeatedly committed offenses.

They’re right out of prison on parole in Los Angeles County, Los Angeles City, other cities of the State, and San Franscisco not among them, have said by ordinance that these people must register because in the opinion of the legislative body, they are potentially dangerous to the community.

Felix Frankfurter:

So far as I can make out from what you argued, the law has — the law has, what you call, justification merely in regard to crimes committed outside by felons or equivalent, outside the State because as to crime within the State, automatically, the conviction, the sentence to the record which, in the various counties of your State, it could be passed — it could be registered in some central register.

Isn’t that true?

Clarence A. Linn:

He — but this change in addresses are not.

You could have a central state-wide one.

Felix Frankfurter:

When must the — one — when must the registration be — when must be registered?

Clarence A. Linn:

When he comes out of jail.

Felix Frankfurter:

When he comes out of jail.

Clarence A. Linn:

Or after his conviction, if he’s released on probation.

He never goes to jail, let’s say, in — in probation cases, in many of them.

Felix Frankfurter:

You can’t register right after conviction?

Clarence A. Linn:

Well, I suppose he could but he — it’d be on his way to San Quentin or —

Felix Frankfurter:

Well, is the point — is the point then is the point of the statute to keep track of people after they come out of jail?

Felix Frankfurter:

Is that the point?

Clarence A. Linn:

After they are convicted, yes.

Felix Frankfurter:

Well, more than that —

Clarence A. Linn:

Yes, out of jail.

Felix Frankfurter:

After they have served their sentence?

Clarence A. Linn:

After they have served —

Felix Frankfurter:

Or you can put on probation.

Clarence A. Linn:

Or put on probation, yes, that’s it.

Felix Frankfurter:

If they put on probation, then, automatically, you could have a central register then and there, couldn’t you?

Clarence A. Linn:

You could have a central register then.

Felix Frankfurter:

Well, I mean, just a — just a matter of bookkeeping.

Clarence A. Linn:

That’s it.

Felix Frankfurter:

But I — I don’t mean by the — by the probationer but by the court records.

Clarence A. Linn:

That’s — that’s correct.

Felix Frankfurter:

That could be automatically transferred to somewhere, couldn’t it?

Clarence A. Linn:

Yes.

Felix Frankfurter:

So the next — I mean, put that burden on him.

Is that right?

Clarence A. Linn:

Yes.

Felix Frankfurter:

In order to keep track, is that what we are keeping facts?

Clarence A. Linn:

That’s — that’s the way to keep — keep track and then he is required every time he changes his residence to — to note that fact, just the same as I have to do.

Felix Frankfurter:

You mean to — what is it?

As a probation, they must do that but he must be — suppose every time an X person is sentenced for two years and he then registers and gives his address, Jones Street, if he moves from Jones Street, must he reregister?

Clarence A. Linn:

He must — he must give notice of his change of residence.

As I was going to say, Justice, I have to do to the Motor Vehicle Department of my automobile.

Felix Frankfurter:

And that continues beyond the period on which he is on probation, is that it?

Clarence A. Linn:

No, no.

Here’s a —

Earl Warren:

It continues long as he lives?

Felix Frankfurter:

That’s what I’m asking you.

Earl Warren:

Doesn’t it?

Clarence A. Linn:

No.

Earl Warren:

When does it stop?

Clarence A. Linn:

When he has served his term of probation —

Earl Warren:

Oh, well —

Clarence A. Linn:

— and his record is expunged, then he no longer has to register.

And that is a — that thing is done regularly.

Felix Frankfurter:

But in the case of a man who served two years, he must keep this up for the rest of his life?

Is that right?

I’m asking you.

Clarence A. Linn:

Oh, now, I — there’s — there’s that matter.

There’s a rehabilitation provision in the California statute where a man can, by applying to the — to the Court, get a certificate of rehabilitation which is then presented to the governor and the governor grants him a — a pardon based upon this rehabilitation.

Felix Frankfurter:

Must the — must the Governor?

That’s rather ministerial function.

Clarence A. Linn:

No.

The Governor does not have to —

Felix Frankfurter:

All right.

Clarence A. Linn:

But —

Felix Frankfurter:

So that it may well be —

Clarence A. Linn:

If he hasn’t been rehabilitated.

