National Association for the Advancement of Colored People v. Alabama ex rel. Flowers – Oral Argument – March 24, 1964 (Part 1)

Media for National Association for the Advancement of Colored People v. Alabama ex rel. Flowers

Audio Transcription for Oral Argument – March 24, 1964 (Part 2) in National Association for the Advancement of Colored People v. Alabama ex rel. Flowers

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Earl Warren:

Number 169, National Association for the Advancement of Colored People, Petitioner, versus Alabama under relation of Richard M. Flowers, Attorney General.

Mr. Carter.

Robert L. Carter:

If the Court please.

This cause is here for the fourth time and what petitioner hopes at the final time.

On this occasion, the petitioner seeks to have a review of the judgment of the Supreme Court of Alabama which refused to decide on the merits, the validity of an injunction, a permanent injunction issued against the petitioner which in effect ousted it from the State.

We’re also seeking and asking this Court to decide this controversy on the merits because in view of the nature of the — the claims that petitioner is making and the protracted nature of the cause itself, we think that the issue ought to be settled and settled final.

The cause began in June 1, 1956 with the issuance of a temporary restraining order and injunction by the Circuit Court of Montgomery County in Alabama which barred the petitioner from operating, functioning or soliciting memberships in the State on — on — by virtue of a complaint which had been filed by the Attorney General.

The injunction was issued without notice and without hearing, as far as petitioner was concerned.

And the injunction not only barred and ousted the petitioner from the State but barred it from attempting to comply with the statutes of Alabama which purportedly were the basis upon which the complaint had been issued.

The burden of the complaint, the original complaint which was filed, was that petitioner was doing business and operating in Alabama without — as a foreign corporation without registering.

And that — in essence, I think it’s fair to say that the complaint really alleged that petitioner was in the business of — of doing things for — in the field of race relations, two of which were named, one, the support of the admission of Authurine Lucy to the University of Alabama and the other, the support of a boycott of the buses in — by Negroes in Montgomery on the — to attempt to have equal treatment for Negroes.

That the petitioner was in the business of race relations and that this was — was constituting irreparable injury to Alabama because it had not registered.

The first occasion on which this cause reached here was on a collateral matter, on the issue of — of a contempt.

At that point, the State ordered the petitioner to produce various things including the — the names and addresses of its members, petitioner refused with the judge in contempt, the cause reached here, this Court reversed in a decision which was handed down in June of 1958.

Cause came here a second time.

And the decision of this Court in June of 1959, when the Supreme Court of Alabama reaffirmed the judgment below, the judgment of contempt on the grounds that although petitioner could not be held to be in contempt for refusing to produce his membership list, it had not complied with other portions of the order.

This Court held that the matter had been adjudicated and presented here as if the only question before the Court was the question of the validity of the petitioner’s refusal to give up its membership list and that having considered that, that the question, the Alabama court could not, therefore, affirm on the grounds that there were other portions of the order which had not been complied with.

The Alabama Supreme Court on the second remand of this cause, held the cause without sending it down to the lower court for trial.

So the petitioner was frustrated in its attempt to secure a trial.

And in June of 1960, petitioner’s sought to have a trial of the issue in the United States District Court for the Middle District of Alabama.

That cause reached here in the October term 1961 and that time the — this Court granted the petition for writ certiorari and ordered the United States Court of Appeals for the Fifth Circuit to instruct the District Court to proceed with the trial of this cause unless a trial on the merits have been accorded by the petitioner by June — January the 2nd, 1962.

The Circuit Court, thereupon, granted petitioner a hearing on the merits in December 1961.

When the hearing was concluded on December the 29th, the temporary restraining order was made permanent.

In fact, there are some minor deviations but the substance was the same.

And an appeal was taken to the Supreme Court of Alabama, Supreme Court of Alabama took the view that petitioner had not complied with one of its rules of procedure that its argument section of its brief — brief was so at variance with Alabama’s procedure that it could not review the matter on the merits because various assignments of errors which were not related had been argued together and therefore, under — under the Alabama rules, that they argued together and one is without merit.

The Supreme Court indicated that it would not consider any of the assignments of error alleged and therefore, it —

Does the Circuit Court writing the opinion —

Robert L. Carter:

I beg your pardon, sir.

Does the Circuit Court writing the opinion and making the temporary restraining order a permanent injunction?

Robert L. Carter:

The Circuit Court nearly issued a decree.

Wrote no opinion?

Robert L. Carter:

It indicated that it would write an opinion later but it never — never took that opportunity.

Do you make any findings of fact?

Robert L. Carter:

The only finding that I would think that the Court could say was made was that it indicated that the — that the charges had been proved by the overwhelming weight of the evidence.

Yes, I read that.

There are no findings of fact as terms, I only understood that.

Robert L. Carter:

No, sir.

Now, we take the view here that the Alabama’s procedural ground in the Supreme Court of Alabama is mistaken.

One, we think that the deviations from the procedure that it now seeks to bar review on the merits of the petitioner, but deviations are such in Alabama procedure that we think that we can say to the Court with confidence that the parties from this are really a regular part of Alabama procedure.

In other words, that all the Alabama says that Rule 9 must be complied with which it relied on here to dismiss the — the brief without cause, without breaching the merits.

It has held in case after case, that even though the rules are not complied with, that the rules are merely directory, that they are not jurisdictional and that the Court will go to the merits of the cause and we have cited both in our petition and in our brief on the merits, a large number of cases which — in which Alabama has done this — this — it has followed this practice in many, many cases, so that our — our first point that this can’t obtain is the fact that we think the regular procedure of Alabama is in fact to go to the merits of the cause even — even assuming that there has been a violation of the rules.

We also urge the Court that the — the basis upon which the Supreme Court of Alabama refused to go to the merits of this cause is a really a triviality.

It’s at best a practice which is outmoded and a ritual.

We think that it is clear that with all of the many times that this case was before the Supreme Court of Alabama, that the brief and the cause itself, the Court was — was reasonably familiar with what the issues were and that it cannot be said that it did not know what petitioner was attempting to press.

So the — our theory is that under the rules of this Court that the basis upon which Alabama sought to bar review by this Court cannot be sustained.

