Louisiana ex rel. Gremillion v. NAACP

PETITIONER:Louisiana ex rel. Gremillion
RESPONDENT:NAACP
LOCATION:Mapp’s Residence

DOCKET NO.: 294
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 366 US 293 (1961)
ARGUED: Apr 26, 1961
DECIDED: May 22, 1961

Facts of the case

Question

  • Oral Argument – April 26, 1961 (Part 1)
  • Audio Transcription for Oral Argument – April 26, 1961 (Part 1) in Louisiana ex rel. Gremillion v. NAACP

    Audio Transcription for Oral Argument – April 26, 1961 (Part 2) in Louisiana ex rel. Gremillion v. NAACP

    Robert L.carter:

    — to the Court what had occurred in the case.

    And I think that I got as far as indicating that the action which had been brought under the 1924 law in the state court had been declared void, at least the injunction issue.

    You will note that the — the statute which is set out in the appendix in the appellants’ brief on page — setting out at page 43 and 44 that the District Attorneys are permitted to bring action against various organizations that violate the law.

    During the period, therefore, while the injunction in 1956 had been declared void, the various organizations and affiliates of the NAACP in Louisiana were fearful to function without filing a list because of Section 404.

    Therefore, some of them decided that in order to function at least at that point, one of them decided that in order to function, it would file a membership — it would file a list of — of members.

    Now, that organization that did that was in 1956 was the New Orleans branch.

    After 1958 or 1957, I think a few more organizations filed a list of their members, but it — as Mr. Schuler indicated only 11 of 65.

    The rest of the organizations and affiliates of the — of the NAACP in Louisiana were not functioning and were — were not operating at all.

    In 1958, the second statute, which is before the Court, the affidavit statute was enacted.

    When it was enacted, we then brought suit in the federal court attacking the constitutionality of the new statute requiring the affidavit and the old statute on the grounds that they violated due process, equal protection and the First Amendment rights, insofar as they are included in the — in the Due Process of Fourteenth Amendment.

    That was answered, the Attorney General answered there and the case, nothing occurred until sometime in 1959 when the Attorney General then went into the state court and it secured an injunction against the functioning and operation of the — of the organization on the grounds that it had not complied either with the 1924 law or with the 1958 law.

    At that point, we sought to go into the federal court on the grounds that this was a — an interference with the jurisdiction of the federal court and we sought an injunction to restrain the — the Attorney General from proceeding any further, since that came out, it was pending before the federal court and the federal court could handle and dispose of the whole case.

    It was then that the federal court consolidated the two matters and had a hearing on this case.

    Now, if you will note the — the order on the hearing indicates that the — one of the things was that any information, evidence was to be by disposition.

    That’s set out on page 129 of the record.

    And the federal court apparently was concerned about the fact that how many organizations had filed membership list and how many prosecutions had been taken by the Attorney General and specifically asked the Attorney General to give information as to that.

    And you’ll note that on page 1 — 130, the — and 129, the Attorney General indicates that he is unable to say how many prosecutions have been brought under the Act, this is since 1924.

    And he is also unable to indicate how many of the organizations are affected.

    Earl Warren:

    You say that’s on page 130?

    Robert L.carter:

    I think so, Your Honor.

    Earl Warren:

    Both?

    Robert L.carter:

    I think I’m right, Your Honor.

    Earl Warren:

    I get it.

    No, it’s on 129.

    Robert L.carter:

    Yes.

    Yes, ‘ on 129.

    Now, the affidavits which we think in the evidence we have indicated, we have affidavits which show that the — and the most graphic illustration of this, I think, is the affidavit at page 119, showing clearly that there had been a loss of members — a great loss of members, a loss in units and a loss in funds.

    For —

    Earl Warren:

    Before you get to that, may I ask —

    Robert L.carter:

    Yes.

    Earl Warren:

    — if there’s anything in the — in the record to indicate that this statement of the Attorney General to the effect that it was impossible to determine from the records in his office, a number of names of defendants as which the Attorney General has brought action under that Act to us, was because there were so many of them or because there were none or — or what?

