National Association for the Advancement of Colored People v. Button – Oral Reargument – October 09, 1962

Media for National Association for the Advancement of Colored People v. Button

Audio Transcription for Oral Argument – November 08, 1961 in National Association for the Advancement of Colored People v. Button

Audio Transcription for Oral Reargument – October 09, 1962 in National Association for the Advancement of Colored People v. Button

Earl Warren:

Number 5, National Association for the Advancement of Colored People, Petitioner, versus Frederick T. Gray, Attorney General of Virginia.

Mr. Carter.

Robert L. Carter:

Your Honor, on reargument, if I may, I think that it would be helpful for the Court to have a full statement of the facts in this case.

The one statute which is before the Court which we allege and contend is unconstitutional, was a Virginia statute which was enacted with the extra session in 1956 and which statute amended the Virginia bars to running and capping to include the — an organization which retained an attorney or compensated an attorney in — or attorneys in matters in which he’d have no pecuniary right or liability and which also made it a crime for organizations to solicit business for attorneys.

The statute subjected the attorneys who were involved to disbarment and made the activities on the part of the organization a misdemeanor.

On the theory that this statute was a part of a package of anti NAACP laws and was in fact aimed at the petitioner and designed to run the petitioner out of business and in fact to a part of the Virginia’s massive resistance plan to school — to school desegregation, we brought proceedings in the federal court, attacking this statute and four others.

As the Court knows, three of these statutes were construed by the federal court in NAACP versus Patty.

Appeal was brought to this Court and this — the judgment below was set aside on the application of the doctrine of federal abstention.

I might add that since that time, those statutes had been in the Virginia state courts and they have — a decision by the City Court of Richmond has struck those statutes down.

Two of the statutes, one of which is presently here was declared by the federal court in NAACP versus Patty to be too obscure for authoritative construction and understanding.

Are those cases that you referred to that struck down by the City Court of a — going up on appeal?

Robert L. Carter:

Yes sir.

I would think so Your Honor —

Well, I mean —

Robert L. Carter:

— state statute.

I don’t — I — no appeal has been taken because the matter is very recent but I would anticipate that they would do that.

Unfortunately, we’re not in the — necessity of appeal.

No, I understand that.

William J. Brennan, Jr.:

[Inaudible]

Robert L. Carter:

The order has been entered.

This was — it was very recent that an opinion handed down.

William J. Brennan, Jr.:

[Inaudible]

Robert L. Carter:

Well —

William J. Brennan, Jr.:

[Inaudible]

Robert L. Carter:

But this is only in line with these Court’s decision that they question of lobbying when there is a direct contact with the legislature and then on that basis, the statute was upheld; that phase of it was upheld and was construed only to apply to that kind of activity.

Now the two statutes that were left was the statute which I have referred to and another, the — we took the cases through the state courts, seeking a declaratory judgment and an injunction.

The Supreme Court of Appeals upheld the statute which is now presently here and which we contended is illegal but struck the other one down.

So I think the —

Potter Stewart:

So we have just one here.

Robert L. Carter:

Yes sir, just one statute at the present time.

Robert L. Carter:

Now, the — as the NAACP is organized and I know that this is familiar to some of you, but I think that I should — in view of the number of cases that had been here, but as the Association is organized, we have in Virginia the only aspect of it that I think is important to an understanding of this particular case, there is in Virginia a statewide organization which is called a State Conference.

It’s composed of approximately 80 or 89 branches of the national organization.

These are unincorporated Associations.

There are groups — with the — a group of lawyers at the time of this proceeding and numbered 15, they called themselves “legal staff” a legal committee of the Virginia State Conference.

The Virginia State Conference and the officers and members of the organization, advocate the attack upon statutes and regulations which are discriminatory.

They urge people to take action against them to assert their rights.

These group of lawyers have been working together and they are the persons that will panel litigation which the NAACP brings in the Court or sponsors in the Court or pays for which are brought in the Court on a matter of which there is a concern about the issue of racial discrimination, school segregation and that cases — and cases as they come.

Now —

Potter Stewart:

The NAACP also has been active in litigation of somewhat different kind — they’re — in the record I saw references to NAACP lawyers who would — have been acting in criminal cases involving perhaps a white victim or colored defendant or vice versa.

