Lambert v. California

PETITIONER:Lambert
RESPONDENT:California
LOCATION:Railroad Crossing

DOCKET NO.: 47
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: State appellate court

CITATION: 355 US 225 (1957)
ARGUED: Apr 03, 1957
REARGUED: Oct 16, 1957 / Oct 17, 1957
DECIDED: Dec 16, 1957

ADVOCATES:
Clarence A. Linn – Assistant Attorney General of California, reargued the cause for the appellee pursuant to an invitation of the Court
Philip E. Grey – argued and reargued the for appellee
Samuel C. McMorris – argued and reargued for the appellant
Warren M. Christopher – reargued the cause, as amicus curiae, in support of the appellant, at the invitation of the Court

Facts of the case

Question

  • Oral Argument – April 03, 1957 (Part 1)
  • Oral Reargument – October 17, 1957
  • Oral Reargument – October 16, 1957
  • Audio Transcription for Oral Argument – April 03, 1957 (Part 1) in Lambert v. California
    Audio Transcription for Oral Reargument – October 17, 1957 in Lambert v. California
    Audio Transcription for Oral Reargument – October 16, 1957 in Lambert v. California

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

    Earl Warren:

    — you may proceed.

    Samuel Carter McMorris:

    Thank you, Mr. Chief Justice.

    Now, may I answer to the best of my ability the last question presented was why was she arrested.

    I have two theories because one, there is the type of arrest where they simply a false arrest in which a police officer just stopped anybody they have the faintest suspicion, it might be dope users, something like that.

    Then you — they arrest you, search you, check your arms.

    If you’ve got them, it marks the person you arrest.

    Recently, one of the few and we spoke with the facts in — in California, particularly certain neighborhoods.

    They may be minority neighborhoods or they may be the Skid Row neighborhood, but there are neighborhoods where you simply have false arrest.

    My second theory is the officer may have mistaken her for someone else.

    But neither event she wasn’t who he thought she was and — and upon finding no present violation of crime they held her for not having arrested for crimes she committed four years ago of which she had no notice or duty to register.

    And now, I repeat that I think that in orders like this to be reasonable, to be constitutional, must keep notice as on Section 290 of our penal code, which requires that a person — the Court could — puts him on probation or the — or the probation officer when the — or the warden or some — and some — or to somebody to have him sign in writing or have been told that I must register.

    Then of course if they commit the crime they have had some prior knowledge.

    This is not the kind of thing in which I think mens rea may be dispensed with.

    I think taken the Kahriger case from this Court, on the registration of — of gamblers as an example in which this Court went even further.

    And here, a person who knew he had a duty to register, but did not do so because he thought that was unconstitutional to require him to register, was held to be not violative of the statute because in here we don’t even have a notice to register.

    And the other person was held guilty of failing to do what he’s — have never been told they had to do, which you couldn’t learn in due course, in normal course that you had to do.

    It’s not like selling meat or driving a car where you have an affirmative act about which you can get advice or have you inspect those meat.

    Here is an act, a big thing to abstract which you ought to know you have to do.

    And how many are faced before that category which no one has any notice.

    I think that notice in this type of ordinance as — and it isn’t all federal ordinance of the type where they got hold a person for violation of an ordinance to do something or law to do something.

    And same thing was said in the Kahriger case on the gamblers registration law.

    Now, it is also my point that the law requires self-incrimination.

    We have in California case, I cite on page 14 of my brief, People against McCormick which held that the law requiring Communist to register was unconstitutional because it was self-incriminating.

    And we submit for reasons pointed out here, I won’t take too much time because my time is expiring.

    The reason pointed out in the brief, we submit, that this ordinance is in the same category.

    Particularly, in view of the fact that we have to reveal past criminality and that California has a statute on habitual criminality which you must reveal under this particular law.

    And the McCormick case if applied equally to Ms.Lambert would have — would have outbid this — this conviction.

    Now, as I was saying this — this law is unreasonable and that it is not applied and that no one registered.

    Only 10% has registered and most of them have no notice, except those who have registered and the ones who have notice under 290 penal codes.

    Very few register as felons generally.

    Samuel Carter McMorris:

    So — so the law serves no purpose.

    In fact, this is conceded by the appellee when he states that well, it doesn’t do any harm because we’re going to find out through the FBI records anyhow.

    But then I submit let’s rely on the FBI records and not invade the privacy of people who — who have served their time and want to be decent citizens again.

    Let’s rely upon the FBI records and not upon self-incrimination.

    Now, the appellee in — in their brief measured many other types of registration which have been held valid.

    May I submit that every type mentioned here does not fall in the category of criminal registration.

    They are not with reference to crime.

    In criminal matters, we have special constitutional protection which do not apply to registration of lobbyist, registration of other type of employees or participant employees.

    These are not criminals as such.

    They are people simply who were — must be regulated and therefore must register.

    No amount of criminal prosecution or attempt to prosecute or salutation of ones own prosecution nor as self-incrimination.

    I submit that the statute is too vague.

    In the first place, it requires a person to interpret the — the California distinction between felonies and misdemeanors, since it applies to felons only.

    And second — and this is a very difficulty thing for the courts to do.

    And second, it permits the Police Chief to write in certain things under — under I think Section 10 of the — of the ordinance.

    Police Chief may — may require anything else he desires as far as registration is concerned.

    And I submit that the catchall phrase such as that may be appropriate to Constitution as giving legislative power.

    But in this case, you give legislative power to Chief of Police that that in itself is unconstitutional due to the vagueness of the ordinance.

    I submit further that this is unreasonable and that it — and that — that real — the people who should register will not — the only innocent people who did not intend to commit a crime again will register.

    So it has — so it does not serve the purpose for which it is intended, though it is an invasion upon privacy of the individual.

    And now, just a minute on the — I submit that Ms.Lambert was denied procedural due process first, by failure to expunge a record with which she had a right to.

    Second, by the false arrest as outlined in our brief, there was certainly a false arrest without a warrant, without a statement of reason or fact of arrest, without permitting me to talk to her and that she was only charged with crime to protect this false arrest.

    It is our reason why this crime was only brought nicely as to — was brought in this case to protect the false arrest.

    And the purpose of our law is not to justify police officers, make things easy before them.

    Our basic value to democracy is not the facilitation of prosecution or protection of police officers from false arrest.

    Now, I think their sentence was unreasonable and that trial court indicated throughout the trial such practice against her as to deny her due process.