    And —

    Robert L.carter:

    What —

    Earl Warren:

    — is there anything in the record to indicate what the number is?

    Robert L.carter:

    The — the only thing I can say Mr. Chief Justice is that he was specifically asked by the court to bring specific information as to how many people, how many organizations have you prosecuted?

    Now, he’s — the information he indicates is that we cannot determine that.

    And I — I — the only thing I can construe from that is that there is no — that he is unable to say anything other than the NAACP that — that he has brought in the action against any other organization.

    Certainly, there is no evidence.

    Let me put it this way more positively.

    There is no evidence of any action being brought against any organization except — except the appellees.

    And there’s no that — that there is no evidence in the record for that at all.

    Earl Warren:

    Have you ever heard of any other prosecutions or so?

    Robert L.carter:

    No, sir.

    Earl Warren:

    Any evidence.

    Robert L.carter:

    No, sir.

    Now, there is also the — the affidavits which are set out on pages — indications at pages 60, 118, 122 and 125 for example, indicate that these specific organizations since the 1956, when the action was — was brought had declined in members.

    They’ve lost teachers and so forth.

    So that I think that the facts — although these facts are in — are controverted, that is their affidavits presented by the — the defendant, showing that the — that they were not these kinds of reprisals and that there were — it was not harmful for the organization to submit a membership list.

    Still, I think that to weigh on the evidence as a whole that the court below had ample evidence in the — in the newspaper reports and so forth, to indicate that this — to — to believe that this was a fact.

    Now, I must say that insofar as the question that Mr. Schuler has brought here about the — in answer to a question from Mr. Justice Frankfurter about the — the District Court rules.

    That is that an objection being made to the fact that the — the evidence had to be presented was required to be presented in affidavit form that this is the first time that this question has been raised.

    It seems to me that as far as I — the record indicates that after the temporary injunction was issued or rather before that there’s no evidence in the record for either party, even we or they, objected to the requirement that this matter be presented in affidavit form.

    William J. Brennan, Jr.:

    (Inaudible)

    Robert L.carter:

    Yes, sir.

    It’s a formal order that it is but there’s no — there’s no evidence —

    William J. Brennan, Jr.:

    (Inaudible)

    Robert L.carter:

    Yes, sir.

    William J. Brennan, Jr.:

    (Inaudible)

    Robert L.carter:

    That’s right.

    Felix Frankfurter:

    Were you at the trial or did you — were you counsel in the case?

    Robert L.carter:

    Yes, sir.

    Felix Frankfurter:

    I — maybe I got the wrong impression.

    I’m — I’m afraid I did, but I got the impression that Mr. Schuler indicated that he thought they were bound by the local rules.

    I’ve looked up the rules of that court.

    There is no such a requirement, but my attention has been called to the Rules of Civil Procedure and I should think neither the local rules, nor the Rules of Civil Procedure bind the District Court to try a temporary injunction.

    This was not a restraining order, it’s a temporary injunction.

    Nor does it even require among restraining orders, just authorizes.

    For this, the District Judge freeze the hearing of oral testimony, if necessary.

    Now, what I want to know is whether at any time the State felt that by being so bound that is if they must — that to prove that the — the issue is to be determined on affidavits whether they indicated, that this doesn’t enable them to sufficiently to undermine the allegations of affidavits or the assertions of affidavits.

    Robert L.carter:

    Well, I have not —

    Felix Frankfurter:

    And if we have a record here, what — what do say to this, Mr. Carter?

    If in fact, dealing with this suit for a temporary injunction on affidavit precludes the proper exploitation, the proper exposition of the issues by affidavit.

    Then that’s a mutilated way of having a case come up.

    Robert L.carter:

    Well, let me — let — let me try to answer it this way, Mr. Justice Frankfurter.

    I — the — it seems to be the practice in that particular court in Louisiana to try these kinds of cases by an — in an affidavit form.

    I — this is — seems to be the practice of the court on a temporary restraining order —

    William J. Brennan, Jr.:

    (Inaudible)

    Robert L.carter:

    — affirming into —

    William J. Brennan, Jr.:

    (Inaudible)

    Robert L.carter:

    Well, it’s the practice of that court, the Eastern — Eastern District, every time I’ve been there — well, this has been what’s occurred.