I want to — I want to qualify what I have said there.

Felix Frankfurter:

Me too.

Clarence A. Linn:

There’s been no interpretation of the law considering this rehabilitation matter, that is whether that would wipe out his requirement for registration.

That has never been brought to the attention of anyone or nothing has ever been said about it personally.

I think a good case could be made for the man not having to register after this rehabilitation has taken place.

And as far as the probation, it’s a common thing to expunge the record.

It’s done everyday in Los Angels.

Our old friend Judge (Inaudible), the thing is so common that the Court attachés gave him a sponge on a string which he hangs in his chambers and under it says “To expunge the record”.

In — in a moment of mirth, the Court attachés made him a president.

It’s done all the time.

Clarence A. Linn:

(Voice Overlap) —

William J. Brennan, Jr.:

But what — what’s that mean, Mr. Linn?

Suppose he is registered –has registered —

Clarence A. Linn:

Yes.

William J. Brennan, Jr.:

— under this ordinance, are you telling us that when the record is expunged, the expunging includes the registration?

Clarence A. Linn:

He does not have to register any longer and that fact would be —

William J. Brennan, Jr.:

No, but he’s been registered.

Clarence A. Linn:

He’s been registered.

William J. Brennan, Jr.:

Now, what happens to the record of that registration?

Clarence A. Linn:

The same thing that happens in the court record.

When the record is expunged with another — another record made, the record is expunged.

William J. Brennan, Jr.:

I — I don’t follow.

No.

Clarence A. Linn:

Well, you just —

William J. Brennan, Jr.:

Did he —

Clarence A. Linn:

— you never tear up the record.

The record is still there and they — they note that the record has been expunged.

William J. Brennan, Jr.:

But he has — he has registered, and I take it, the registry takes the form of a card or —

Clarence A. Linn:

Yes.

William J. Brennan, Jr.:

— with his picture and all the rest, doesn’t it?

Clarence A. Linn:

Yes.

William J. Brennan, Jr.:

Now, he’s had — the record, I gather, the offense and the procedures related to the offense has been expunged in the court of record where it was entered, is that it?

Now, who goes to the police station and takes the card out and rips it up or otherwise expunges the card?

Clarence A. Linn:

The Court attaché should do it, whether it’s done or not, I don’t know.

The man can’t do it.

I have had a — my attention called to that as far as the — the Bureau of Criminal’s — the Criminal Identification in California where they have, what we call, the FBI records.

You notify the custodian of those records that the man’s criminal record has been expunged on that what we call the wrap sheet on the — in the other — in — in the last column that the record expunged.

And that will be set even back here to Washington to the FBI records.

I — I —

Earl Warren:

But, Mr. Linn, isn’t that only a notation on his record, his — his fingerprints and his pictures remain in that Bureau forevermore and that —

Clarence A. Linn:

That was —

Earl Warren:

— the man is — if the man is ever checked again, his — his fingerprints and his pictures show up, and wouldn’t it be exactly the same thing in the registration under this ordinance, if the man registered and was a probationer and his — his conviction was expunged still, forevermore, there would be this picture and this registration of him in the — in the Bureau there —

Clarence A. Linn:

Yes, that’s true.

Earl Warren:

— where such police uses as they may desire to make of it.

Clarence A. Linn:

Well, that’s what I say.

And then how can this registration with the police department be unconstitutional when you’ve got it in four or five other places?

The only reason it’s in the police department is for local convenience.

Earl Warren:

Yes, but — but, Mr. Linn, aren’t we dealing with another thing there?

Your — your prints are taken as an operation of law.

When a man is arrested, his fingerprints are taken, he is photographed and that goes through the — the State Bureau of Criminal Identification to the FBI and is distributed throughout the — throughout the country.

Now, in this case, however, you’re — you’re adding an additional burden to the man.

You are saying, “If you don’t, yourself, go there and register yourself, we’ll put you in jail.”

Clarence A. Linn:

Yes.

Earl Warren:

Now, that’s an entirely different thing, it seems to me, from keeping the photographs and the — and the fingerprints in these various bureaus.

There’s no crime involved in — in that.