    Particularly — and arbitrate some of the transcript on appeal and in the failure of the appellate court to give her as she requested the verbatim report of the trial under the forma pauperis provision which had been legislated during the pendency of these proceedings.

    Earl Warren:

    Mr. Grey.

    Philip E. Grey:

    Mr. Chief —

    Earl Warren:

    Mr. Grey, may I — may I suggest that the — at the outset — I don’t want to interrupt your argument, but at the outset would you mind stating the — the facts succinctly and — and the statutes on which we’re relying, and to — brings us up to this — this very — very important questions that are presented.

    Philip E. Grey:

    I shall.

    Earl Warren:

    Thank you.

    Philip E. Grey:

    May it please this Court.

    Some time in the 1930’s, the City of Los Angeles passed the ordinance here in question.

    In substance, it requires all persons who had previously been convicted of a felony whether in the State of California or elsewhere if the crime were punishable in California as a felony, certain types of misdemeanors to register within five days after they came to the City of Los Angeles intending to reside there.

    They also provided in that ordinance that persons who did not reside in the city, who, during a 30-day period came into the city more than five days should register if they have in fact been convicted of a felony.

    They also provided that persons who moved were required to give their notice or change of address.

    The statute defined convicted person as those who had been convicted, as I heretofore stated, of a felony in California or a crime which would have been punishable at — a felony if committed in the State of California.

    It also provided that persons who had accepted the provisions of the probation law and whose records were expunged upon a satisfactory showing of fulfilling their terms and conditions of probation were thereafter not deemed to be convicted persons so that they would not thereafter be required to register.

    They enacted another subdivision which enumerated certain specific types of crimes dealing with sex violations, rapes, assault with intent to commit rape, indecent exposure, delude and dissolute misdemeanor types of crimes.

    And they provided that those persons who came within that subdivision (d), even though their records had been expunged under the probation laws, were still deemed to be convicted persons so that there would be the requirement that they register in addition.

    This appellant, however, only comes under the first classification, a person who had been convicted of a felony.

    The facts as I see them are these.

    A verified complaint was filed in the municipal court of the Los Angeles judicial district, charging appellant with having violated subdivision (a) of Section 5239 of the Los Angeles Municipal Code, charging that she had in fact been convicted of two prior felonies, forgeries.

    That she had lived and remained in the City of Los Angeles for more than the five-day period.

    That her record of conviction had not been expunged and that she did not register as required by the ordinance.

    Earl Warren:

    You say two felonies?

    Were they two counts of —

    Philip E. Grey:

    No.

    As I understand the record, two separate case numbers.

    Earl Warren:

    Separate, so to speak.

    Philip E. Grey:

    Two separate numbers.

    Earl Warren:

    All right.

    But they were — were they at the same time, matter about the same time?

    Philip E. Grey:

    As far as the record indicates I think that they were very close.

    Earl Warren:

    Yes.

    Philip E. Grey:

    One was in May and one was in June or something like that.

    Very close.

    Hugo L. Black:

    Were those convictions in Los Angeles?

    Philip E. Grey:

    Yes.

    Hugo L. Black:

    Are people who live in Los Angeles, convicted in Los Angeles required to register also?

    Philip E. Grey:

    Yes.

    Hugo L. Black:

    I presume that a registration in the Court.

    I — I just wondered about that.

    Philip E. Grey:

    All persons convicted are required to register, all persons who live in the City of Los Angeles.

    The full sections of the Code are set forth in my appendix here.

    They did start on the day such as January 1st, 1921 to bring the thing — or these terms of the ordinance up-to-date.

    Those persons, who, subsequent to January 1st, 1921 had been convicted.

    In any event this complaint was filed.

    Appellant was arraigned.

    They chose to file a demurrer to the complaint.

    At that time constitutional issues were raised, amongst those that the statute was unconstitutional, that there was an abuse of the process of the Court, unlawful search and seizure.

    Of course at that time on the hearing of the demurrer only the constitutional issues were raised and considered, whether the ordinance on its face was an invalid police regulation, matters of evidence were not gone into.

    The demurrer was overruled.

    The matter — plea of not guilty was entered.

    The matter was set for trial.

    At the time of trial a jury was selected and before the trial actually got started I think the Court noticed that there was a mistake in the date.

    We called counsel to the bench and discussed the matter with them and granted leave to file an amended complaint.

    An amended complaint was thereafter filed correcting the date.

    I think that occurred on two occasions.

    Before the introduction of evidence, counsel for appellant again urged the constitutional grounds and also urged unreasonable searches and seizures, police brutality, and anything else that came to mind.

    The Court merely passing on the constitutionality of a statute overruled the objection to the introduction of evidence and the matter proceeded to trial on the second amended complaint.

    When witnesses for the people were called, they called the clerk of a Superior Court as I recall and introduced certified copies of these judgements of convictions of the felonies for forgery.

    They were introduced.

    Thereafter, witnesses were called to prove that the defendant or that the appellant was a resident of the City of Los Angeles.

    Upon the calling of the witness, it was stipulated that the appellant was a resident of the City of Los Angeles for the time charged in the complaint, in fact for seven and a half year period.

    Thereafter, when a witness was called to show that the records of the convictions of felonies had not been expunged, it was stipulated that that was true, that these records had not been expunged at the time of the arrest.

    When — I think each and everyone of the elements to that extent were offered to be proved by the people.

    There was the stipulation.

    The people then rested.

    Philip E. Grey:

    The defendant or appellant then offered evidence.

    Some of it was admitted, some was objected to.

    The net result was that she testified that she didn’t know whether or not she had been convicted of a felony because at the time of sentence she fainted.

    But she does — did recall reading of the charges and that she was present when the Court imposed the sentence.

    There was some cross-examination as to her hearing the charges, knowing that they were forgeries.

    These matters of course went to credibility of her knowledge of whether she was in fact convicted of a felony.

    Thereafter, the jury was orally instructed and they returned a verdict of guilt.

    After the jury returned its verdict, appellant made a motion for dismissal in the interest of justice.

    He raised the contention that the evidence was insufficient to sustain the charge.

    He also said that the defendant was only technically guilty of this offense, because she had a right to have her record expunged and I think at that time he asserted that she did actually have the record expunged.

    And he further contented that this was vindicating the action of two police officers.

    This motion was denied.

    Thereafter, a motion in arrest of judgement was made.

    In this motion, in arrest of judgement, it was urged that this statute was unconstitutional in violation of the spirit of the Federal Constitution and of the State Constitution.

    That it was an improper police regulation.

    That it misused in this particular case, voided the judgement.