    Now, after the temporary restraining order was issued and the hearings were postponed several times in order to permit the State to get additional evidence and testimonies, after a temporary restraining order was issued or a temporary injunction was issued, the State could have, it seems to me, have indicated to the court that we do not believe that this is an appropriate way for us to determine this very crucial issue.

    And therefore, before there is a permanent injunction in this matter, we would want to have eye witnesses and testimony from persons to go into the question as to whether in fact what has been alleged here in the affidavit form was correct.

    Felix Frankfurter:

    The case is here merely on a decree of a temporary injunction.

    Robert L.carter:

    That’s right, sir.

    That’s right.

    Now, this was not done.

    We of course — we did not appeal and the State appealed and brought the matter here.

    Now, there is nothing to show that the District Court if it had been apprised to the fact that this would — there would be some question in respect to the validity of its order by virtue of the — of the — the — of the State not being able to prove its case or to probe the issues, that the District Court would not have changed its practice and indicated if they had been — this issue had been raised.

    That they — they should have — would’ve been able to abort oral testimony.

    Felix Frankfurter:

    Mr. Carter, there’s a — does a corporate injunction automatically enter if this is affirmed?

    Robert L.carter:

    If — if this is affirmed, it would seem to me that if this is affirmed on a temporary — in a temporary restraining order, a temporary injunction that the defendant still have the opportunity since they have appealed it on a temporary injunction to go back to the — to the District Court and indicate before a permanent orders issued that we want to do what they say they now wish to do.

    I don’t think that they are precluded from that even if this judgment is affirmed at this time.

    Now, I think that insofar as my own feeling is concerned that if we get to the merits of the case, that is on the membership list I saw it in facts, it seems to me that this case is controlled by the Alabama case and by the case from Little Rock.

    So now, I think —

    William J. Brennan, Jr.:

    If it is, then that — that suggest the unconstitutionality on their face of both the statutes, doesn’t it?

    Robert L.carter:

    Well, we did not come here raising an issue or go in the court below raising the issue that these statutes were unconstitutional on the effect — on their face, although I think they are.

    We didn’t raise it because what occurred was that we were concerned about the statute requiring us as an organization, to file a membership list and it’s an impact on us.

    And therefore, we asserted the unconstitutionality of the statute as it was applied to us.

    Now — so that the larger — larger issue was — as far as the — both the State and we are concerned, I don’t believe it’s before the Court.

    William J. Brennan, Jr.:

    Well, is this is why you suggest then the State if there were an affirmance here, might still have a final hearing?

    Robert L.carter:

    Yes, sir.

    Yes sir, because we have not gone to this, the — the — as I understand the judgment below, the judgment below does not hold that this statute — that this 1924 law is just — is — is bad completely.

    It holds that the law is bad insofar as it requires this organization to file membership list and that the 1958 law is bad insofar as it requires the organization to file the affidavit.

    Now, we think that — as I say I have a personal opinion.

    The statute is unconstitutional on its face, but we did not raise it and I don’t think it’s the precedent before the Court.

    Insofar as the 1958 law was passed, I — is enacted — in our judgment, this goes against all the rules of — of due process.

    The — an individual, a member of the organization — in a local organization, an officer is required to file an affidavit as to somebody else’s act and he is punished if in fact what someone else has done over whom the State has no control, if he isn’t indicated something that’s incorrect.

    Now, one final point and I only make this because the appellants have raised it in their brief on several occasions and Mr. Schuler raised it here.

    There seems to be some feeling in the — by the State that the 1924 Act could’ve been interpreted as applying to us as being applied to officers.

    I like to point out to the Court that it doesn’t seem to me unless the court below would require to rewrite the law, that it could pick and choose.

    There is nothing in this Act.

    The Act says that the membership — a list of members and officers shall be filed.

    The — there’s no separation here with respect to anything.

    And what the District Court held was that the act could not be applied to the — this organization.

    Now, what — what I gather, the State is apparently arguing is that the District Court could have rewritten the law and have therefore state the part of it and said that the law with — could be required to apply to officers.