But here, you make it a penal offense for a man not to — not to register and regardless of where he comes from in the country, regardless of how long ago it was, regardless of how he — he may have rehabilitated himself and you — still you could put him in jail for not registering.

Clarence A. Linn:

That’s —

Earl Warren:

That’s the difference, isn’t it, between the two?

Clarence A. Linn:

That’s — oh, surely that’s the difference.

But that same difference appears in your sex registration laws?

The same difference.

Earl Warren:

Yes, but that hasn’t — that isn’t here now.

Clarence A. Linn:

Well, that’ll be here when you —

Felix Frankfurter:

You mean he’s —

Earl Warren:

Yes.

Clarence A. Linn:

[Laughs]

Absolutely in this case.

Earl Warren:

Yes.

I have no doubt but it isn’t here — it isn’t here now.

Clarence A. Linn:

Well, it’s a matter that this Court —

Earl Warren:

Yes.

Clarence A. Linn:

— in writing an opinion will undoubtedly consider.

Earl Warren:

I would think so.

Clarence A. Linn:

I will undoubtedly consider.

These sex registration laws, these narcotic registration laws, all these people can be rehabilitated.

Felix Frankfurter:

May I — may I ask, without remotely making any suggestion that might be drawn from the questions whether I may assume that California is attracted also to people who have served their term in other States or may I — it would have be fanciful to say this may hit a sufficiently numerous body of people who have come into California with record, with criminal record from other States.

Clarence A. Linn:

I — I —

Felix Frankfurter:

I don’t mean to make any suggestion except to praise the climate of California.

Clarence A. Linn:

I think — I think it — it does.

But, Your Honors —

Felix Frankfurter:

I’m asking this because I —

Clarence A. Linn:

That’s — that’s (Voice Overlap) —

Felix Frankfurter:

— I was just informing my own mind on — on the applicability which I understood you characteristic — characteristic candor admitted applies to convictions anywhere outside of California.

Clarence A. Linn:

Yes.

Felix Frankfurter:

And therefore, I don’t want to make an assumption that’s unreal.

Clarence A. Linn:

No, it — it would.

There’s been no decision on it but I will say this —

Felix Frankfurter:

No, but you — you state that.

Clarence A. Linn:

— that a long period of administrative — carrying out of this law shows that it will be applied to those who come from (Voice Overlap) —

Felix Frankfurter:

And — and I may assume it’s not fanciful that a lot of people or sufficiently numerous body of people will go to California to start life a new as they’ve always have in the history of California.

Clarence A. Linn:

That’s — that’s one of the advantages of California and its entire disadvantage —

Felix Frankfurter:

Yes.

Clarence A. Linn:

— the best figures that we have available on that.

I haven’t got the exact figure but I could tell you that the Los Angeles District Attorney’s Office has the — more cases filed under Reciprocal Enforcement of Support Act, men who have left other parts of the country and left their wives and children behind and to start life anew in Los Angeles until they catch up with them.

It showed that the —

Felix Frankfurter:

That’s an offense in a good many States.

Clarence A. Linn:

It is.

Felix Frankfurter:

That’s a criminal offense, not merely a civil requirement of paying.

Clarence A. Linn:

But I say that shows the movement of people who would violate the law.

And that’s all a more reason why it should apply to people from out of the State.

William J. Brennan, Jr.:

Well, tell me, Mr. Linn, I gather California provides no expunging procedure as to those who’ve been convicted —

Clarence A. Linn:

No.

William J. Brennan, Jr.:

— outside the State, does it?

Clarence A. Linn:

No.

William J. Brennan, Jr.:

So they are subject always to registry.

Clarence A. Linn:

That — that would be true unless they stayed back home to — to get some sort of a — a procedure.

We shouldn’t be blamed for that.

We got it —

William J. Brennan, Jr.:

Tell me.

Is — does this expunging procedure apply also to convictions under this ordinance?

In other words, can this lady ever have this conviction expunged?

Clarence A. Linn:

Oh, this is a misdemeanor.

It’s — it’s felonies that you’ll expunge the record.

For misdemeanor cases, you — you don’t.

This is a misdemeanor, the felony cases in which the records are expunged.

Well —

William J. Brennan, Jr.:

So this a record that will be there forever, is that it?