    That it was for the purpose of vindicating the will of two officers and he at that time offered to prove the facts concerning the arrest.

    He offered at that time to show that she was stopped in the middle of the street.

    Her sleeves were rolled up.

    She was looked — they were looking for narcotics and some other reason, and that she was thereafter arrested, not being told why she was arrested.

    He offered to prove that the counsel was present at the time that the officers would not allow him to talk to the appellant, and that later these charges were then filed.

    I have pointed out in my brief and appended thereto the statute which authorizes a motion in arrest of judgement.

    That motion is addressed solely to the phase of the accusatory pleading, and at that time you may question the constitutionality of a statute.

    It is not the same as a motion for a new trial.

    It only goes to the validity of the accusatory pleading itself.

    That motion was then denied properly by the Court.

    An appeal — at that time the Court imposed sentence.

    The sentence was as follows, imposition of sentence suspended for three years which is a method of granting probation.

    The defendant placed on probation for that length — period of time on condition —

    William O. Douglas:

    Didn’t that — isn’t that require as a condition of payment of fine?

    Philip E. Grey:

    Yes.

    One of the conditions that she do not violate any other laws, health and moral laws that she pay a fine of $250.

    Then the appeal was taken under California procedure a defendant may appeal from an order denying a motion for a new trial, from a final judgement of conviction, from an order of granting or denying probation, or from an order made after judgement affecting substantial rights of a defendant.

    In this case, the appellants appealed from a final judgement of conviction and the briefs were filed in the appellate department, and it was pointed out by the respondent that in this case there was no final judgement of conviction but an order granting probation.

    We find the words that have been heretofore alluded to mentioned in the opinion of the appellate department, rather than dismiss the appeal they said we will consider this as properly before the Court.

    It was — the appeal was taken from a final judgement of conviction where there had been no final judgement of conviction entered and there is a right to appeal from that probationary order.

    So that then followed.

    The appellate department of the Superior Court is the Court of last resort in these cases and appeals from municipal and inferior courts.

    There —

    Felix Frankfurter:

    May I ask you — may I ask you one question?

    Philip E. Grey:

    Surely, sir.

    Felix Frankfurter:

    I know — I noted a case in the — in your report.

    The division in — in — under California — under this Court of Appeals, under this very ordinance — the conviction under this very ordinance was taken to the Court of Appeals —

    Philip E. Grey:

    Is that the (Inaudible) case that they mention?

    Felix Frankfurter:

    That’s in (Inaudible) case —

    Philip E. Grey:

    Yes.

    Felix Frankfurter:

    — not by way of direct appeal but on the habeas corpus.

    Now, if it goes — if you invoke habeas corpus on the ground the detention was fully lawless, that is, ultra vires without jurisdiction.

    You can go the Court of Appeals and then take it up —

    Philip E. Grey:

    To the Supreme Court.

    Felix Frankfurter:

    — to the Supreme Court of the State.

    Philip E. Grey:

    Yes, you can.

    Felix Frankfurter:

    And get a construction of this ordinance that way.

    Philip E. Grey:

    Yes.

    Felix Frankfurter:

    Is that right?

    Philip E. Grey:

    Yes, Your Honor.

    May I advice the Court about this (Inaudible) case.

    It was a similar situation as this.

    He was charged with being an ex-convict.

    Who had come into the City of Los Angeles and failed to register.

    Philip E. Grey:

    He was convicted.

    He took an appeal to the appellate department of the Superior Court.

    The judgement of conviction was affirmed.

    He was then remanded into this custody of the city jail.

    I can’t recall the length of time.

    While in jail he sued out a writ in the District Court of Appeal upon a new theory, not based upon the constitutionality of the statute but upon the form of the complaint itself.

    Felix Frankfurter:

    Well, I should think if his claim under the Constitution — under a constitutional claim is valid that would be a fortiori.

    Philip E. Grey:

    He did not raise the —

    Felix Frankfurter:

    The habeas corpus — unless your state is very different.

    Habeas corpus claim there is no legal basis for detention.

    Philip E. Grey:

    His legal basis was because of substance of a form of the complaint.

    Felix Frankfurter:

    That’s right.

    I understand it.

    Philip E. Grey:

    Rather than the constitutionality of the statute.

    Felix Frankfurter:

    Did you think habeas corpus wouldn’t?

    Philip E. Grey:

    No, it will.

    Felix Frankfurter:

    It wouldn’t issue if there’s no statute on which any conviction could be had?

    Philip E. Grey:

    It will issue.

    Felix Frankfurter:

    All right.

    And therefore, you could get — get these questions raised by habeas corpus to the Court of Appeals and then go up to the Supreme Court, is that right?

    Philip E. Grey:

    Yes, definitely.

    Yes, sir.

    Felix Frankfurter:

    All right.

    Philip E. Grey:

    Yes, sir.

    William J. Brennan, Jr.:

    Mr. Grey, what’s the proceeding in the appellate court?

    Is it a — where the appeal is entertained as an appeal from the conviction?

    Is it a new trial on the record or what is it?

    Philip E. Grey:

    No.

    No, it is a review of the record.

    William J. Brennan, Jr.:

    By which you mean what?Is it just a review of the points of law or is there a redetermination on the record of the fact or what?

    Philip E. Grey:

    It is a review of points of law, a completely appellate division.

    William J. Brennan, Jr.:

    And what did you have to do, assign error —

    Philip E. Grey:

    You may proceed.

    You must have a statement on appeal setting forth your grounds and your record, yes.

    Felix Frankfurter:

    I know.

    Philip E. Grey:

    And there is no trial —

    William J. Brennan, Jr.:

    And you’ll be heard only — you’ll be heard only on the points then raised, what, in your statement on appeal?

    Philip E. Grey:

    On your statement on appeal set forth in your grounds of appeal or pertinent to the proper review.

    On an appeal from a final judgment of conviction, all errors from the time of the trial through the conclusion are considered.

    On the appeal from your motion — order denying a motion for new trial, only those points urged on the motion are considered.

    William J. Brennan, Jr.:

    Well now — now, what precisely were raised here?

    Philip E. Grey:

    Similar grounds that are raised before this Court, constitutionality and so forth.

    Hugo L. Black:

    Were they — were they properly raised under California procedure?

    Philip E. Grey:

    Yes.

    Yes, they were.

    They were raised on the same fashion that we have before this Court.

    The brief was practically identically sent.

    Hugo L. Black:

    What — what I’m asking was, this Court might have one procedure and they might have another.

    Philip E. Grey:

    No.