    But I don’t think that that can be done here unless the — the District Court goes into the business of becoming the legislature.

    So this — for this reason, we submit that the judgment below is we think, correct and it should be affirmed.

    John M. Harlan II:

    I’d like to ask you a question on this.

    Were the depositions that are — appear on the record, were they read before the District Court on the hearings of the temporary injunction?

    Robert L.carter:

    They were submitted.

    John M. Harlan II:

    So they were before the Court?

    Robert L.carter:

    Oh yes, sir.

    They were everything that’s in this record here was before the Court.

    They were before the Court, the depositions, the — the affidavits and the depositions were before the Court.

    John M. Harlan II:

    And there was no request by the State that further — opportunity for further depositions should be taken?

    Robert L.carter:

    No, sir.

    And the matter was postponed.

    I — if I’m not mistaken at the State’s request on — on one or two occasions that there were no — no additional requests to postpone the position of this — asked by State.

    Earl Warren:

    Mr. Schuler.

    Mr. Culligan.

    M.e.culligan:

    Mr. Chief Justice and Associate Justices.

    And I’d to first, express the regret by our Attorney General for not being here today.

    He just wasn’t able to be here and he is one of the plaintiffs or defendants in both of these consolidated cases.

    The — person that I’d like to call the attention of the Court is that Act 2 of 1924 is not a dead letter statute and was never so considered in the State of Louisiana.

    It has never been in a position of being an innocuous destitute since 1924 to date.

    In 1950, in the State of Louisiana, all of our statutes were revised under legislative mandate by the Louisiana Law Institute which is our official body, the very good features of this statute, the deterring effect that it had and cause increase in tranquility in our State among everybody was so well recognized that it was put in back to the revised statutes under its present title of Title 12, Section 401 to 409.

    Insofar as prosecutions under the statute, I know personally of no criminal prosecutions or I’ve been in the Attorney General’s Office for 20 years.

    I’ve never heard of any criminal prosecutions under this statute either of a member of the NAACP, the Ku Klux Klan, the St. Vincent de Paul or anybody else.

    I do know as a matter of my own personal knowledge — I may be going out of the record, but I’m only trying to answer and be informative to the Courts.

    Of my own personal knowledge, every organization that came under the provisions of this Act in the City of New Orleans that ever called our office in New Orleans was well told to comply with the Act regardless of who they are.

    NAACP, big brother fraternities at the colleges, current teachers’ organizations, American Legion, veterans of farmers, everybody was told to comply with the Act.

    Now —

    Earl Warren:

    Have they generally complied?

    M.e.culligan:

    Yes, up until these recent suits.

    Now, I’ll show you as is submitted in the brief of my honorable opponents.

    They will show you that in 1950 on page 3 of their brief, their brief somewhat contradicts their own positions.

    On page 5 of their brief, evidence disclosed in the 1950 and 1951, no organization had filed.

    In 1952, 1953, 1954 and 1955, only a few filed.

    Now again, Mr. Chief Justice, I think you asked this question and I’m answering it from their brief.

    Approximately 1000 such lists were filed in 1956.

    M.e.culligan:

    So there must have been 1000 organizations in our State that complied with 1956, 2000 in 1957, 1000 in 1958.

    Now, the way the statute is written, you have to file this list no — no earlier than December the 15th and no later than December the 31st, which accounts for that drop of 500 in 1959, because the whole year had not yet been completed and there was a no-necessity and no-requirement for a filing.

    Some organizations do file late.

    Now, again, reading from their own brief, “A total of 12 NAACP affiliates,” and that’s born out by the record, “filed a list of members with the Secretary of State in 1957.”

    That’s after this suit was filed back on March 1st, 1956.

    They’re not scared of anything.

    There’s no fear of reprisals.

    They’re still filing lists, if Your Honors please.

    They’re basing this that the whole thing is on the fear of reprisals, a fear of prosecution.

    There was no such fear in their minds at all.

    All these came up after 1958, after the NAACP placed this Alabama case.

    And also I think, Mr. Justice Frankfurter, asked the question as to whether there was any announcement.