We think, therefore, that the cause is here on the merits.

And we will now address our — we’ll now address myself to the merits of the cause which I think — we think is before the Court.

Can I ask a question that the — this is a brief question that the Alabama Supreme Court, at any point, until its opinion, the disposition of the case indicate that it was concerned about the brief?

Robert L. Carter:

That’s the basis upon which it — it dismissed.

I know but was there an argument or anything?

Was there any notification that the brief (Voice Overlap) —

Robert L. Carter:

Oh, I’m sorry, I’m sorry.

The State in the — before the Supreme Court of Alabama, the State did not raise the issue that we had not complied with the rules and in the argument before the Supreme Court of Alabama, no question was raised by — by that Court in the oral argument, that there had been a departure from the rules of the Court.

It was only in the opinion, when the written opinion that they came down the decision of the Court.

Yes, that was my question here.

Robert L. Carter:

Now, we, insofar as petitioner’s contention is in — in regard to the merits of the cause, we think that there is no evidentiary basis in this record upon which the judgment and decree ousting petitioner from the State of Alabama could — could possibly be sustained.

We suggest to the Court that there are two or three grounds which the — which had been alleged, which may arguably have a basis.

The first ground is that we did not comply with the foreign registration statute.

We concede that we did not.

The other grounds are that — that they have alleged and the only allegations that have been made is one that petitioner assisted an individual, Authurine Lucy, in legal counsel to attempt to secure her admission to the University of Alabama, we would think that that would be foreclosed as a basis for ouster under the decision of this Court in NAACP versus Button.

Robert L. Carter:

The question of our assistance to Martin Luther King and the Negroes in — in Montgomery, Alabama in their attempt to bring pressure to bear on the bus company to secure the end of discrimination in the seating and arrangements on the buses, we think that one, that this Court has held in Browder versus Gayle on — on the same issue that segregation in intrastate commerce assort to — to a state law is a violation of the Fourteenth Amendment.

And we think that even assuming, that the — there is any basis in that.

The — Dr. King was convicted of the charge under state law and the — his conviction was affirmed.

But our contention is that the giving of moral support, legal counsel cannot be a basis upon which the — the State of Alabama can justify an ouster.

In their amended complaint, which I think is on pages 14 and 15, the State sets forth a number of grounds alleging that petitioner made various false charges against state officials including the judiciary.

And whatever arguable merit that might have, we think that has been stripped away by this Court’s decision in New York Times Company versus Sullivan.

So that some of the charges that the — that were alleged, there was no or even attempt to introduce any evidence whatsoever to approve them.

The two basic charges I suppose, which are left and the two basic grounds are that the petitioner violated the injunction, that is that the — there is no injunction.

And although I don’t even see how that, a proof which we contend has not been proved but even proof of a violation of the original injunction, I don’t see how that can be utilized to support the validity of the original injunction in the first instance.

The second ground is, of course, as we say are — are our failure to register.

Now, let me take the first one.

The State, in the course of the testimony, its theory apparently was that the petitioner was operating in Alabama under another name.

There was another organization with the name association in it and the — the State took the view that we were operating in Alabama that we were the same as this organization.

But I think the Court will agree that in each and every instance and all the witnesses that were brought, that this charge was completely refuted and that there is no evidence brought by the — by the — the State on its own of any kind which indicates that this is so.

All the evidence, as a matter of fact, is to the contrary.

Every witness testified that, with the injunction issued as of June 1, 1956, that petitioner ceased operation and closed its — its offices and disbanded its branches and was no longer functioning in the State that the people who are in its paid staff were — were put on terminal pay, were either transferred or — or placed in some other functioned.

And there is no evidence here to show that we have violated the injunction in any — any degree.

Now, we contend that the registration statute, which we concede that we did not follow, is a venue on service of process statute only.

We think that, as we attempt to point out in our brief, that the purpose of this statute and the purpose under the law of — of Alabama, is to make foreign corporations amenable to the jurisdiction of the courts of the State.

So that in any controversy which occurs between the foreign corporation and Alabama citizens, that the Alabama citizens will not be without a remedy.

Potter Stewart:

Isn’t the — isn’t that question one for Alabama on the merits that is the meaning of the — of the registration statute, its construction?

Robert L. Carter:

Well —

Potter Stewart:

And this is something which the Supreme Court of Alabama has never — has never expressed its views on, as I gather.

Robert L. Carter:

Well —

Potter Stewart:

Because in this case, it — it decided your appeal for on — procedural on a — for procedural reasons because —

Robert L. Carter:

Yes, sir.

I — I, under ordinary circumstances, I would say, yes, but it seems to me that after looking at the — the history of this case and the erection of procedural barriers to reaching the merits of this cause, it seems to me that since Alabama — since there is no — as a matter of fact, reading the record, there was no attempt in the record to show — there was no — there was no need, as a matter of fact, to show that we have not complied with the registration statute because of the — we — we have — we admitted that in June of 1956.

Potter Stewart:

You admitted that you had not and you expressed your willingness to do so if —

Robert L. Carter:

That’s right.

Potter Stewart:

— if it applied, I understand that.

Robert L. Carter:

Yes, sir.

Potter Stewart:

But there’s never been an adjudication on the merits by the Supreme Court of Alabama.

Robert L. Carter:

But there has been an adjudication on the merits by the — by the lower court and this — then Supreme Court of Alabama, I would suggest to the Court, that by virtue of its past history in this will never have been reached adjudication on the merits, it always sought to avoid an adjudication on the merits, principally, I would suggest to the Court, for the reason that there is nothing on the merits upon which this — the validity of this injunction can be sustained.

Potter Stewart:

Well, you’re addressing yourself now to the construction of the Alabama registration statute.

Robert L. Carter:

Alright.

Potter Stewart:

And I’m simply suggesting that that question, that question is purely and solely exclusively a matter of state law.

Now, you also present — presented here in your briefs that federal constitutional questions which are very properly the business of this Court assuming that their —

Robert L. Carter:

Well, the only thing I can — can say on this is that the only basis upon which Alabama — Alabama — that this complaint can be utilized or sustained is the fact that we have not complied with the statute.