    Hugo L. Black:

    As he — did he properly raise this constitutional point under California procedure?

    Philip E. Grey:

    Yes, he did.

    Hugo L. Black:

    As to what section?

    5239?

    Philip E. Grey:

    Yes, Your Honor.

    Yes, he raised them properly, and they were all considered.

    And I call the Court’s attention to the fact that only one sentence in that opinion is devoted to the constitutional question, and that sentence reads as follows, there is no merit to the claim that the ordinance is unconstitutional.

    The other matters were devoted primarily to the insufficiency of the evidence and the Court pointed out that everyone of the facts essential to the proper conviction of the charge before the Court were undisputedly shown in the record.

    Hugo L. Black:

    Where — where this has been raised properly in your state court and they have — this — this Court has denied them on the ground that it’s — that it is constitutional.

    Could he raise that same question under California procedure, under habeas corpus petition?

    Philip E. Grey:

    Yes, it —

    Hugo L. Black:

    It would not be barred by the former adjudication?

    Philip E. Grey:

    No, it would not.

    If the petitioner is in custody, habeas corpus is the remedy to pursue.

    The appellate department —

    Hugo L. Black:

    Even though it’s been denied here?

    Philip E. Grey:

    Oh, yes.

    Yes.

    Hugo L. Black:

    I presume that you somewhat to the fact that they’re not allowed to take this kind of case up to the Supreme Court —

    Philip E. Grey:

    That is true.

    Hugo L. Black:

    — in the first instance?

    Philip E. Grey:

    That’s true.

    The appellate department is — it is by the judicial council rules considered the court of last resort on direct appeals, both civil and criminal from municipal and other inferior courts.

    Another way of attacking that would be by a writ of prohibition.

    That has been the new theory of seeking out a writ to prohibit the Court from rendering a decision.

    Felix Frankfurter:

    Would you — would you start that at the — in your Supreme Court or the Court of Appeals?

    Philip E. Grey:

    In the District Court of Appeals primarily.

    William J. Brennan, Jr.:

    Mr. Grey, are you making any argument here that we ought not entertain this appeal because either habeas corpus or prohibition or some other method was not sought to obtain a determination under California Supreme Court or District Court of Appeals?

    Philip E. Grey:

    Oh, I don’t believe I can very well because she was not in custody at any time.

    She was released on bail pending the appeal, and the — there was only a fine — payment of a fine imposed rather than a jail sentence.

    Now, had the fine not been paid and the court revoked probation and then thereafter imposed a jail sentence, habeas corpus would have been available, yes.

    Felix Frankfurter:

    Well, habeas corpus isn’t very sticky about that.

    Persons in full — even a person who is allowed out on probation, habeas corpus may still — since the Court has control as it were, habeas corpus.

    Certainly, that objection doesn’t apply to prohibition.

    Philip E. Grey:

    No.

    No, it does not.

    We have felt that this is a proper police regulation, and I think that that trying to decipher the issues of this case, I think that is the sole question.

    Is this type of an ordinance constitutional?

    We feel that is it a — it is a reasonable police regulation.

    I have attempted to point out other registration ordinances wherein there has been a declaration that it isn’t a proper police regulation, the Alien Registration Act.

    The courts have said that the states in the dissenting opinion in this Hines versus Davidowitz appears that the courts indicate that the State is entitled to know who is present, where they are.

    Philip E. Grey:

    The Lobbyist Registration Act I have pointed to that in my brief.

    I have covered the waging business registration.

    I have also alluded to the Foreign Agents Registration Act, and some of the other city ordinances which require taxi cab drivers to register with the police department, those who sell newspapers.

    And the courts have consistently said the city is entitled to know so that they can keep track of those types of people.

    We feel that the ordinance does not require that any person give any information which is incriminated.

    The information sought is just, is he present in the city?

    Where does he live?

    Has he been convicted of a crime in the past?

    What were the natures of those crimes?

    They cannot form the basis of a new or subsequent crime because punishment has already been meted out.

    They are past and completed.

    Hugo L. Black:

    Do you consider that the challenge here raises the question as to those other requirement?

    Philip E. Grey:

    No, I think that the — this appeal properly before this Court goes to the one issue on the constitutionality as a reasonable police regulation.

    Hugo L. Black:

    Constitutionality of what?

    The requiring that they register or the information they’re supposed to give?

    Philip E. Grey:

    Well, I — as I gather this attack here is upon the statute.

    And the attack is so broad that it goes not only from the statute but to the complaint to the very sections which not are — that are not involved.

    Hugo L. Black:

    Can they register without giving this other information, being fingerprinted and the other requirements?

    Philip E. Grey:

    Well, I think it’s —

    Hugo L. Black:

    Is it possible to register without that?

    Philip E. Grey:

    The Sections require that they give their names and all aliases and all crimes that they have been convicted of.

    Thus far as to my knowledge no one has refused to divulge that information.

    Hugo L. Black:

    But can they register without it?

    That’s what I’m — is that a part of the registration?

    Philip E. Grey:

    That is a part of the registration.

    Hugo L. Black:

    They have to comply with in order to register?

    Philip E. Grey:

    Yes.

    Well, I think as this Court has indicated if there are any objectionable parts, that person could register to that extent and refuse to register as to the other, and they would still be technically complying with the ordinance and not in violation.

    But generally, the ordinance does require the disclosure.

    Hugo L. Black:

    I suppose to register though — I’m not sure but I suppose you have a form —

    Philip E. Grey:

    Yes, we do.

    Hugo L. Black:

    — they have to sign and everything —

    Philip E. Grey:

    Yes.

    Hugo L. Black:

    — have to be there.

    Philip E. Grey:

    That’s true.

    The form does require —

    Hugo L. Black:

    Can I ask you one other question about it.

    Philip E. Grey:

    Sure does imply.

    Hugo L. Black:

    Prohibition because that is inquired in here.

    Would she have to surrender herself in order to file a writ of prohibition?

    Philip E. Grey:

    No.

    Hugo L. Black:

    How — are you sure that can be done?

    Philip E. Grey:

    I know that it is being done, Your Honor.

    I know that the appellate —

    Hugo L. Black:

    Are there any decisions that hold it can be done?

    Philip E. Grey:

    Yes, I think there are.

    I know that a writ was sought in a recent case before the appellate department wherein they were going to assume jurisdiction over a similar type of situation on appeal from a probationary order rather than from a final judgement of conviction.

    A writ was sued out in the District Court of Appeals to prohibit the appellate department of the Superior Court from proceeding in an attempt to exceed their jurisdiction.