    You will find the affidavit of our present Attorney General on page 133 of the record that the petition is herein, any branches affiliated therewith, are the sole organizations in the entire State that have failed and refused to comply with the law after being advised that it was necessary to so do.

    There was no contradiction in this record if that affirmed the positive statement of a public official who was supposed to be in his doing his duty.

    There was absolutely no contradiction why affidavit or otherwise.

    In addition, I think Mr. Justice Harlan asked a question if there was any reason given for what you might term a reactivation of this Act.

    There could be plenty of reasons for that, if Your Honors please.

    Right after the Brown case in Louisiana, there was plenty of talk.

    That again is not in the record, but I’m only mentioning that in answer to the question that was prepotently to Mr. Schuler.

    There was plenty of talk all over the State of the reactivation of the Ku Klux Klan.

    That if you don’t make the other points filed, why should we file?

    Now, as a result of that when the Attorney General called on the Ku Klux Klan, there gained as you’ll see from the affidavit of the Attorney General, went out of business.

    And all we’re trying to do in the statute is keep peace and tranquility.

    We’re not trying to do anything else.

    We’re not having the exposure of a member just for the sake of exposure.

    I think our legislature is doing a proper thing.

    I think out of the police power of our State, our legislature absolutely not only has the right but the duty to require all of these organizations to come out in the open and say who they are.

    It is true that when they do that, it might have an adverse effect on certain of their membership.

    There’s no question about that.

    I think in one of the decisions sometime ago, it has caused the attention, pardon, Your Honors, that in certain organizations men are very proud to show their membership, I belong to no fraternal orders and admire them all.

    M.e.culligan:

    I’ve got a wonderful place and friends in the Masons and in the Knights of Columbus.

    They wear their buttons on their lapel.

    They are proud of their organization.

    They are not afraid of reprisals.

    I’m not afraid of my religion as a reprisal or my politics.

    Earl Warren:

    But do they — do they require them to —

    M.e.culligan:

    Yes.

    Earl Warren:

    It’s true what you say but does every — every —

    M.e.culligan:

    You will find —

    Earl Warren:

    — Masonic Lodge, every — every Knights of Columbus lodge to file under this?

    M.e.culligan:

    No, sir.

    I don’t think they do because the Knights of Columbus generally are considered, although there is an opinion of the Attorney General back in 1926, if I remember correct, sir.

    When the statute have first been passed on an inquiry filed by the St. Vincent de Paul organization, which is a charitable organization of the Catholic Church.

    That they did tell the St. Vincent de Paul organization which was prior to my present working for the Attorney General, they told them that they had a file.

    Now, whether the Masons and the Knights of Columbus have filed that they are not, I don’t know, sir.

    Because I’ve never examined the list of the particular organizations that they have filed, I wouldn’t be able to tell you whether the — the — either the Knights of Columbus (Inaudible) or the different Masonic Lodges throughout our State have filed.

    Earl Warren:

    Do labor unions file, Mr. Culligan?

    M.e.culligan:

    No, sir.

    They’re exempted from the Act.

    Earl Warren:

    They’re exempted.

    M.e.culligan:

    They’re exempted from the Act because this only applies to fraternal, social and literary societies.

    Earl Warren:

    I see.

    In other words, it has nothing to do with the — I’d say with either academic or political discussions.

    The only type of registration we have in Louisiana on the politics is of course the standard registration as to whether you’re a Republican, Democrat, or unaffiliated, in order to participate in party primers and the only other — only other thing that I have to — have my name displayed to the public is a member of the Bar Association.

    I don’t belong to any other organizations.

    Now, insofar as the law is concerned in the case, I like to submit this.

    That the finding of fact, getting back to the rules of the — of the Eastern District of Louisiana or the practice I should say of the Eastern District of Louisiana, you will find that in the motion for the new trial, I think the very first paragraph, the motion for the new trial tells the Court — we don’t think — we don’t think that their evaluation of those affidavits was correct and we did ask for a new trial.

    I don’t know how else we could ask for it except by way of a motion for a new trial.