Clarence A. Linn:

She doesn’t have to register under this conviction.

William J. Brennan, Jr.:

No, but she’s been convicted —

Clarence A. Linn:

She’s been convicted.

William J. Brennan, Jr.:

— of this violation.

Clarence A. Linn:

That’s true.

William J. Brennan, Jr.:

And that record stands even though later on perhaps the felony convictions may be expunged?

Clarence A. Linn:

Just the same as my traffic payments.

They still stay there as a record because there are no procedures to — to get rid of that.

Being a misdemeanor, a felony once, yes you can.

Oh, I haven’t touched on the subject of the lack of intent.

That no intent being required in this and — I see both lights on, red or white, but I would like to — to explain briefly why the intent isn’t necessary.

Earl Warren:

All right.

Do that briefly will you please, Mr. Linn?

Clarence A. Linn:

Yes.

The intent in a case of this kind is similar to — what would take — I’ll give the rule briefly as it’s set forth in the — in the Morissette case, which counsel has relied upon.

In that case — we’ll first come to Balint and Behrman, two United States Supreme Court cases, dealing with narcotics, does regulatory measures in exercise on what is called the police power, where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of crimes as in cases mala in se.

No intent is required in cases of that kind where the statute is a regulatory one in order to — to affect some public purpose.

And the difference was pointed out in the Morissette case which affirmed the language of this Court in Balint and Behrman.

But said the — the Morissette case, they said intent was necessary because it was stealing property off of a government reservation.

And they said stealing, larceny and its variance and equivalence which are among the earliest offenses known to the law that existed before legislatures.

In other words, no intent is necessary for the violation of these misdemeanors set up by local legislatures and regulatory matters.

But intent is necessary for those crimes which have come down through the common law where — which are infamous in nature and therefore, there must be an intent.

In this type of case, the intent is not necessary unless the legislature particularly puts it in.

Earl Warren:

But, Mr. Linn, aren’t you — aren’t you also requiring them to register for crimes that are malum prohibitum as distinguished from malum.

Clarence A. Linn:

We’re ascertaining that register because — to be convicted of a felon but —

Earl Warren:

If —

Clarence A. Linn:

— the fact —

Earl Warren:

— but the felonies that — some of the felonies — some of the acts that we recognize as felonies in our State are malum prohibitum and not malum in se, isn’t it right?

Clarence A. Linn:

That’s right.

Earl Warren:

For instance let’s take the — the (Inaudible).

That’s not malum in se, is it?

Clarence A. Linn:

No, but —

Earl Warren:

I think — I think our Court said it’s malum prohibitum.

I may —

Clarence A. Linn:

But I think —

Earl Warren:

— I may be wrong.

Clarence A. Linn:

— intent is necessary as the word, the legislature put it in willfully and knowingly down these things and that put your intent in but if it wasn’t in, I —

Earl Warren:

No, I think the mere — the mere selling of those securities in our State whether you have any intent to violate —

Clarence A. Linn:

Well, that presumed the intent.

Earl Warren:

(Voice Overlap)

I — I —

Clarence A. Linn:

That presumed the intent —

Earl Warren:

That’s my recollection.

Earl Warren:

I may be — yes.

Clarence A. Linn:

— upon the doing of the act.

Earl Warren:

Yes.

Clarence A. Linn:

And — but here, any of these felonies, whether it’s malum per se — malum prohibitum or malum or otherwise, you must register.

But the ordinance requiring the registration is a regulation —

Earl Warren:

I see.

Clarence A. Linn:

— which is not — is malum prohibitum and therefore no intent is required in — to establish a violation of that —

Earl Warren:

Yes.

Clarence A. Linn:

— regulation.

Earl Warren:

Thank you.

All right, Mr. McMorris.

Samuel Carter McMorris:

Mr. Chief Justice, may it please the Court.

Beneath the certain fact that Judge Waters and I argued constitutional law for — for the first two days of this trial, my remaining 10 minutes will — will seem small indeed.

It’s been mentioned several times about appellant’s case taking four days.

For the first two days, Judge Waters and I argued constitutional law and I don’t think that we should have gotten angry at the appellant because of that fact.

It was due mainly to the fact that Judge Waters had to take the case that I cited and obvious after two, justified the prosecution.