    And —

    Hugo L. Black:

    Suppose this case should be decided in favor of the city or on that ground or something of that kind.

    Are we to understand that she could without subjecting herself to going to jail or paying this $250 penalty, get the advantage of the — exactly what she is raising here by a writ of prohibition asking for one?

    Philip E. Grey:

    Well, at this time I don’t think there’s anything further for the Court to do.

    The Court is not exceeding its jurisdiction then.

    All orders have been made.

    Felix Frankfurter:

    But has she — has she considered nothing more for the Court to do or is there anything for her to do?

    Philip E. Grey:

    If she has paid her fine.

    No, there is none.

    Felix Frankfurter:

    Well, I mean then there’s nothing — there’s nothing left in the case.

    Is there a case?

    Philip E. Grey:

    At the —

    Felix Frankfurter:

    Neither, there must be a case and if there’s something left then there’s something left because of a claim that the Court — there is outstanding an order which exceeded the authority of the Court to issue.

    And if there is that and then you suggest prohibition.

    If there isn’t that, there is no case anyhow.

    Philip E. Grey:

    Well, from my understanding what — from what counsel has devised this Court she has already had her record expunged.

    I think the only thing remaining is the payment of the $200 fine as a condition of the order.

    That has been stayed, pending this — these various appeals.

    Felix Frankfurter:

    Well, is she still under duty to pay that?

    Philip E. Grey:

    $250.

    Felix Frankfurter:

    Well, then — and that — and she’s under duty only if the duty could be imposed?

    Philip E. Grey:

    That’s right.

    Hugo L. Black:

    And the question I asked you was could she seek a writ of prohibition without having to pay that $250 or go to jail in lieu of payment?

    Philip E. Grey:

    Well, there is no jail sentences yet.

    Hugo L. Black:

    If you don’t have any lieu —

    Philip E. Grey:

    No.

    Hugo L. Black:

    — provision —

    Philip E. Grey:

    This is at a — this is as I say condition of probation.

    The Court may thereafter revoke probation upon the failure to pay this $250 fine and impose sentence.

    Earl Warren:

    The Court could put her in jail any day that it wanted for a failure to —

    Philip E. Grey:

    Comply with —

    Earl Warren:

    — either to pay the fine or to comply with some other provision of the —

    Philip E. Grey:

    That’s right.

    Earl Warren:

    — of the probation, could he not?

    Philip E. Grey:

    Any time within the three-year period.

    Earl Warren:

    Yes.

    And that three-year —

    Philip E. Grey:

    Yes.

    Earl Warren:

    — period has not run.

    Philip E. Grey:

    That’s right.

    Earl Warren:

    And this is not the case in which the judgment was expunged?

    Philip E. Grey:

    No, it is not.

    Earl Warren:

    The judgment was expunged in the forgery case —

    Philip E. Grey:

    That’s right.

    Earl Warren:

    — which is the predicate for this action.

    Isn’t that right?

    Philip E. Grey:

    That is right.

    Felix Frankfurter:

    So there is an order of a court outstanding which is either valid or beyond the power of the Court.

    Is that right?

    Philip E. Grey:

    It’s true.

    Depending on —

    Felix Frankfurter:

    Would you be good enough to — I beg your pardon.

    Philip E. Grey:

    Surely, go ahead sir.

    Felix Frankfurter:

    No, you were about to say something.

    Philip E. Grey:

    No.

    I was just going to say that that is based upon this so-called attack on the Constitution or the ordinance.

    Felix Frankfurter:

    Yes.

    I understand that.

    That’s right.

    Would you be good enough just as a matter of curiosity or as a matter of enlightenment to state without — doesn’t take much time what the relation between the state statute and this ordinance is if any?

    Philip E. Grey:

    As I recall, the City of Los Angeles enacted this ordinance first because of the influx of persons known to have been convicted of serious crimes under their police power.

    Thereafter, the State of California examining all these sex violations that were taking place, feeling that if these persons were registered there would be a better protection for all other victims or persons in that category.

    The two sections do overlap to a slight degree.

    The state statute requires persons who come into the city to register with the sheriff, I believe.

    We’ll come into the county whereas the ordinance requires those coming into the city.

    So it — as a practical —

    Felix Frankfurter:

    But does it come of more roughly stating the same ground?

    Philip E. Grey:

    No.

    Felix Frankfurter:

    The substance?

    Philip E. Grey:

    Only so far as the sex —

    Felix Frankfurter:

    Sex.

    Philip E. Grey:

    — offenses are concerned.

    Felix Frankfurter:

    All right.

    I understand that.

    Philip E. Grey:

    The — the city ordinance is broader in that it covers the —

    Felix Frankfurter:

    But — but so far as the duty to register if you’re within the state statute, the scheme is the same, is it?

    Philip E. Grey:

    Yes.

    Felix Frankfurter:

    All right.

    Earl Warren:

    Well, isn’t — isn’t the — isn’t the theory of the — of the state act different, Mr. Grey?

    Doesn’t the — in the first place, doesn’t the — then the state act provide that that this will apply only to people who are convicted in the State of California?

    Philip E. Grey:

    It might.

    I don’t recall —

    Earl Warren:

    Well, is it in here?

    It is right here, any person who since the first day of July 1944 has been or is hereafter convicted in the State of California of the offense of so and so — and so and so.

    Philip E. Grey:

    I think it goes on a little further too does it not, Your Honor, and speak about —

    Earl Warren:

    It may.

    Philip E. Grey:

    — any offense which it committed or attempted in this State would have been punishable.

    Earl Warren:

    Yes, but — but it doesn’t apply to people who are convicted, let us say, in the State of Missouri or Kansas or any other state who comes there, does it?

    Philip E. Grey:

    Yes, I think so.

    Earl Warren:

    Does it, in another section?

    Philip E. Grey:

    Yes, sir.

    In that first paragraph, it goes down a little bit further than that.

    Earl Warren:

    Well, may I —

    Philip E. Grey:

    And —

    Earl Warren:

    I haven’t read it for some time.

    Philip E. Grey:

    See — it be very — after the words well for an institution codes or any person who has been since said date or is hereafter convicted in any other state of any offense which if committed or attempted in this State would have been punishable.

    So that they do overlap, and I think they do cover the same substance insofar as the sex offenses are concerned.

    Earl Warren:

    Yes.

    Philip E. Grey:

    Primarily.

    William J. Brennan, Jr.:

    Mr Grey, getting on the same question in the ordinance.