    That in the light of the evidence introduced, both by the plaintiffs and the defendant, the court erroneously concluded that the members of the NAACP were intimidated or coerced economically or otherwise, as a result of their names being published as members of the NAACP.

    John M. Harlan II:

    What page are you reading, counsel?

    M.e.culligan:

    Page 183, sir of the motion for the new trial.

    Earl Warren:

    Well do you — do you particularly challenge the findings of the Court in your brief.

    I noticed in the index that there are three subheadings.

    I don’t see it under any of the — those.

    I noticed that you do show some of the evidence of the State in there, but do you directly challenge the findings of the District Court?

    M.e.culligan:

    Of the fact, yes.

    Earl Warren:

    You do.

    M.e.culligan:

    But that I don’t say it directly in the brief.

    Earl Warren:

    I beg your pardon?

    M.e.culligan:

    I just don’t say it directly in the brief.

    If we admitted to the findings sir, we couldn’t be even in this Court.

    Earl Warren:

    No, but you’re —

    M.e.culligan:

    There was no way in the world that after this affidavit is filed by NAACP stating that there was a drop in membership.

    Without the membership list which is the whole crux of this whole lawsuit.

    Without the membership list, how could we deny it?

    We don’t know, there’s no way us — for us knowing and they refused to give it to us.

    So it would be a useless, a vain and useless proposition to try to do anything about that.

    Felix Frankfurter:

    On the other hand — on the other hand, how are they to establish discrimination or coercive consequences for the importance of this Act and against them, except by allegations and human testimony?

    M.e.culligan:

    That’s right, sir.

    In the same way, we — we’re in the same situation.

    Felix Frankfurter:

    And now — and — and if — if their claim is well founded, then you of course, wouldn’t require them to obey the law which they say operates coercively against them by making the very disclosures would bring — which would bring about those consequences.

    M.e.culligan:

    We say that our evidence, just I showed, that it was not used coercively against them.

    It applies equally and has been applied equally to everybody’s — it’s had the same situation in the State of Louisiana.

    Felix Frankfurter:

    Well, but that presupposes that — that the situation as to all organizations is the same in the feeling and the attitudes and the relationships of everybody in Louisiana, doesn’t it?

    M.e.culligan:

    Yes, that it —

    Felix Frankfurter:

    Well — well, can you say that?

    Can you say that people feel the same way throughout every group of people?

    M.e.culligan:

    I would say that certain groups feel that way about certain other groups.

    Yes sir, even racial groups and political groups and religious groups.

    In our State, we haven’t formed even geographical groups.

    M.e.culligan:

    In other words, I don’t like to make personal references, but when I’m out in a country parish, I don’t like to say I’m from the parish of Orleans.

    I say my wife is from St.Gabriel, Louisiana because I would not be probably accepted near as well.

    Now, that’s just maybe a place in a little local prejudices but that is absolutely a fact.

    Felix Frankfurter:

    But there may be a difference in the kind of publicity of exploitations of different biases or inclinations.

    M.e.culligan:

    Yes, sir.

    That’s possible in all — all types of human endeavor.

    Felix Frankfurter:

    Well, on that concept that some other organizations might not make out of the case.

    If then, Mr. Schuler and I — suppose you agree, it is relevant — it is a relevant issue or a factor in the ultimate issue that a particular of the enforcement of a particular law operates with unfair adversity against the particular group.

    That may happen in the community, may it not?

    M.e.culligan:

    It could be.

    Felix Frankfurter:

    So that you can’t say — I think there was a Frenchman who said, “There’s no greater inequality than the equality of unequals.”

    M.e.culligan:

    Yes, but I say that their very argument, sir, is answered in their own brief.

    Felix Frankfurter:

    What was that answer?

    M.e.culligan:

    By saying that in 1956, right after this suit was filed, they had so many members.

    It almost doubled right in the City of New Orleans where it was given page after page on the front pages of publicity.

    It doubled in 1957.

    Felix Frankfurter:

    Well, maybe there’s an — accession of great courage during that particular period.

    M.e.culligan:

    Well, maybe that’s what the NAACP stands for.

    It maybe a national —

    Felix Frankfurter:

    Well, but — but the —

    M.e.culligan:

    — association for courageous people.