It took two days.

We submitted the facts in about five minutes except for what to me is the most important fact of the case.

We never admitted mens rea and contracts of provision taken here by appellee, my feeling is that the true law in this type of situation as stated by this Court in the United States against Kahriger, 345 U.S.22.

In this case, a person who knew of the law and yet, he said, “I will not register or — or as a gambler,” whatever it was, “until I test the constitutionality of this thing”.

And this Court held that as long as he was in good faith knowing the law, not registering but the test of constitutionality that he was not guilty of — of criminal intent, then I submit that — that appellant here has to have no less benefit.

The — here’s — certainly a person who know the law, the liberty of violation or to make a test case which, I think, is — is probable seizure as long as he in good faith as he was in this case, that — when you don’t even know the existence but — but if you did know what would — would either register or perhaps to make a test case, it’ll be readily wrongly had been done.

But certainly, the rule of Kahriger is to the effect that we — there must be a criminal intent in this sort of situation.

Now, this is not all like the typical regulatory statutes which had been mentioned by a police, regulatory implies the regulation of a specific conduct, say to selling something, food or drug.

Say the driving of car, a person may have ability to have a car inspected, a duty to check his lights, a duty to have his food and — and drug checked.

But here, a person is simply living in a community, as — as they imply, amicus curiae for appellant.

A — a perfectly passive status with no action at all, with — this — they are required to know some way that because they are just living in the community, must check a law and see whether now they have to register an ex-con as an ex-con.

It is particularly unfair since the laws are all for a reason.

The law says 33 and there are number of jurisdiction and above all, there are only five States, California being one in the whole United States, only five which our States have enacted such a law of this.

Those had been limited to — to either — to narcotic offenders or the sex offenders in every instance, those five States.

Samuel Carter McMorris:

There have never been the general catchall felonies as you wish to apply to state laws which apply the registration are limited.

And I submit that that limitation in itself made a competent constitution reasonableness although I have my doubt of it.

But certainly, it comes closer to being reasonable than does our present ordinance.

Now — and — and one other point which particularly in California are Section 290 of the Penal Code specifically requires that notice be given before the person is required to register by the Court itself.

And they are required to sign in writing, “We have been informed of our duty to register.”

And that has made a part of the record of the case.

And I submit that this kind of a law had to be dealt at all.

It must first be limited.

And above all, some form of notice must be given before a person to be held a criminal for not registering, particularly as applies to incoming migrants.

And I submit that the only way that they can be properly approached is to require the police not as in their discretion but as matter of the law, built in to the law, that before you register and before you can pick the thencoming people, you must give them first a chance to register and explain the law to them.

.And this is under Section 290, the Court itself or the probation officer or — or someone and also the State must, not in distress, and as a matter of law, tell these people, “You are required to register, sign here that you’ve been told for.”

We have nothing anywhere near that application of reasonableness in — in our department.

Charles E. Whittaker:

Mr. McMorris.

Samuel Carter McMorris:

Yes.

Charles E. Whittaker:

Do you contend there are exceptions to the rule that all persons are presumed to know the law?

Samuel Carter McMorris:

I — I do, Mr. Justice Whittaker, so hold.

And I think that that is the — the holding of the article under that section in Corpus Juris Secundum.

There are exceptions.

I think I’ve cited in my brief where the law is obscure as it is here.

And I think too what is the new law as it is here and where — I think we are in passive state status as — as that — put by amicus curiae is involved.

I think those are exceptions to the — to the number of presumption that we all or presume to know the law.

I think that they are legally recognized exceptions.

I think that here above all in the passive situation, certain exception should be applied.

Charles E. Whittaker:

How would you enforce the law if it depended upon subjective matter of whether or not the person that you were just presumed or not to know that there is a law?

Samuel Carter McMorris:

Well, Mr. Justice Whittaker, simply by placing the burden upon the State of informing them so there can be no question.

You see, rather to leave the burden upon the millions of migrants we have in California or in other cities, City of Los Angeles, placing the burden upon them, we could put upon the State the burden so easily, so conveniently, so firm of — of informing them, “We want to register,” if indeed our policy is not to make criminals out of America is what we do part too much of.