We’re suggesting, as a matter of fact, that in the statute, that there is no provision in the statute authorizing ouster that the — as a matter of fact, the statute of which has been setout in our — in our brief, accords to the Solicitor General a — to solicitor of the various counties, the right to proceed against persons who don’t comply and as a matter of fact, what the statute does do is to — for persons who do not comply or organizations who do not comply, it sets forth a specific penalty of $1000 and it seems to that sort.

We do think that having come into this case, having used equity, utilizing an injunction under the circumstances of the — of this case, in the use of this to — to oust us from the State that this — this does rise, in itself, a due process question which we think has been violated.

In other words, there is a remedy available to Alabama if — if Alabama wants to utilize it.

That as a matter of fact, what it has done in this case is to bar the petitioner from coming into the State and I think that under the decisions of this Court, this has really amounted to in effect, a violation of the petitioner’s and his members’ rights the freedom of association and rights of — other rights of the First Amendment which have been protected.

We think that what Alabama is doing or has attempted to do with this injunction is the very thing that this Court has held that could not be done by Virginia in — in a construction of a barrier statute that the Court had held could not be done by Florida in the — in the — in an investigation of — by legislative committee that the Court has held could not be done on the grounds of attempting to raise a revenue in Arkansas in Bates versus Little Rock or the application of a statute which had been passed to suppress the illegal organizations in Louisiana versus NAACP.

We think that what has happened here is that the Court — that the — Alabama is — is attempting to do indirectly what it cannot do directly and that what it also is attempting to do is to bar a review by this Court on the merits, by reaching decisions on procedural grounds.

In our view of, and I would indicate to the Court in our brief, we think that this state action that the injunction has no validity, that it does — it is in violation of constitutional rights that the use of this procedure is a violation of due process insofar as petitioner is concerned and that unless this Court in this case is prepared, if the Court agrees that the injunction on this record has no validity, unless this Court is prepared to issue a detailed decree which will afford petitioner relief in the right to operate in the State of Alabama, to resume operation in the State of Alabama without the necessity of the implementation of that decree by the Alabama court, we think that we are not mistaken to suggest that on the basis of the history of this case, that this cause will be here for the fifth time without its final resolution.

It’s for that reason we are urging the Court to review the record, the evidence and make a decision on the merits and to issue a detailed decree which would give support and protection to the right of petitioner to function and operate in the State of Alabama.

William J. Brennan, Jr.:

(Inaudible)

Robert L. Carter:

I think what I’m trying to say, Mr. Justice Brennan, is that it reversed and remanded this cause with — with the direction to — for proceedings not inconsistent with the Court’s opinion.

I raised a question as to whether this would be sufficient to give the — the petitioner protection and to allow petitioner to operate in the State.

For example, the first time the cause was here, it was reversed and sent back.

We urged at that time that the — for the Court to reach the merits, the Court said the merits were not here within a collateral matter but now having settled the collateral matter, the Court said, “We think that the Alabama will proceed to grant you a hearing on the merits.”

Alabama did not do that.

The Alabama held the decree and it’s attempted to erect another barrier which this Court — it does for the second time —

William J. Brennan, Jr.:

I understand your reasoning —

Robert L. Carter:

Yes, sir.

William J. Brennan, Jr.:

— my question is that — I don’t quite understand what you mean by detailed decree, which one is right?

Robert L. Carter:

Well, let — let me merely say this that if — if maybe the word is — the better word is explicit because what I really am trying to say to the Court is that merely a — if we have to move and operate on the mandate of this Court to the Supreme Court of Alabama, the Supreme Court of Alabama has dissented mandate down based upon this — this Court’s decision that we will, in terms of it being effectuated and in view of the fact that the Supreme Court of Alabama had not send its mandate down from this Court from — from — some — from August 1 of 1958 until after we had gone into the federal court at the — in July of 1960 — 1961.

William J. Brennan, Jr.:

But what would our decree say?

I’m still puzzled.

Robert L. Carter:

Well, I would want — I would suggest that the decree would say that — that the — to vacate the injunction — that the injunction has been issued and it’s — and it’s void and that pursuant to the decision of this Court that the petitioner — that there is no authority to bar petitioner from functioning in Alabama and that petitioner is entitled to file papers, registration papers with the supreme — with the Secretary of State of Alabama and to proceed operations and function — and functioning in the State without barriers by the — by the state authorities.

William J. Brennan, Jr.:

Do you recall if the Court said — had done anything like that?

Robert L. Carter:

No, sir.

William J. Brennan, Jr.:

(Inaudible)

Robert L. Carter:

No, sir.

I don’t recall in any situation where the Court has done this specifically but I’m requesting this extraordinary, what I think would be an extraordinary relief because of the nature of the problem.

William J. Brennan, Jr.:

If something like that may have been done (Inaudible) is it not?

Robert L. Carter:

I didn’t hear you, sir.

William J. Brennan, Jr.:

(Inaudible) something like that may have been done, it will continue the decision was it not, correct me if I’m wrong.

Robert L. Carter:

I don’t — I — I’m not familiar enough with it.

William J. Brennan, Jr.:

A long time ago.

Robert L. Carter:

But I — I am — I — I know — I’m suggesting this form of relief, if the Court please, because I — this will be in June of this year that’s — well, this case has been in litigation for eight years and I — I think that unless the Court acts to this extent or to some extent that we will — it will not come to a final conclusion.

(Inaudible)

Robert L. Carter:

We —

(Inaudible)

Robert L. Carter:

Well, when the case was up here last time, this Court ordered the — a hearing by the state court.

And if there were no hearing by the state courts by no later than January 2nd, the federal court want to proceed plus the fact that the federal court was ordered to maintain supervision to keep in touch with what was going on.

When the hearing was granted in the state court, we proceeded to give to the federal court a monthly, at its request, monthly reports of the status of the case.

When the Supreme Court of Alabama refused to — to hear this case on the merits or dismiss the case without going to the merits, we then went before the District Court with a complaint on the grounds that under the — under the order of this Court and in view of the manner in which the case had gone, that the District Court now should proceed to a hearing and to a disposition of the cause.

The District Court took the view that what it would be doing with the reviewing the — the decision of the Supreme Court of Alabama.