    Felix Frankfurter:

    But — but the first (Inaudible) [Laughter] —

    M.e.culligan:

    It might be for cowardly people too.

    Felix Frankfurter:

    But the per curiam says the opposite.

    M.e.culligan:

    Yes, sir.

    I can say it — it’s debatable point, yes, sir.

    Felix Frankfurter:

    Pardon me?

    M.e.culligan:

    It’s strictly a debatable point, yes sir.

    Felix Frankfurter:

    And what are we to do in the per curiam when there come three judges make this kind of a finding except — except in the way in which I’ve indicated to Mr. Schuler that you say it was unfair to be not to be able to disprove the basis on which they operated.

    M.e.culligan:

    Well, I think that this Court has pledged right that this is an erroneous finding of fact to overrule the District Court.

    Felix Frankfurter:

    Oh, yes.

    It has that, but in order —

    M.e.culligan:

    And we’re saying that —

    Felix Frankfurter:

    — to find that it’s erroneous, we must go to the record.

    M.e.culligan:

    Yes, and —

    Felix Frankfurter:

    The record doesn’t show it.

    M.e.culligan:

    And that’s why we’re saying that.

    We — we say that the record does show that it’s an erroneous finding of fact.

    Felix Frankfurter:

    Well now, specifically, would you be good enough to — to point out where the statement in this per curiam that the total membership in Louisiana has declined from 13,000 to 6000 is contradicted in the record.

    M.e.culligan:

    We couldn’t do it sir, because we don’t have a list of the membership, so we have no knowledge.

    Felix Frankfurter:

    To which I suggest that you were asking them to produce the very thing which they claim, if they did produce, would make the offense of which they complained.

    M.e.culligan:

    That’s coercible, but f they put handcuffs on me, I can’t — I can’t use my hands.

    And they’ve got the handcuffs on me the minute that they filed a suit by refusing to get a membership list.

    Felix Frankfurter:

    And what is your answer to that dilemma, while this case has been (Inaudible)?

    M.e.culligan:

    I don’t know, sir.

    Frankly, that’s why I am here today.

    I’m trying to find the answer.

    Earl Warren:

    Well —

    M.e.culligan:

    If we knew the answer —

    Earl Warren:

    — let’s assume instead —

    M.e.culligan:

    — we’d certainly comply —

    Earl Warren:

    — on the other —

    M.e.culligan:

    — and try to help out to keep peace and tranquility in our State any manner, shape or form that we can do it.

    That’s all we are here for and nothing else.

    Earl Warren:

    Well, isn’t the shoe on the other foot when they are unable to find out whether there has even been any prosecution against anyone ever in the State under this Act when your — when your Secretary of State certifies that — that he cannot produce any such information?

    M.e.culligan:

    Well, if those raised, were not be with the Secretary of State, sir.

    In other words, we have 64 parishes in the State.

    Earl Warren:

    Yes, I know.

    But it’s the Attorney General’s Office and he was in charge of the litigation.

    M.e.culligan:

    Sir?

    Earl Warren:

    It — the Attorney General was in charge of the litigation, wasn’t he?

    M.e.culligan:

    Yes.

    Earl Warren:

    And he was the one who’d brought it, then —

    M.e.culligan:

    The Attorney —

    Earl Warren:

    — then he could’ve testified if there had been any.

    Do you know if there has been any other —

    M.e.culligan:

    I’m telling you as far as I know, sir.

    There has never been a criminal prosecution, nor do I know of any civil suit or civil prosecution that’s ever been filed other than these particular cases —

    Earl Warren:

    Yes.

    M.e.culligan:

    — which involved the NAACP.

    Earl Warren:

    Yes.

    M.e.culligan:

    That the other organizations as is shown by the affidavit of the Attorney General, whenever requested to do so, they did it.

    So there was nobody else to file the suit against.

    That’s the only answer I can make to that, sir.

    Earl Warren:

    Fair enough.

    M.e.culligan:

    I appreciate being here today.

    And if I said anything that might minimize the shape or form to offend Your Honors, I apologize.

    Earl Warren:

    You have not, sir.