    Did I understand that looking at page 2 of your appendix, subdivision (d), those references are all to felonies that is under the Penal Code of California, 264, 265, 266 and so forth?

    Philip E. Grey:

    No, 26 — 647 (a) or subdivisions 1 or 2 of Section 3 (11) are misdemeanor.

    William J. Brennan, Jr.:

    Well, what I’m getting to — I’m looking at subdivision (d) at page 2 —

    Philip E. Grey:

    Yes.

    William O. Douglas:

    — of your appendix.

    Philip E. Grey:

    Yes.

    The first — the first group of numbers there are felony convictions.

    William J. Brennan, Jr.:

    Yes.

    And do I understand that the test of obligation to register is not whether in the — when the — the offenses committed outside the State, is not whether it was a misdemeanor or a felony or whatever classification it may have — is put under in the state of conviction?

    The test is whether in California it would have been a violation of one these sections?

    Philip E. Grey:

    That’s right.

    William J. Brennan, Jr.:

    Well is that to say, for example, an offense may use in extreme instance be disorderly person’s offense in some other State and yet if your code makes it a felony then he’s on notice that he has to register under this order?

    Philip E. Grey:

    That would be true if it were that type of an offense, if committed in the State of California.

    That is an extreme example however —

    William J. Brennan, Jr.:

    The event — well, it may be but I know in my own State be downgraded a lot of misdemeanors to disorderly person’s offenses, and I’m just wondering —

    Philip E. Grey:

    Well, may I give an — as an example.

    In some states, the taking of property of a value $20 is considered a felony, that would not require registration in California.

    It must be a property over $200.

    That is the interpretation.

    If the crime committed elsewhere had been committed in California, wouldn’t that constituted a felony in California.

    So your example of being disorderly conduct in another state wouldn’t necessarily be a felony in California.

    William J. Brennan, Jr.:

    No, but the person convicted in another state at his peril must know whether or not his offense is or isn’t a felony under the laws of the State of California.

    Philip E. Grey:

    Yes.

    William J. Brennan, Jr.:

    And if he doesn’t have that information or isn’t a lawyer enough to know whether it is or not, he may be subjected to conviction under this order.

    Philip E. Grey:

    I think, generally, it is the felony type of conviction in the other state that would subject the person to —

    William J. Brennan, Jr.:

    Well now —

    Philip E. Grey:

    — knowledge.

    William J. Brennan, Jr.:

    — for example, in my state we don’t know anything by named felony.

    Is there — it’s either a high misdemeanor, a misdemeanor or disorderly persons.

    No such thing as a felony.

    Philip E. Grey:

    Well, may I attempt to answer that in this fashion.

    I think this Court has said that persons are charged with knowledge of the provisions of the Selective Service Act, for instance.

    Philip E. Grey:

    It is the duty upon —

    William J. Brennan, Jr.:

    But it would be pretty — it would be pretty tough on the charge wouldn’t it to know that the Penal Code of California 264, 265, 286 or something covered as a felony, an offense which were commit — committed was nothing worst than the misdemeanor or a disorderly person.

    Philip E. Grey:

    That — that would be very extreme, Your Honor.

    It was usually the other type of situation where a person has been convicted of a felony in the other state that comes to California, thereafter is determined that if that crime would have been a felony in California.

    Earl Warren:

    Mr. Grey, do you have any idea how many people have registered in Los Angeles and what percentage of those who — who should register have registered?

    Philip E. Grey:

    I think that I can’t give you any figures.

    This Law Review Article or this seems to have secured data.

    We furnished data to this Pennsylvania University and when they were making this research.

    They rolled letters all over to try to find out.

    I have tried to get from the Police Department accurate records.

    It’s next to impossible to say.

    How are we to know how many ex-convicts are in the City of Los Angeles unless they’ve registered.

    Earl Warren:

    Well, you could know how many were registered?

    Philip E. Grey:

    Yes, I think this gives some figures —

    Earl Warren:

    How many would that be in —

    Philip E. Grey:

    This —

    Earl Warren:

    — your county?

    Philip E. Grey:

    — seems to indicate that — well, there may be some 6000 persons who have registered.

    Earl Warren:

    Since 1933?

    Philip E. Grey:

    Yes.

    Earl Warren:

    Could that be more than a very, very small fraction of the —

    Philip E. Grey:

    Population?

    Earl Warren:

    No, of the — yes, of your ex-convict population?

    Philip E. Grey:

    Well again, how are we going to base that when we don’t know how many persons are present, who have prior records from other states or elsewhere?

    Earl Warren:

    Well, I — I’m just a —

    Philip E. Grey:

    I think that I can a little —

    Earl Warren:

    Knowing the size — knowing the size of Los Angeles County itself and the number of people you send to the penitentiary each year and the number of people you’ve placed on probation for felony it seems to me to be infinitesimal.

    Philip E. Grey:

    I think it does serve a certain percentage.

    It does serve — serve a certain need that attempts to cover and does cover a small segment, no matter how small it does carry out the purpose for which it was passed.

    It provides a protection for the inhabitants of the known persons who are there.

    Earl Warren:

    I understood Mr. McMorris to say he had looked into that — that matter and he found that most of the arrest or a large percentage of them, police were — where arrest had been made as an afterthought, not — not where they were arrested for — on investigation for having violated the Act, but where they had been brought in for something else and it was disclosed at that time that they — that they had been in jail and then they charged them.

    Philip E. Grey:

    I think that would — was a very gratuitous statement because these records are confidential.

    I can’t go in and look at the records to find out how many people have registered, I don’t know.

    And I can say from my personal knowledge and experience, I know that this ordinance has been enforced in this fashion, not as described by appellant.

    Information has been brought to the city attorney on a request for an — on an application for a complaint.

    They will say, Mr. so and so whose record is as follows, showing a conviction of a felony in this State, that state, in the other state is now in the City of Los Angeles residing at such and such a place.

    He has lived there for so many years.

    We applied to the city — city attorney to issue a criminal complaint on which a warrant of arrest is based and thereafter we will go out and get him.

    They’re not always as indicated by counsel.

    So that it is next to impossible to answer those types of questions.

    In extreme cases, I would have to say yes, it has been done I suppose.

    But generally, we feel that in this instance every time appellant has attacked any of these provisions, it has been pointed out, it has been inept, it has been answered.

    Counsel alluded briefly to the appellate procedures.

    I don’t think that that has a place in this record because their state practices in state acts.