We filed — and that the only court that could do this was this Court.We filed a petition for writ of certiorari.

We filed an appeal to the United States Court of Appeals with a — with a request that it stay proceeding.

They’re appending the decision by this Court on our petition for writ of certiorari.

This Court granted the petition for writ of certiorari.

All of these — we recited all of these facts, if I’m not — if I’m not mistaken, in our petition for writ of certiorari in our brief.

The Court granted the petition for writ of certiorari and we are now — now before this Court.

(Inaudible)

Robert L. Carter:

Yes, sir.

We have —

(Inaudible)

Robert L. Carter:

We’ve asked that that be done.

Robert L. Carter:

Yes, but —

(Inaudible)

Robert L. Carter:

Well, let me — yes, I — I — what we — we didn’t know whether we — in terms of our own way to go we didn’t know which way to go and we — we thought that we had to go before the — the United States District Court prior to the, you know, in terms of the jurisdiction of this Court whether it would grant the petition.

And when it dismissed without it, we, therefore, had to file our notice of appeal in order to keep the action alive.

(Inaudible)

Robert L. Carter:

Yes, sir.

(Inaudible)

Robert L. Carter:

So that what we — yes, sir.

So that what we — the answer is yes that the — the proceedings are — are still alive before the Court.

Earl Warren:

Mr. Madison.

Gordon Madison:

Mr. Chief Justice and Honorable Members of the Court.

It’s been a number of different attorneys from Attorney General’s Office and the various cases that have come before this Court and other courts.

But my rule here shows a need to attempt to the State — to the Court what the State now conceives to be involved in this litigation that’s here.

First place, the State of Alabama doesn’t consider that the merits of this case are presented to this Court this time.

One of the contentions made by petitioner is that its activity in the State of Alabama is not such that brings it within the purview of the qualification statutes for foreign corporations.

As Mr. Justice Stewart inquired about a while ago, I have here the short notes that I made on the back of the little brief that there had been no State Supreme Court determination that petitioner corporation is subject to the foreign corporation qualifying statutes.

I was moved to have put that in there because it seldom allot to handle the case of the CIO of American State and Federal Employees Organizing Committee versus Windsor in which the state statutes which required, not required but did not allow state employees to belong to labor unions.

The labor union contended in that case which came to this Court and was decided that it was not a union within the meaning of those statutes.

And there, it was held in effect that state court had to make a determination of that matter if didn’t come within the statute where no federal constitutional questions were involved or provided.

Now, the second reason that I have here is that the case seems to me to present from a State standpoint a question of whether or not, the Supreme Court of Alabama has reasonably and not arbitrarily applied to each Supreme Court Rules of Practice and Procedure to the appellant in this case.

If it has so applied them, and I think this Court has a right to determine whether it has or not, if it has so applied those rules reasonably, then we do not concede that the Court have purport a federal question for decision.

And the result would be that the decision of the Supreme Court of Alabama, which stands as it now, is affirming the lower court decision.

If the Court in this investigation should find that the Rules and Procedure and Practices of the Supreme Court of Alabama have not been applied reasonably to petitioner in this case, then I assume that the Court — I say, assume — I — I presume, I put it that way, that the Court would reverse and remand the case to the Supreme Court of Alabama.

And if it thought it was necessary, although I — I don’t know of any instance in which it has been done at that level, might direct that court to proceed with the consideration of all the questions involved on the merits of the case within a reasonable period of time as it did the law of state court below.

Now, that I do not know because I am hoping that we will not reach that question and that the Court will find that there has been no unreasonable application of the Rules and Practices of the Supreme Court of Alabama.

Now, what rule and practice did the Supreme Court of Alabama applied the petition in this case?

In the first place, it considered petitioner’s brief in that Court.

It didn’t strike its brief.

It didn’t dismiss the case.

It didn’t affirm the case because it wasn’t a brief that was sufficient to the rule and practices of that Court.

Gordon Madison:

It considered the brief but it got to the point where that Court, the Supreme Court of Alabama said that you have placed five subdivisions in your brief and on the each, you have made joint assignments of error.

And if anyone of those joint assignments of error is bad, is not good on our practice and all other State, now as far as I know, certainly and that’s a good — good time back from our law schools some 40 years ago or maybe 39 to 40, we — we learned that there and as far as I can tell, it’s been the practice ever since I’ve been practicing law in the ever distinguished member of this Court who probably knows — still knows more about Alabama practice and I do it could say one way or the other buried himself.

But I know that we, in our actual practice, we’re careful not to group together a number of assignments of error we had impart a point.

We put it all there by itself.

The Court erred in a certain particular and argued that in detail rather than in group.

(Inaudible)

Gordon Madison:

Well, the rule itself does not say that, not specifically but the decisions of the Supreme Court of Alabama in interpreting the rule, I guess Your Honor, they have held it at least — I believe I think it’s for a period of 60 years and that —

(Inaudible)

Gordon Madison:

Well, I think what the — what the practice is that, as I just stated, where you have an assignment urged you want to insist upon, you set that assignment out of specifically and separated from the rest of them and argued in brief.

And now, when you begin to put several of them together, you run into the Court’s interpretation and I think it’s based possibly on convenience or necessity to the Court or the — whether the judge in this case said — justice in this case said not to have to search the entire record to find out the different types of rules that might apply.

He gave —

Potter Stewart:

I quite understand how this rule has anything to do with searching the entire record.

I didn’t understand that part at all, that part of the reasoning of the Supreme Court of Alabama.

Gordon Madison:

Do you mean what do — what the justice put in his opinion?

Potter Stewart:

Yes.

He said that if we didn’t enforce this rule over their powers to search the entire record, I’m not trying to quote him but I — the opinion and — and that we just don’t have the time to do that really.

I don’t see what this rule has to do with the — the time to search the entire record.

If — if the — if the arguments are made, what difference does it make, how they are grouped?

So far as the — whether or not the Court’s going to be required to search the record.

Gordon Madison:

Well, may I answer that this way, Your Honor, that the Supreme Court of Alabama has said, it does make a difference and has given its reason as to why it makes it different.

Potter Stewart:

What are — what are — what is the reason, what are the reasons?