Robert L. Carter:

We — the Association is active in cases in the broad outline where an issue of racial discrimination is involved to test the constitutionality of state action or statute and where the matter would be of concern to Negroes or the club.

It is also active in cases, in criminal cases in which the Negro defendant is involved in which by virtue of a — of what we believe to be a denial of due process, the administration of justice has — there has been a failure of the administration’s suggestion of justice and we think that this kind of case would be helpful to Negroes in order to secure a higher standard justice, an even handed justice is applied to them.

So that the only basis in which the Association takes the case, it is that, it’s whether or not its belief that the resolution of the issue will have some effects on Negroes as a client.

Potter Stewart:

It seems to me I remember shortly before I left the Court of Appeals, there was a case from Michigan and the facts were that the defendant petitioner was a Negro and the victim had been a white person but the issues in the case were whether or not he had been wrongfully deprived of the counsel because he has pleaded guilty and denied trial in Michigan, they will take — still take cases like that?

Robert L. Carter:

Yes sir.

Potter Stewart:

I mean the issues that they were not racial issues on the surface.

Robert L. Carter:

The issues are not racial issues on the surface whereas for example in some of the confession cases here and the case that you mentioned, the fact that Negroes has been denied the right of counsel or has been involved in an issue of forced confession or it has been a confession that has been beaten out of him and so forth, we take that case on the grounds that this does affect Negroes as a class and this will have some effect on — beneficial effect in terms of the administration justice.

Arthur J. Goldberg:

Mr. Carter [Inaudible]

Robert L. Carter:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Robert L. Carter:

Yes sir

Arthur J. Goldberg:

[Inaudible]

Robert L. Carter:

Now, insofar as the — how a case gets to or litigation gets to the Association in Virginia, the record discloses that the matter will get to the Association in one of several way.

One that a person may come — we have office in Richmond, a State Conference Office in Richmond, a State office in Richmond with a paid full time executive officer who is not a lawyer, persons may come to that — to Mr. Byrnes, the name of the executive secretary, complaining about an issue of discrimination, complaining that some action, something has happened to them or some action has been taken against them which is violated — violative of their constitutional right.

Mr. Byrnes will refer this matter to a — one of the lawyers to determine whether this is an appropriate case for the Association to concern itself.

Or the matter may come directly to one of the lawyers, one of the 15 or 16 lawyers on the — on the legal staff, persons may come to them as for example in Norfolk or some other place and say that we would like you to come and speak to some parents, we’re concerned about the fact that our children are still attending segregated school so we would like to you come and advice us on this matter.

Potter Stewart:

Are these 15 or 16 lawyers are — are they full time employees?

Robert L. Carter:

No sir.

Potter Stewart:

No.

Robert L. Carter:

They are volunteers.

They — as the record discloses that they are persons who are only paid in terms of per diem for their expenses and so forth when they’re actually involved in any litigation of the Association or the cost of which the Association pays for.

Potter Stewart:

Are there any lawyers in Virginia who are full time employees?

Robert L. Carter:

No sir.

The — there are a number of lawyers or few lawyers that we have — full time employ — full time — paid full time persons who devote all of their time to the work of the Association but they’re not in Virginia.

I am one of them.

[Inaudible]

Robert L. Carter:

How much?

Tom C. Clark:

[Inaudible]

Robert L. Carter:

Well, I hope this is — it is hard to estimate that in various estimates given of it, Mr. Justice Clark, I think that the average is on some of these cases that it would cost between $5,000 and $10,000 at the present time to bring for example a school desegregation case prosecuted in the courts up to this level.

However, as you well know when the initial school desegregation, the matter was brought — it required a considerable amount of — larger amount sum of money.

And these things depend in large extent upon how many appeals have to be taken and things of that kind.

But I think in the record, the estimate is at one point or another that was about the present time about $5,000 to $10,000.

[Inaudible]

Robert L. Carter:

That would include the expenses that the Virginia State Conference for example would pay.

Now —

[Inaudible]

Robert L. Carter:

No, that’s in a court cost for any record.

There are things — there were some expenditure of $12,000 which we have cited in our brief which the — a little over $12,000 which the Virginia State Conference paid out in court costs and counsel pleas in school segregation cases between the period I think of 1956 to 1958 or some two-year period as I recall.

[Inaudible]

Robert L. Carter:

In Virginia?