    It was pointed out that he didn’t have a proper appeal from the — an order of final judgment of conviction, the Court granted the hearing on the merits in any event.

    It was later pointed out that the oral instructions were not a part of the record.

    Thereafter, motions were made and are included in his record in an attempt to secure those things.

    There weren’t proper.

    We have felt throughout this proceeding that the criminal complaint that was filed was based upon a valid constitutional ordinance that the procedure was regular.

    There was a conviction duly had and that the ordinance should be upheld by this Court on that same ground.

    How does a sentence imposed in this case compare with sentences in other cases?

    Philip E. Grey:

    There again in some instances where we have had these things I know of my personal knowledge that a defendant who has been arrested has gone in and say, “Well, Your Honor, may we have a continuance for five days.

    I’m going to have my client register and we’ll come back and enter a plea or make some disposition.”

    Some cases has been suspended sentences.

    Others, there have been straight day sentences depending on each and every particular set of facts.

    In this case, counsel have said that this took four days to try, four days to present evidence to the Court showing and stipulating that the defendant had been convicted of prior felonies, had lived in the City of Los Angeles, had no record expunged, had failed to register.

    It took had four days to do that.

    This doesn’t strike you as an unusually heavy sentence of the statute?

    Philip E. Grey:

    The sentence itself, I don’t think is placing a person on probation.

    The imposition of a fine may be a little bit heavy but I think by virtue of the four-day trial, maybe the Court became a little early, that would be my personal opinion.

    Philip E. Grey:

    Unfortunately, the appellant must suffer for that.

    Stanley Reed:

    Mr. Grey, is there any way, based on your previous discussion of the procedural angle that the appellant here could take this case to the Supreme Court of — of California?

    Philip E. Grey:

    It would be by refusing to comply with the terms and conditions of probation being sentenced to city jail for violating her term — her probation then in custody applied for writ of habeas corpus.

    Stanley Reed:

    How about the prohibition rule, could she do that without (Inaudible)

    Philip E. Grey:

    She’d have to comply with the provisions in order to be out of custody —

    Charles E. Whittaker:

    Well, but —

    Philip E. Grey:

    — for the three-year period.

    Charles E. Whittaker:

    — it could not be sir an application for a prohibition against the issuance of execution on that fine.

    This is a fine that’s subject to execution.

    Philip E. Grey:

    Yes.

    Charles E. Whittaker:

    Wouldn’t that be a means of reaching it?

    Philip E. Grey:

    Well, as I’ve tried to point a moment ago, the Court has already — the only ministerial act would then be by the clerk to issue the execution for the payment of the fine.

    The Court has already acted.

    The Court has imposed this as a probationary order or condition.

    Felix Frankfurter:

    But the Court’s action isn’t exhausted by its action.

    It’s a — has continuing vitality in that — so long as it stands and nothing is done about it.

    This young woman is subject to — oversight by probation and the payment of this fine.

    Philip E. Grey:

    Well, then if the Court is not attempting to exceed its jurisdiction with a writ then lie.

    It is only where the Court is attempting to seek —

    Felix Frankfurter:

    Well, but that raises the question of constitutionality.

    If it’s unconstitutional, the statute is invalid and the Court has done something that has no legal validity, whatever.

    Philip E. Grey:

    Yes.

    Felix Frankfurter:

    It’s a piece of paper, is that right?

    Philip E. Grey:

    That’s right.

    Felix Frankfurter:

    That can’t be determined until it’s determined.

    Philip E. Grey:

    That’s right.

    Earl Warren:

    Mr. Grey, do I understand you that under our California procedure that where a person has appealed from the judgment of conviction and the highest appellate court has reviewed the question of constitutionality raised by him and has decided it adversely to him that he can thereafter go into the Court on the writ of prohibition and set aside that judgment?

    Philip E. Grey:

    No, not in habeas where the Court is about to exceed its jurisdiction before he has already made that determination.

    Earl Warren:

    Well, it has here made that determination —

    Philip E. Grey:

    Yes.

    Earl Warren:

    — because the — the question of constitutionality was raised on appeal according to — to your Court.

    The — the question of constitutionality was decided against the petitioner, it became final.

    Now, does our California procedure authorize reviewing that question of constitutionality again by prohibition?

    Philip E. Grey:

    Well, let me say that generally not but as Justice Frankfurter has put the point to me, if the Court is going to thereafter do something to carry out the terms of the original order which has been held to be valid, their District Court shall or may issue a writ to restrain that court from exceeding its jurisdiction.

    Earl Warren:

    Well, it may be very important in this case Mr. Grey because of — if this Court should decide that there — there is a state remedy that of prohibition it might cause — we send — send it back to the State of California and it would hardly be a fair — fair thing to do if when he got back there, we found that prohibition wasn’t the proper way to — to raise it.

    Philip E. Grey:

    In presenting the issue in that fashion, I would say that the only available remedy is by habeas corpus.

    Earl Warren:

    Yes.

    Felix Frankfurter:

    We have — we had a similar problem in a case coming from California.

    What’s the name of that, there’s a fight — filed — (Inaudible) was is it?

    Question of the power of reviewing the determination of — of insanity by the warden of a penitentiary and at that time the Attorney General or somebody speaking for him, wasn’t it?

    I think the Attorney General suggested that mandamus of prohibitions.

    Mandamus is a good — available remedy and acting on that representation being the purpose of the State by the Attorney General.

    This Court said, well there is relief in California.

    It has since turned out your Supreme Court has said that isn’t so.

    Philip E. Grey:

    Oh, I know just last year at the California Bar Association Convention, there was quite a discussion on this new and coming thing, this writ of prohibition and its uses.

    So that there — there might be a — hoping to stay, a state of confusion with it.

    It has in some instances been — I think in some — I have summarized the issues and I have fully covered those in my brief that I —

    Hugo L. Black:

    Did the Attorney General represent it thereto?

    Philip E. Grey:

    No, Your Honor.

    The — the state statute is not directly involved at all.

    The only implication that is made is that if an ordinance requiring registration is unconstitutional then the state statute should fall, and then all other states who have similar ordinances or statutes would suffer the same faith but the — the state statute is not here involved.

    The only one is municipal ordinance as charged, person having been convicted of felonies living in the City of Los Angeles whose record had not been expunged at the time of the filing of the complaint as charged, who did not register.

    Although, that is a reasonable —

    Hugo L. Black:

    Well, you wouldn’t have authority then to represent the views of the Attorney General —

    Philip E. Grey:

    No, I would not.

    Hugo L. Black:

    — along this question of her remedy in case she lost that here?