Gordon Madison:

Well, I think it states in the opinion here, Your Honor.

Hugo L. Black:

(Inaudible) of the record on which the assignment is based?

Gordon Madison:

You mean does the rule require that, Your Honor?

Hugo L. Black:

Yes.

Gordon Madison:

Not that I know of.

Hugo L. Black:

I did intend you to (Inaudible) in connection with (Voice Overlap) —

Gordon Madison:

I don’t put my finger right on it there.

I cannot — I believe the answer to Mr. Justice Stewart’s question to either his or my satisfaction this time and before my time is up, I will attempt to do so.

Hugo L. Black:

May I ask you another question?

Gordon Madison:

Yes, sir.

Hugo L. Black:

Do they have to be written with a pen now or can they be written with a typewriter?

Gordon Madison:

The assignments of error?

Hugo L. Black:

The assignments of error.

Gordon Madison:

Oh, they’re typewritten.

Hugo L. Black:

Are they written on the back of the record or how (Voice Overlap) —

Gordon Madison:

They can be written both ways.

You can write them in the longhand and assign them on the back of — of the record or you can put them in with the typewriter.

Hugo L. Black:

You’re not required to give the — the object — assignment of certain evidence being introduced or not required to assign — set out the page on which that can be found.

Gordon Madison:

Oh, yes, you required to set out a page in your argument while you — your assignments of error where it occurred.

Hugo L. Black:

Well, is that (Voice Overlap) part —

Gordon Madison:

Where the rule in the period.

Hugo L. Black:

— the part of the assignment —

Gordon Madison:

The part of your assignments of error as I understand your point.

Hugo L. Black:

— has to give the page of the record?

Gordon Madison:

Of the record.

Hugo L. Black:

What you’re saying is that the Court has construed the rules as a whole as I gather it.

It means that if you argued ten assignments under one heading, the Court does not consider anyone of those assignments or else it consider one and need consider no more?

Gordon Madison:

If it finds one to be bad.

Hugo L. Black:

If it finds one to be bad.

Gordon Madison:

Yes, sir.

Hugo L. Black:

Suppose it finds one to be bad then what does it do?

Gordon Madison:

It does not consider the rest of the group assignments of error unless they’re related.

Hugo L. Black:

You mean, if — if it finds the assignment of error is not valid, it’s not meritorious, finds one, it doesn’t consider the other.

Gordon Madison:

Well, I don’t —

Hugo L. Black:

I gather —

Gordon Madison:

— clearly understand.

There maybe an assignment of error which is not a proper assignment of error.

There maybe an —

Hugo L. Black:

If they can —

Gordon Madison:

Alright.

Hugo L. Black:

— and bunched together, Court looks and finds that one of them — they’d overruled it.

Is it — what you’re saying, if the Court then is not required to look at any of the other nine assignments —

Gordon Madison:

You have —

Hugo L. Black:

— grouped together?

Gordon Madison:

— 10 errors, all of which have been properly assigned —

Hugo L. Black:

That’s right.

Gordon Madison:

— and then they are grouped together for argument and if anyone of the ten are bad, the Court does not consider the other.

Hugo L. Black:

Now, of course, that’s a rule that the Court doesn’t have to follow, isn’t it?

Gordon Madison:

No, I don’t know of instance which it has not —

Hugo L. Black:

Well, it wouldn’t — it would not bind itself so that it — no statute requires (Voice Overlap) —

Gordon Madison:

Well, I — I’d say the — about 150 cases in the brief which I have applied it and I don’t know of any case that —

Hugo L. Black:

Look by the brief, you have cited cases in which the Court has given that as its reason for deciding that particular case but has it ever said that there’s any rule that it can violate if it desires to that affect?

Gordon Madison:

Well, I — I don’t know of any.

I guess you could change its opinion just like this Court could.

Hugo L. Black:

Well, I’m not talking about changing its opinions, I’m talking about whether it has — they have written out no rule, as I understand it, that bars the Court in considering each of the assignments, although 10 are argued together.

Gordon Madison:

I know of no such rule.

Hugo L. Black:

No — no such rule.

Gordon Madison:

The only that I would say in reply to that, Your Honor, or not in reply to it but the — in — I’ve just simply say that it would — if it says that the 10 assignments of error are grouped together and that we find this one’s bad but we now changed the previous decisions and rules of this Court over a period of some 60 or 70, 75 years and now say that we will consider the others —

Hugo L. Black:

Now, that —

Gordon Madison:

— to take the opinion of the Court to it.

Hugo L. Black:

— that’s — that’s the question I’m asking you.

They may have said 50 or 60 — you may find 50 or 60 years that the case has been affirmed on that date or reversed on that date, which ever it is affirmed, but have you found in it that says the Court cannot, if it wants to look at each one separately, even though they’re argued together.

Gordon Madison:

No, sir.

I haven’t found one.

I haven’t looked one.

I don’t believe you will find one that would say that.

Hugo L. Black:

The Court cause — caused it.

It’s jusyt a rule of thumb that uses, is it not, in connection with the particular cases?

Gordon Madison:

Well, I think it has more dignity in the standing and if the — you call it a rule of thumb in — in our (Inaudible).

Hugo L. Black:

I recall the reference I’ve made to meet various crew of the Court, all of the assignments of error, very well indeed.

But what I’m getting at is if there’s anything in any of the opinion which a man can say the Court considered itself helpless to rule differently if it sees fit in that particular case.

Gordon Madison:

No, sir, I — I don’t — I don’t believe any Supreme Court — the State Supreme Court within its proper level or this Court within its — can — can be so bound.

It wouldn’t be supreme if it bound it with.

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

What page is it on, Your Honor?

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

Page — page what?

Arthur J. Goldberg:

38.

Gordon Madison:

38.

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

Oh, I think it’s 16th —

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

Well, on top of page 33A, appellant submits an Assignment of Error Number 5 that this denial was —

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

From the second?

Arthur J. Goldberg:

Yes.

Gordon Madison:

Well, the —

Arthur J. Goldberg:

Number 3.

Gordon Madison:

Number 3.

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

42A.