But — but we — we’re trying to enforce a law that the idea is to get them to register, not put him in jail for not registering, and it’s a very simple thing just to tell them either to the Court or to the arresting officers, “We want you to register if you want to live in Los Angeles.

No, you didn’t know this because you do here,” and because — because even lawyers do not know the law, as I did when this thing first of rule.

And many others, as I discussed, never heard about it.

It’s a very simple thing to place the burden upon the Government.

Samuel Carter McMorris:

And I think the constitutional clearance requires them to let this people know, “We want you to register if you live in Los Angeles,” if indeed it’s the law (Inaudible) that constitute all which I have my doubt about.

I’m personally (Inaudible).

I understood Mr. Grey to say that that’s the way the law was effectively administered.

Samuel Carter McMorris:

It is not so and certainly it would not apply in our specific case.

But I think there should be a requirement in the law and not after the women could preach of individual arresting officers, Mr. Justice Harlan, which is — which is the situation which admitted here is left to the (Inaudible) of the officer who, if you’re uncooperative, you don’t stand attention or salute, you can stand up and you can express your constitutional right, free to speak as I think you’re arresting me falsely, you’re on property if you’re going to hold you and show you that we’re the biggest here, which is what happened in this case.

And on one other point, we made an offer of proof that we did not know that we had registered.

Under that, Mr. Judge (Inaudible) could have been shown that the officers gave her a chance to register if — if that were the case.

The question was raised by Mr. Chief Justice Warren, as whether or not in this case, she was given a right the chance to register.

But had that been so, it could have been showed on our offer of proof that she had no notes of any kind and no knowledge that she had registered.

And had the officer give her such notice that could have been brought in under cross-examination.

Charles E. Whittaker:

Well, do you contend that such offer of proof could have appropriately come after the verdict and upon the motion in arrest?

Samuel Carter McMorris:

In the first place, we made an offer of proof before conviction.

We made an offer of showing intent.

Our whole factual of defense was intent, no intent, no mens rea, no notice.

Perhaps, the officer given her notice as was suggested here, we don’t know whether he did or not.

They could have, under cross-examination, shown that in fact, she didn’t have notice because we told her to register or go to jail.

I mean that was never been upon the motion for a new trial or motion for arrest of judgment, that was then a proof of the witness that goes through to stand for.

We concede it that she hadn’t registered.

We wanted to show that she did not know she had to register.

And at that point, surely, they could have brought in the cross-examination the officer told her to register or go to jail which was not — obviously not the fact.

So it nearly screwed what (Inaudible) back to defense but we got from a demurrer raised constitutional objection with the hope of the people.

Now, the fact as — as contended by the — by the Attorney General here that uncooperative people are people at high rate crime rate areas are the ones who get registered or get convicted under this law, shows that the great discretion and leeway letting the police officer to decide who — who to prosecute and — and this would have a particular heavy insight from the minority group because they tend to live at high crime rate areas and are subject more throughout the rest and here, it often aren’t cooperative because they do resent that thing and here people who aren’t cooperative live in high crime rate areas are just singled out admittedly by the police for prosecution whereas other people are not prosecuted but are given the chance to register.

I think we should not them let the people to discriminate the matter of law, the matter of constitutional right that people must first be informed if we do want them to be registered rather that to be made criminals again when they try to straighten up and be decent American citizen.

As for the congressional law I mentioned I do not know what it would be faced whether they were brought here and couldn’t relevant here, to me, of course, to come under attack.

But it’s certainly is a more limited thing.

And I also I submit that it would require notice, would require criminal intent of law which was passed by Congress in 1956 requiring a limited group of narcotic vendors to register.

I suspect that as under all federal laws which I have noticed, they would require (Inaudible) and probably therefore a notice that they had to register.

Felix Frankfurter:

People have gone to jail for five years without any — despite the absence of knowledge that they were violating the narcotics law and this accorded the state law.

Samuel Carter McMorris:

I — I’ve noticed in — in the narcotics case, which I have to print if the Court required that he presumed knowledge of importation —

Felix Frankfurter:

That means they don’t have to have them?

Samuel Carter McMorris:

What — where you?

At least — I’m — I’m sorry.

Charles E. Whittaker:

How else could you enforce the law?

Just tell me now.