No sir.

I’m sorry I wouldn’t be able to give you an estimate of it.

I think that there have been — there is a great deal of litigation here, some of which is on the threshold of being before this Court.

[Inaudible]

Robert L. Carter:

Yes sir, yes.

[Inaudible]

Robert L. Carter:

No sir.

The — as I was referring now, the — the second ways — the certain manner in which cases are sponsored by us or the fees are paid by us is when the matters come to a lawyer and this lawyer will determine with the — a chairman of the legal staff that this is a case of corporate or association intervention and the Virginia State Conference will then decide and determine that it will pay the Court cost and will — counsel pleas.

Now —

Tom C. Clark:

You pay it directly.

Robert L. Carter:

We pay it directly.

Robert L. Carter:

We pay it to the lawyers and we pay the costs but nothing is given to the litigants themselves.

In other words, a trial or a parent in a school case in Charlottesville for example, who wants to contest the constitutionality of his denial of the right to attend school in Charlottesville without being restricted on the basis of race, would the — if the case were appropriate when the Virginia State Conference would pay the costs.

The cost would be paid to the attorney who is involved in terms of what his fee is and the payment would be made for whatever the brackets and briefs and court cost will be involved in this.

The — nothing would be — no funds would pass to the litigant.

[Inaudible]

Robert L. Carter:

Yes sir.

[Inaudible]

Robert L. Carter:

Yes sir.

This is — this is, as I understand, the decision.

You’re talking about the case I have referred to —

[Inaudible]

Robert L. Carter:

Yes sir.

But you —

[Inaudible]

Robert L. Carter:

Yes sir, but you will recall Your Honor that we are not dealing with that phase of the litigation.

We’re dealing with a statute which has been interpreted by the Supreme Court of Appeals of Virginia in which in my judgment at least, indicates and flatly asserts and construes the activities in which the Association is engaged in is a violation of the — of the statute which is now before this Court and that we are engaged in what they say, running and capping and in the solicitation of business for attorneys and for that reason that we are guilty of [Inaudible] and the attorneys who are associated with us in handling of this kind of litigation would be subject — subjected to disbarment.

[Inaudible]

Robert L. Carter:

Yes sir.

Now, I think that what has to be kept in focus it seems to me in the — in any fair appraisal of the — of this statute and this — at the present time, is the fact of the Negro status in American life.

I think that this in terms of an interpretation of whether — whether these activities are valid or invalid or whether they amount to [Inaudible] and so forth, I think that this has to be kept in focus because the — as we know, in terms of the Negro in America and particularly in the South is that — is an individual who has been economically and politically deprived and disadvantaged.

The Negro has not been able to have any effect upon the executive or legislative process, the state government for a long time.

This is changing because this certainly has been true.

And as a part of the effort for a Negro to secure equal rights, equal citizenship rights, his only the effective method up until the present time, has been largely to an attempt to bring test cases or have test cases brought which would determine whether various acts of the Government — the state government were valid.

It should also be remembered that in this effort, the Negro as a class is arrayed against the whole panoply of state power and that the Association in the effort to encourage Negroes to assert their rights in an effort to find a way — ways and means of having these rights adjudicated so that they can be [Inaudible], is in fact, it is — it has to come almost — the NAACP and the Negroes in terms of their rights are arrayed against the state government and that most of these actions and the fact of the matter was the action that’s involved in this record which is before the Court, is an action involving the reach of state power whether or not the various acts are discriminatory or not.

This is not a — any litigation that involves — of the Association sponsors which involves private action or involves individuals as private persons.

What is involved in the litigation is — is the question whether state action or state regulations as it affects Negroes, conforms the constitutional requirements.

And I think that it also has to be kept in mind in asserting the — whether this constitutes [Inaudible] or not that these particular statutes which are now before this Court, the origin of the statute, its antecedents have to be kept in mind because this statute was a part of a package of statutes which were in turn a part of the effort of the State of Virginia to interpose massive resistance to the fundamental law as declared by this Court in respect to the school desegregation cases and of course, some of the statutes have been struck down and —

Potter Stewart:

Mr. Carter, before you go further, I wonder if I could take you back.

You began by describing factually the activities of the NAACP.

Are there any factual inaccuracies in the opinion of Judge Henning for the Supreme Court of Appeals of Virginia?