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

That’s my understanding of what is referred —

Arthur J. Goldberg:

The question (Inaudible)

Gordon Madison:

Your Honor, that’s bring back to the question of whether they’re argued in bulk or whether they’re argued separately.

The Court from the way they are assigned in this brief, the Supreme Court of Alabama has determined that it — they have been argued in bulk.

Now, Your Honors, in looking that, it may determine that they have not.

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

Now, I — I couldn’t say what’s that and in the Court’s decision whether it is number or what not.

It may be a separate argument in a separate paragraph.

We all might so determine.

I — I wouldn’t know but —

Arthur J. Goldberg:

(Inaudible)

Gordon Madison:

I — I put Assignment of Error Number 1 either as follows and that the Court erred in certain respect and I wouldn’t cover anything else up with it until I’d given out over my main point.

And when I’ve given out the things I really ordered and insist on, I might through four or five together and argue one of it to deal into my brief itself.

That’s the way I do it.

Arthur J. Goldberg:

Separate headings, is it not?

Gordon Madison:

Separate headings.

And I usually — in the state practice when I — I was practicing there, I recited the Assignment of Error Number 1 and quoted in the brief and then followed an argument said this argument relates to Assignment of Error Number 1.

Well, I don’t set that up as it’s motivating anybody to follow but that’s the way I did and I manage to keep in Court some error.

Earl Warren:

Did you raise — did you raise the question of the invalidity of this brief in the court below?

Gordon Madison:

No, sir.

Earl Warren:

Why?

Gordon Madison:

Well, Your Honor, the — the direction which the Supreme Court gave to the — the District Court to retain jurisdiction over this case and tried it, unless the state court finish and tried it by January the 2nd.

Again on the merits that I was not certain and not sure just where that supervision began and where it ended the District Court’s supervision over the handling of that case.

In other words, the question of delay or relaxity that I didn’t want to raise any questions about the brief and at this point, Your Honor, if you’ll permit me, I’ll — I’ll show one other thing for I don’t want to be in the position of waiving it, the petition in this case gave a cash bond on appeal from the — from the Circuit Court to the Supreme Court of Alabama.

Your Honors, specific decision of the Supreme Court of Alabama a cash bond is not sufficient.

The Court can give petitioner time to perfect it before submission of the case and have a proper bond.

I did not raise any either.

I call the attention to the Court the fact that cash bond had been given that I knew what their requirements were and left it at that point.

Potter Stewart:

I don’t quite understand.

What’s — what’s considered, that is in cash in Alabama, more value?

Gordon Madison:

Well, I — if Your Honor, it maybe in the collection when you run the judgment against the principle assures it on a bond, maybe one thing but how you’d run the judgment against the money, I don’t know but I do not hope to justify to this Court all of the rules of the Supreme Court of Alabama on all questions before it.

Gordon Madison:

I’ll just do the best that I can but some of them or some have been (Inaudible) on the merit.

William J. Brennan, Jr.:

Do you mean what was posted does not satisfy a state rule, is that it?

Gordon Madison:

The state court under the state statute which required the giving of a bond as a condition preceded to appeal —

William J. Brennan, Jr.:

Well, is that —

Gordon Madison:

— while the principle assures it on that bond, they gave cash bonds in this case.

William J. Brennan, Jr.:

Is that what suggested that this would have go back?

There maybe that basis for the Alabama Supreme Court and I think (Voice Overlap) —

Gordon Madison:

I — I do — I don’t assume.

The only thing I can say is that I did not raise it below.

Now, well, I can waive or give consent the jurisdiction of that Court, does nothing else.

William J. Brennan, Jr.:

But you’re not waiving it, are you?

Gordon Madison:

I’m not waiving it because we had one decision to go back for the Attorney General and whoever is with him at that time, failed to present in this Court what the one question of whether to produce a membership list.

Now, it doesn’t matter to me one way or another about that cash bond business.

It may be trivial.

It maybe — I’m concerned only in doing my job.

Byron R. White:

Mr. Madison, do you see — you suggested that there is nothing here on the merits at all that the — this case would dispose up on a procedural matter below and so there’s nothing here to be decided on the merits.

I wish you had look at — at the — in the opinion of your Court, the Supreme Court if it said, that’s on page 6A of the petition for certiorari, the Court says that Assignments of Error 2, 3, 4, 8 and 17 are argued together but then it says Numbers 2, 3 and 4 carrier — charge error in that the judgment and decree are contrary with the weight of the evidence and contrary to law and contrary to the evidence.

And they say, “We have held that this type of assignment is without merit and presents nothing for review.”

Now, is that a statement that — that we just don’t review evidentiary matters in this Court, we only review matters of law?

Gordon Madison:

No, sir.

I do not think so and I think you take on the law side.

Byron R. White:

What — what was wrong with those assignments of error.

Gordon Madison:

On that — all side of the Court, those types of matters are raised on motion for new trial and I assume by an application for rehearing in the — on every side of the Court.

But they are not matters which our state practice concedes to be appealable below with some other methods.

Byron R. White:

Alright, some — the Alabama Supreme Court has said that we will not review any evidentiary matters in this Court, is that right?

That’s why what that — what’s wrong with the contrary.

Gordon Madison:

No, sir.

I don’t think — I think they will review it if it’s properly assigned as an error.

It reviews error.

It reviews error which occurred in the trial of the case, some ruling of the Court on the introduction of evidence, some matter of that nature.

Byron R. White:

Well then, what’s wrong with an assignment which says the judgment is contrary to the weight of the evidence?

Now, what’s wrong — why won’t the Supreme Court of Alabama accept that assignment and decide it?

Gordon Madison:

The Supreme Court of Alabama will not accept it because it’s not in accordance with the practice of that Court and — and —

Byron R. White:

And what is that?

Gordon Madison:

— it’s not an assignment of — of error in the (Voice Overlap) —

Byron R. White:

Of the time which they will —

Gordon Madison:

— appealable —

Byron R. White:

— consider.

Gordon Madison:

— to be considered for that Court.

Byron R. White:

Alright, so that — so the matters as to the weight of the evidence are not reviewable in that Court.

Gordon Madison:

No, I will not say that, Your Honor, because they are — if they are properly raised in the court below.