If, in a prosecution, the — all the defendant had to say was, “Well, maybe all you say is true but I was ignorant.

That’s an excuse.

Hence, I didn’t know that that was the law.”

Samuel Carter McMorris:

May I state that under this Kahriger rule, if I pronounced the name right, I think that would certainly be the situation.

And it is not a difficult thing because we have them under our present criminal law cite.

I know I must register.

I did inform the Court as a matter of court record.

He had the reporter’s records transcribed.

They were — they were informed in open court of his duty to register.

And they’ve signed.

They have been told the matter of record.

They cannot deny because we have — we have shown conclusively that they did know the state opinion.

They’ve heard in open court.

Charles E. Whittaker:

Well, that might be in a particular case but it is a general proposition.

It will be open where you had no such commitment from the defendant that he didn’t know.

It would be open to him, would it not, simply to say “All the prosecution may say is true yet, I was ignorant of it and therefore, you’d have to discharge me.”

Is that right?

Samuel Carter McMorris:

I think, Mr. Justice Whittaker, that it is true and that it — that it should apply and that the burden of proof should be upon the State if they want to — to have this kind of law this — which is an unusually unique and a strange law.

At first, they (Inaudible) at all but I do think that we do consider the — the concept of criminal registration constitutional at all, that it must be with proper notice even if we don’t limit to this small kind of appeal.

Charles E. Whittaker:

Don’t you get down actually to the question of whether or not there’s reasonable relationship between this ordinance requiring registration and the purpose for which registration may be required?

As I indicated they are suggested to counsel for the State.

Clearly, it would seem to me, that in narcotics and sex offender cases, there is such reasonable relationship between a registration ordinance and the offense as to make it reasonably sound, but when you make it general to cover all possible offenses wherever committed, that might have been regarded as felonies in California, then you got a different question, haven’t you?

Samuel Carter McMorris:

I agree, Mr. Justice Whittaker, on — on that point.

As one of the points, as I think I have attempted to raise in my brief along with many others that I’ve tried to think every possible to concede the point including the vagueness of the ordinance other than — as to what — when you are pressed of felony, particularly says its strictly to the Court as to whether or not a crime is actually a felony or a misdemeanor, if it is possible to felony and also of the right given to the Chief of Police to pass whatever law may be necessary and proper to — I mean whatever — may be necessary and proper of carrying into effect the registration ordinance for a number of other reasons which I have attempted.

I – I think I have tried to incorporate the various points made by Mr. Justice Whittaker.

(Voice Overlap)

Hugo L. Black:

Your time was up but there’s one other question I want to — I don’t know if it makes any difference in the point you’ve raised.

From your brief, I gather, you’ve argued quite a different point with reference to notice.

Is that what you put in here?

You offered to prove, as I understand, that this law which required registration of conviction of a felony was a law that was not clear and what a felony was.

The definition of a felony in California was one that was so vague and ambiguous.

It frequently would require proof of some kind and study an investigation to determine whether a person’s act was a felony.

You offered to prove, as I recall it, during the trial that she did not know whether the offense which she committed was a felony or not a felony.

You were raising a point there not that — not saying that you were challenging the idea that a person was presumed to know the law, I mean, in that favor, but that they couldn’t be presumed to know so as to fasten criminal guilt on the meaning of a felony when it was obscure as it was in California.

Samuel Carter McMorris:

I think, Mr. Justice Black, that I made both points.

My first — I’m sure she had no criminal intent at all —

Hugo L. Black:

That’s right.

Samuel Carter McMorris:

— and no violation.

(Inaudible)

Hugo L. Black:

I said in — in this aspect of it that you are arguing and as I gather your brief, you’ve cited some cases which I haven’t read where — that under those circumstances if the vagueness and ambiguity of that face of the law which makes — brings it in conflict with due process because of the fact that the person can’t know that whether there’s any duty on them to register or not.

Samuel Carter McMorris:

I didn’t understand.

Hugo L. Black:

I’m not saying that came as your case but it seems to me that’s an addition, additional argument which — which you made and was presented to the trial judge while the case was in trial.

Samuel Carter McMorris:

I didn’t make that point, Justice.

Thank you, sir.