Robert L. Carter:

I — let me put it this way, sir.

I don’t believe that he has misstated any particular facts, but the conclusions —

Potter Stewart:

Well, of course, you disagree —

Robert L. Carter:

Yes sir.

Potter Stewart:

— or you wouldn’t be here but —

Robert L. Carter:

Yes sir.

Potter Stewart:

But in his — the facts are stated in those opinions and in that opinion, you do not quarrel with it?

Robert L. Carter:

I’m — except in terms — I mean I do quarrel with the use of weighted words such as solicited and clamoring and things of that kind but the mere facts of the — as stated by Judge Henning, I would have no — no quarrel.

I think that the facts as has been brought out are that the — the — the cases which have been brought on the record which has come to the Court, it is true as Judge Henning has indicated that there has been evidence in this record to show that some of the people who are litigants and whom the Association supported were not people that you would call populous.

To that extent, I think this is about — this is avowed fact and that we have made no issue of the fact that we do not as evade on cases on — in —

Potter Stewart:

There’s kind of a summary paragraph on page 15-A of the petition — your petition for certiorari and I can see that there are some color words but there are words in there that you — I don’t think they please you but forgetting those — is that — it’s the next to the last paragraph on page 15-A.

Robert L. Carter:

The activities —

Potter Stewart:

In short, the activities of the NAACP and so on.

Robert L. Carter:

Oh no sir.

I couldn’t — that — this is put on court —

Potter Stewart:

What’s the (Voice Overlap)?

Robert L. Carter:

That’s what I would regard.

Potter Stewart:

I thought it was but now, what are the inaccurate facts or something except for the use of the majority word?

Robert L. Carter:

Well, in the first place — in the first place, I don’t believe that the Association, in fact, channeled anything to any group of lawyers.

What really occurs is that in terms of this kind of litigation that we support is that persons come to the Association and there are lawyers who have — who have been working, voluntarily working with the organization and have handled these kinds of things before have worked together on them before, either people come to them or they come to us, and in turn, we ask the lawyers to look into the matter to tell us what we should have.

The Virginia Court is directing himself only to those cases while the Association goes to people and not what people [Inaudible]

Robert L. Carter:

Well, I think, Your Honor that —

— people and ask them to become plaintiff and refer it to the lawyer and then page the lawyer.

Robert L. Carter:

Well, the fact to that matter, I don’t think that there’s anything in the record that would sustain the fact that we go to people under these circumstances at all.

What we do, do, and I think that the record is before the — before the analysis of the record or the evidence in NAACP versus Patty which is the record is number 127 which was before this Court and the analysis of the record in this case and by the state court is entirely different.

The Supreme Court of Appeals of Virginia, found that the calling of Mr. Hill for example, is one of the attorneys, a group of parents calling Mr. Hill to come to speak to a group of parents about an issue of discrimination or school problem, was going to autistic in and out.

And as a matter of fact, what has really occurred is that these people know and do know in most of these matters that we have a concern for these things and our branches have had meetings and all of this kind in terms of talking about the illegality of segregation.

The people get in touch with some person on the staff or a lawyer and say that we want to fight with action.

Now —

Potter Stewart:

On the bottom of the paragraph — the paragraph that begins on the bottom of 15-A and runs over into 16-A, the Virginia Court points out that the difference in the evidence in this case, the additional evidence of this case, additional to that that was before the federal court in NAACP against Patty, is that inaccurate or incorrect?

Robert L. Carter:

Well, let me put it this way, Your Honor.

The evidence that was before — there is some additional evidence before the Court which the Court in reading the record will see before the state court in addition to the evidence before the — before the federal court.

The evidence in fact shows that when the — the item that I’ve mentioned to you before and that’s a question that they had, a number of people testify that they had incomes of $5,000 or $4,000 of dollars.

That’s in addition to the evidence before the federal court.

The other —

Hugo L. Black:

You deny that?

Robert L. Carter:

No sir.

I — the — we’ve made no issue of that.

The other matter which was before the Court was dealing with the — with the kinds of issues which we had brought up in the school cases, showing how — more in detail how Mr. Hill and some of the other lawyers and the Association got involved in the case.

But I think that any reading of the evidence on this fact that Mr. Bank’s testimony before the federal court, Mr. Hill’s testimony for the — before the federal court, reveals that there is no difference in this regard in respect to the evidence into court.