Byron R. White:

But what’s wrong with the raising in that —

Gordon Madison:

Well, that —

Byron R. White:

— in this effect?

Gordon Madison:

— that time, what you’re speaking about that, has been — one of the assignments of error.

Byron R. White:

Exactly.

And they say it’s improper or they won’t consider it.

This is one of the errors which supposedly is — was — is improperly stated and it — and therefore, it infects all the rest of there that is argued with.

Gordon Madison:

Let me see if I can — let’s jump on one of the law side of the Court for instance.

If you had a question of the verdict being contrary to evidence, you raised that by motion for a new trial in the lower court.

Byron R. White:

Alright.

Gordon Madison:

The lower court rules on that then it is reviewable in the Supreme Court.

Byron R. White:

Well, what’s — what was wrong in the —

Gordon Madison:

I’m trying to say that that type of assignment of error is not originally made in the Supreme Court of Alabama.

Byron R. White:

But the Supreme Court of Alabama says we have repeatedly held that this type of assignment of error is without merit and presents nothing for review.

Gordon Madison:

I don’t think — well, I don’t know what it means by merit.

It is not — it hadn’t been assigned in such manners as to be considered —

Byron R. White:

If I am going to —

Gordon Madison:

— by the Supreme Court of Alabama.

Byron R. White:

— I’m going to get the Supreme Court of Alabama to review something on — review the evidence and certainly, it has the evidence support of verdict or support the judgment and I make that assignment, the judgment is contrary to the weight of the evidence.

Byron R. White:

Apparently — I — I can get no farther with it, the Supreme Court of Alabama, that’s the matter for the trial court.

We don’t review assignments of error like that, is that right?

Gordon Madison:

Well, suppose, Your Honor, that practice which he does as I understand it, in the Supreme Court of Alabama, in Alabama, generally, require for a consideration of that question which you just asked me about that you have to raise it by an application for rehearing in the lower court or you have to raise it by a motion for new trial —

Byron R. White:

But the court — court doesn’t say that.

Gordon Madison:

— in the lower court and if you do not, you cannot present it to the Supreme Court of Alabama for the first time only.

Byron R. White:

That is what they say.

That is what the Supreme Court of Alabama said.

Hugo L. Black:

(Inaudible)

Gordon Madison:

On the rehearing in — itself for —

Hugo L. Black:

What?

Gordon Madison:

Well —

Hugo L. Black:

They did arrange that.

They said the judgment decree contrary to the weight of the evidence or the questions by assessing.

Gordon Madison:

Yes, sir.

But don’t they go further and say that the application read — what does it review under that but —

Hugo L. Black:

That is a motion for rehearing filed January 8, 1962, Circuit Court of Montgomery County —

Gordon Madison:

Yes sir.

Hugo L. Black:

— in this case on page 212.

Gordon Madison:

Your Honor, the Supreme Court —

Hugo L. Black:

This way —

Gordon Madison:

— of Alabama —

Hugo L. Black:

— same way — there is the same way of both courts.

Byron R. White:

I’m just suggesting that the Supreme Court of Alabama has passed on a — on a matter which — which the petitioners have now brought here for review, namely, they are saying that there — there wasn’t enough evidence to support the — to support the judgment below.

Supreme Court of Alabama said, “Well, we just won’t even go into that because we don’t consider things like that in this Court.

We just don’t consider value and matters like that.”

At least it — it disposed to this assignment of error.

The assignment of error was that the decree is contrary to the weight of the evidence and contrary to the evidence in the law and the Supreme Court of Alabama says this — this assignment is without merit.

Now, what’s more — how much more ruling can you have under the time of the merit?

Gordon Madison:

Well, Your Honor, if I may try to point out again, it’s without merit as being an assignment of error.

I don’t think he has passed on the merits of what is contained in the assignments, if I may say it that way.

Byron R. White:

Well, they disposed of the assignment though.

Gordon Madison:

Well, that — that would — would be a big difference I think, Your Honor, in the passing on whether the evidence (Voice Overlap) —

Byron R. White:

— because the evidence can be (Inaudible) to raise the constitutional question and the Supreme Court of Alabama has, by disposing the assignment of error, given no consideration whatsoever with that.

Gordon Madison:

That’s where the case was disposed of.

Hugo L. Black:

If they did not pass by reason of error and cannot pass on it by reason of error then it’s before us that we have to consider it on the basis of the Court of Appeals on (Voice Overlap) since Alabama give no remedy.

Supposed it’s wrong, wholly wrong and it was not suppose — it wasn’t the evidence and the Supreme Court of Alabama decides to rule on in the highest court in the State passed on that by the court of — by the Circuit Court so that it will bring the record around, isn’t it?

Gordon Madison:

Well, Your Honor, if there is a way in which that particular point could have been properly raised and it was not done, would you have the same question on that if — if —

Hugo L. Black:

Yes, but it was raised in both places.

I can imagine if — if it was the case on the rule of every court in the United States if it’s not.

You don’t raise the question as to the weight of the evidence by saying it’s (Inaudible) what is supported by the weight of the evidence.

I can imagine that there’s been some rules adopted but that’s not a sufficient rule but if it is and the Court found it in the — the Supreme Court then that’s all of those facts on the judgment of the Court of Appeals, the highest court in the State to pass on it, doesn’t it?

Gordon Madison:

The — the court of —

Hugo L. Black:

The — the Circuit Court, Judge Jones.

Gordon Madison:

Yes, sir.

Hugo L. Black:

And they told him that he did — that he was wrong in the motion for rehearing because it’s contrary to the right weight of the evidence.

He overruled a motion for rehearing?

Gordon Madison:

Yes.

Hugo L. Black:

But he passed it.

Now, the court of — the Supreme Court has not passed on it you say as I — I understood you to say that in response to Justice White, suppose they haven’t then we must look to the judgment from that point if the court — Circuit Court is being the highest court in which the question could be decided.

Gordon Madison:

I — I certainly cannot answer that for simple reason, I don’t know.