Earl Warren:

And Mr. Christopher, if you would like to have five minutes in which to sum up your views as friend of the Court, I’d be very happy to hear you.

Warren M. Christopher:

Thank you, Mr. Chief Justice Warren.

By way of summary then, we first thought to show here that the effect of this ordinance is to invade the constitutionally protected right of convicted persons.

The first one we mentioned was the right to privacy.

Mr. Linn made that point very well for me when he told the story of the young sex offender in California who found it impossible to get a job now because of the existence of his registration.

Another constitutionally protected right, which we feel is invaded by this ordinance, is the right to liberty.

And finally, we’ve talked about the right of free transit among the States.

The privilege and immunity and move freely among the United States.

I might bring this point closer to home by asking you to imagine that there was an ordinance in Alexandria, one in Arlington and one in Falls Church as there are in many Southern California communities.

Now, this ordinance has contained a provision that if you go into a particular area five times in a month, you have to register.

So a person living in any one of the Virginia communities would certainly have to register in every other one because his normal professional and social life would certainly take him into the other community.

In Los Angeles, the only way a person can be safe with the freeway system being what it is and the constant transit from one part of the city to another is to register in all of the communities.

Warren M. Christopher:

The second point we’ve attempted to make is to say that if this ordinance is permissible at all, it cannot be sustained here because it is not reasonably restricted to the evil with which he purports to deal.

That’s Mr. Whittaker’s point exactly.

I’d like to expand that to say it’s not only as it limited — not limited in terms of the offenses that are included but as our brief indicates, it’s not limited in terms of time elapses since conviction and it is not limited in terms of first — first offenders and probationers.

I would again point out that the statistics that Mr. Linn hasadduced here today with respect to the prison population and the number of convictions that they have had are not quite in point with respect to first offenders and probationers as I said yesterday about all those statistics prove as the judges don’t very often send people to prison unless they have prior records.

I’m sure it’s common knowledge to all of us that most first offenders are put on probation and never reach that prison population.

There are a great, great many people in the United States who commit one crime in their life and thereafter lead law-abiding lives.

And finally our third point, and this is on somewhat different level, we contend that when a morally innocent and passive status has been made a crime, conviction of that crime requires proof of wrongful intent, requires that is a showing defendant knew or should have known of her duty to register and ignored it.

Now, at this point, I’d like to deal with the question that Mr. Justice Whittaker raised.

He asked how you would go about proving this matter at trial that the defendant always get off by saying that she or he did not happen to know of the ordinance.

If the answer to that is that this would be as any other fact in the course of the trial, if the defendant claimed that she did not know of her duty to register, the prosecution could controvert that and put on evidence that that was just inherently unbelievable.

If the Los Angeles police had publicized this ordinance in the way that I think they ought to by radio announcements and in the newspapers, they might very well be able to convince the jury that she was not telling the truth when she said that she didn’t know about it.

So it seems to me that that would be an issue in the litigation just as other issues as to her guilt and innocence.

And I see no insuperable problem in that regard.

I would mention in that connection that I feel that Mr. Grey has almost conceded this point by his statement that it’s the policy of the police to permit a person to register if he’s picked up and doesn’ know of the law.

That’s exactly what I’m contending for.

I would just like to have that made more definite than in the discretion of the police, the statement in — from the police that they used this ordinance only with respect to people who are uncooperative or who live in high crime areas, I think it has in it a seed of a very dangerous harassment.

High crime areas has an unfortunate connotation, meaning areas of our city where the minority groups congregate and live and uncooperative knows there’s something that can be determined by a particular police officer in terms of his like or dislike of the person who was involved.

And thus we are contending that a person should not be convicted of a crime punishable by imprisonment simply because she existed for a period of time within the geographical limits of the city and at some time in the past had been convicted of a crime punishable with felony in California.

Earl Warren:

Thank you.

Now, Mr. Christopher and Mr. McMorris, I — I would thank you, on behalf of the Court for having represented this — this woman without compensation, you, Mr. Christopher, for acting as a friend of the Court in the case.

We are always reassured when counsels are willing to give their time and — and effort in this — in this manner.

You rendered a real public service.

Gentlemen, I — I want to thank both of you for the earnest way in which you have represented the City of Los Angeles and State of California.