    Philip E. Grey:

    No.

    I would solely say that in representing the City of Los Angeles, I would be called upon to defend the actions of the municipal court judge before any District Court or the Supreme Court should mandamus or prohibition or habeas corpus be issued.

    Felix Frankfurter:

    But there’s a case in Supreme Court, Portnoy against the Superior Court by Chief Justice Gibson which shows how far the reach of your habeas corpus jurisdiction is to an outsider, an ignoramus like myself merely reading the word.

    I think it’s more dangerous or for me less confident for me to read the statute.

    Philip E. Grey:

    This has been —

    Felix Frankfurter:

    (Inaudible)

    Charles E. Whittaker:

    Mr. Grey, I — I still am not quite clear on this proposition.

    You stated a while ago that a — in answer to a question of mine that the issuance of execution on this $250 fine would call only for a — the rendition of a ministerial act by the clerk.

    Is it not true however that that judgment is the judgment of the Court?

    And is it not therefore one subject to prohibition that is the exudations of execution may be prohibited in an — by a writ of prohibition in the District Court of Appeals?

    Philip E. Grey:

    I believe not, Your Honor.

    This was an order granting probation to the appellant on certain conditions.

    One of the conditions being that she pay a fine of $250.

    Charles E. Whittaker:

    But that’s all over the board now.

    Philip E. Grey:

    Yes.

    Charles E. Whittaker:

    All that’s left is the judgment of the Court and execution can issue on it.

    Philip E. Grey:

    Well, the only thing that would happen if this appellant refuses to pay the $250 after the judgment becomes final —

    Charles E. Whittaker:

    Well, isn’t it final except to this field?

    Philip E. Grey:

    Yes.

    Charles E. Whittaker:

    And if — if this were —

    Philip E. Grey:

    But she has been granted a stay pending the outcome of —

    Charles E. Whittaker:

    Yes, but if that were off, execution could issue tomorrow?

    Philip E. Grey:

    Oh, then the Court would call the appellant before the Court and say —

    Charles E. Whittaker:

    Well, that’s one — that’s one way to do it.

    But is that the only way to do it?

    Couldn’t the execution issue on the judgment?

    Philip E. Grey:

    I don’t think and by virtue of — of this particular wording because since you are of liberty for three years on probation on condition that you pay us $250.

    If you don’t pay us, I may revoke this probation and sentence you to 180 days in jail if necessary.

    Charles E. Whittaker:

    In other words —

    Philip E. Grey:

    Then there would be a judgment entered, yes.

    Charles E. Whittaker:

    Do you take the position that no fine is yet imposed?

    Philip E. Grey:

    It is —

    Charles E. Whittaker:

    Maybe if there is a default in the conditions of prohibition.

    Philip E. Grey:

    The Court may modify probation completely.

    Philip E. Grey:

    The Court may say in view — by virtue of all these things that have transpired, by virtue of your position the Court will suspend imposition of sentence to terminate probation.

    Or the Court may say that you have willfully refused to comply with the order of this Court, I will revoke probation and impose a jail sentence.

    Felix Frankfurter:

    Well, it’s all the things you’ve mentioned, all these contingencies.

    Despite all those contingencies this is a final judgment for purposes of this Court —

    Philip E. Grey:

    Yes.

    Felix Frankfurter:

    — it would be strange indeed if it weren’t a final judgment —

    Philip E. Grey:

    Yes.

    Felix Frankfurter:

    — subject to prohibition which you indicate by your court.

    Philip E. Grey:

    Yes.

    Well, this — this proceeding, it is a final judgment.

    Felix Frankfurter:

    All right.

    Philip E. Grey:

    Thank you.

    Samuel Carter McMorris:

    I think I have one or two minutes to finally and briefly answer with two contentions.

    Starting with the last contention made, we submit that the calling these orders unconstitutional would not affect all the others, some are more recently drawn.

    Section 290, we’ve point out the distinction of Section 290, notice is given to the best extent possible to — potential to register.

    And this ordinance none whatsoever to any register.

    Now, point was made that because we took four days in court, the judge would justify.

    I hope we haven’t reached the point on our jurisprudence for a person who did not have all the time in court required by the facts of the case.

    For two days, the judge and I argued constitutional law and not the facts of the case.

    We submitted the facts of the case in about five minutes.

    For two days, the judge had to borrow — get law books just to understand the cases I was reading.

    Now, is the — if the power to be had — that they suffered the burden of that and just to (Inaudible).

    I have no doubt in my mind because thereafter the Court if we don’t pay — if we don’t pay the 250, you get six months in jail.

    Although, at the time of the trial was even required to register.

    There’s no doubt in my mind whatsoever she gets six months in jail.

    Now —

    Charles E. Whittaker:

    Would you please answer — I’m still troubled by this.

    And also Mr. Grey, if there is no fine existing out there now but there only maybe one and the probation is all over, what’s here?

    Samuel Carter McMorris:

    Mr. Justice Whittaker —

    Charles E. Whittaker:

    There’s no fine here, no probation here, what shall we act on?

    Samuel Carter McMorris:

    Mr. Justice Whittaker, if she doesn’t pay that $250, she’d go to jail tomorrow.

    It’s imposed now.

    Charles E. Whittaker:

    You wouldn’t — but — but according to counsel’s argument there may be a fine levied on her.

    There may not be, there is none now.

    Samuel Carter McMorris:

    At present, if she doesn’t pay $250, the Court and you noticed in my brief said if she doesn’t pay within 24 hours, she goes to jail.

    Well, that — that’s in my brief here.

    If she — it says she doesn’t pay me on — in (Inaudible).

    Charles E. Whittaker:

    If there is a fine now then it could be prohibited by an original writ in the Court of Appeals, wouldn’t it?

    Samuel Carter McMorris:

    Possibly, but I’m wondering —

    Charles E. Whittaker:

    And if there is none, then what’s here?

    Samuel Carter McMorris:

    Well, I’m wondering if — well, that we must take the extraordinary remedies in order to — in order to proceed with this Court or just the regular remedies of appeal.

    I would require to take the extraordinary remedy if available which I doubt before coming to this Court.

    Hugo L. Black:

    Or you could — you could thereby get the — get a ruling of your Supreme Court, could you not or could you —

    Samuel Carter McMorris:

    We possibly could but that’s a question of (Inaudible) in the second place, are we required?

    Hugo L. Black:

    You don’t know?

    Samuel Carter McMorris:

    The city attorney wasn’t quite sure.

    Earl Warren:

    Very well.