I say this that I was on the impression and still on the impression and as you find that the Supreme Court of Alabama has applied some of its rules or procedures and practice which it should not have that it did on it in an arbitrary or in a reasonable manner to this petitioner that you —

Byron R. White:

But we don’t have to — all we have to — there’s no — even if you — even if it were accepted that the Supreme Court of Alabama doesn’t need to consider Assignment 3 because Assignment 2 is no good.

If, nevertheless, the plaintiffs’ Assignment 2 is no good has passed upon it, that is something that has been passed upon and that happens to be the precise issue, one of the concise issue that’s brought here.

Gordon Madison:

Now, let me say this.

If the — if this Court is going to pass upon the merits of this entire litigation here without — it never have been passed on the Supreme Court of Alabama, I — it doesn’t matter as far — so far as I’m concern but there were three volume and 1347 pages in the Supreme Court of Alabama that filed that.

In this brief here, I mean in this record here, there are only 231.

I wish the Court would have before it the entire record which was filed in the Supreme Court of Alabama with considerations.

Hugo L. Black:

It’s accessible, isn’t it?

It can be brought here?

Gordon Madison:

Yes, sir, it can be brought here.

Gordon Madison:

And then I would like to have an opportunity or the — the Attorney General would also like to have an opportunity to know specific, if he can do so.

Earl Warren:

To do what?

Gordon Madison:

To know specifically, if you will take in the case on the merits so we can brief the merits specifically for you and submit our brief on those forms.

Byron R. White:

But my point was — didn’t go to the saying at all with taking any judgment because all the merits were here.

I was trying to find out if any of the merits were here and one of the point is that — is whether the evidence supports the judgment.

It seems to me that either that issue was here either because the Supreme Court of Alabama passed on it or because they refused to pass on it and therefore, we review that issue as passed upon by the Court of Appeals —

Gordon Madison:

Well, I —

Byron R. White:

— Circuit Court.

Gordon Madison:

Even if that would be the correct, Your Honor —

Byron R. White:

— (Voice Overlap) one of the issues I must say.

Gordon Madison:

If that — if that is the correct position of the Court even if it is then it should have the entire with those — before the Court attempt to pass on itself.

There have been — if there are any (Inaudible) have any argument left have been rather have been put away or shut away but if any question that I might be able to answer which the Court wishes to ask me, I will be glad to endeavor to do it.

Byron R. White:

Oh, I would — I certainly would welcome any other explanation for what the Supreme Court of Alabama meant, when it said that — that these Assignments of Error 2, 3 and 4 are without merit and are not proper assignments of error, what did it mean by — by that?

This was — this was his excuse, for example, for — for not going on to consider Error 17 because they found 2, 3 and 4, with which 17 was argued.

They found 2, 3 and 4 were without merits, and therefore, they shouldn’t consider 17.

Now, what did it mean by 2, 3 and 4 without merits?

That — that’s certainly a judgment upon the — upon the assignment of error.

Gordon Madison:

It means, Your Honor, as I understand it that the — without merit — 2, 3 and 4 without merit because one of the joint assignments of error has been proven to be bad.

Byron R. White:

No, that’s — the argument was that 2, 3 and 4 are no good and therefore, they can’t consider 17.

That’s what they held.

Gordon Madison:

I didn’t understand it that way.

William J. Brennan, Jr.:

That’s at page 7A I suggest is the matter, applying the same rule of 2 to 4 or 5 (Voice Overlap) —

Gordon Madison:

What — which are you —

William J. Brennan, Jr.:

Page 7A of the cert — I’m sorry, or the petition for certiorari.

Gordon Madison:

And at which page are you now?

William J. Brennan, Jr.:

Page 7A.

That first full paragraph.

Applying the same rule is heretofore by in the previous subsections, none of the assignments of error will be considered.

That goes back to the joinder of 2, 3, 4, 8 and 17 having held in 2, 3 and 4 without merit and that being a deficient assignment.

They, therefore, say the 8 and 17 joined that 2, 3 and 4 cannot be considered.

William J. Brennan, Jr.:

Am I correct in reading it that way?

Gordon Madison:

Now — yes, sir, I see and object to what you’re speaking about and say that we have repeatedly held this type of assignment of error without the merit presents nothing for review.

I assume that those cases they cite there will give some reason why the appellate court considered them to be without — and I haven’t read those cases recently to — to be able to explain to Your Honors’ satisfaction what the whole — if they’ve given the explanation and I don’t want to attempt to do it.

I — I’d be glad for an opportunity to analyze the brief —

Byron R. White:

On the face — on the face of it, it would seem they’re saying that although the — the — an assignment is made if the evidence is not sufficient.

We either say it was or we won’t even consider it and saying one of the two things that have to be.

Gordon Madison:

Now, Your Honor asked me a question way back there.

I — we — we’ve all lost it in the discussion.

It may have been — you’ve been satisfied to other discussion but I don’t know what that — Your Honor —

Potter Stewart:

That question, I think, had to do with the — with the connection between this rule of the Supreme Court of Alabama i.e. that if various assignment of — assignments of error are grouped together and if its found that one is not validly — is not a valid one and the Supreme Court of Alabama will not consider any of the others under that group, that is this basic rule, wasn’t it?

Gordon Madison:

Yes (Voice Overlap) —

Potter Stewart:

Alright.

Now, my question was what — why — why does that — why would — why would this regard of that rule require the Supreme Court to do all their searching of the record that they talk about in this opinion.

That’s — that’s the only thing I didn’t understand.

I didn’t understand the connection between the — between that rule and the — and the undesirability for requiring them to search the record in every case.

I understand — I understand that.

I understand why — why a reviewing court can’t be asked to — shouldn’t be required to in every case without any help from counsel to get out of the record and go to it alone on their own motion but I don’t see what this rule has to do with preventing that verdict.

That — that was my only question.

I didn’t understand the chain of reasoning of the opinion in the Supreme Court of Alabama.

Gordon Madison:

Well, I’m — I’m going to try to answer Your Honor’s question this way with the — with the deepest respect for this Court and the Supreme Court of Alabama too.

It is most difficult sometimes for me out here to give an explanation as to why a court did a certain thing on its reasons for.

Sometimes I know and sometimes I do not.

Thank you.

Earl Warren:

Just — just about time for adjourning if you — you’re going to have rebuttal.