Potter Stewart:

Mr. Hill himself a lawyer?

Robert L. Carter:

I beg your pardon?

Potter Stewart:

Is Mr. Hill a lawyer?

Robert L. Carter:

Yes sir.

Potter Stewart:

And he was the one who address this meeting?

Robert L. Carter:

Well, there were several instances testified about it and let me take just one of them, the case involving Charlottesville.

The evidence in the — in the — before the state court show, the issue was, how did Mr. Hill got involved in this.

Mr. Hill indicated that he had, for many years, had been known about the problem in Charlottesville, that he was active in the Association and that the people had been calling him, and at one point, when this particular case came up that the president of the branch, the local branch in Charlottesville, asked him to come to Charlottesville to speak to some parents who wanted some legal advice and who wanted to talk to him about that particular problem.

Mr. Hill went to that meeting and the issue was the question of segregation and Mr. Hill advised them as he had been advising that the only way they could have secure equal education opportunities was to — was in his judgment was to make an attack on segregation.

Authorizations at that time were signed.

Some of which were addressed — had his name on them, others were the forms that were out and he filled them in later and he then went to the NAACP State Conference.

There was this — this decision was made and we should support the case and this is how we were involved.

Arthur J. Goldberg:

Mr. Carter.

Robert L. Carter:

Yes sir.

Arthur J. Goldberg:

Looking at the question of [Inaudible] particularly in reference to the action of the Supreme Court of Virginia [Inaudible]

Robert L. Carter:

Yes sir.

Arthur J. Goldberg:

[Inaudible] is that right?

Robert L. Carter:

Yes sir.

Arthur J. Goldberg:

They could provide them [Inaudible]

Robert L. Carter:

That’s right.

Arthur J. Goldberg:

[Inaudible]

Robert L. Carter:

In this respect, Your Honor, the Supreme Court of Appeals of Virginia, seems to say exactly that, and I think in all fairness, I’ll have to admit it does say that.

Although I may have this caveat that what it does say is that all of our activities that they have found them are violative of the statute.

It does say — it says where we would find that would curtail our activities is to the extent that the NAACP in handling these kinds of cases only has a limited amount of funds.

It has attempted to use these with as much — to make them go as far as they can.

This decision would seem to indicate the best lawyers, the lawyers who are connected with the association who know most and about the whole issue of racial segregation and the law who are most interested in this matter would be the lawyers who could not handle cases of the kind in this field.

Arthur J. Goldberg:

[Inaudible]

Robert L. Carter:

But Your Honor, the only thing that I have that I can address before the Court is that this is the false issue, the Association — there was no evidence in this record that anyone has come to the — come to the — in Virginia and has said — and has been told that you’ve got to use a particular group of lawyers.

It is true, of course, that any cases that are handled by the NAACP that if they’re handled by them that they are handled by particular lawyers who have been associated with the organization.

Byron R. White:

[Inaudible]

Robert L. Carter:

Well —

Byron R. White:

[Inaudible]

Robert L. Carter:

That’s true but as I understand the opinion, Mr. Jus —

Byron R. White:

[Inaudible]

Robert L. Carter:

We feel that insofar as our operation is concerned that we would have the money which the Association uses, hand — and cases handled by lawyers who we feel are competent and therefore whom we would — we would be ought to handle the matter.

We do not feel that we should be in the position of having cases brought by people whose competence we may — we may have some doubt.

[Inaudible]

Hugo L. Black:

I don’t quite understand that either.

Robert L. Carter:

Alright sir, alright.

Hugo L. Black:

[Inaudible] it is your position and I thought so NAACP [Inaudible] particularly with regards to segregation.

In order to do that, you would have to have — you have to be lawyers to try their lawsuits.

You have federal lawyers, particularly in this field and through the degree of Association with your organization.

Your organization finds to carry on data for any concern with limited amount of funds it had [Inaudible] more skilled and more experienced so that they can go ahead and do it and if you do tell them, if you’re not going to pay the lawyers [Inaudible]

Robert L. Carter:

Well, this is the — my only problem but if that’s — that’s exactly what the case would reduce itself too, Your Honor.

Hugo L. Black:

Well, that is the fact.

Robert L. Carter:

That’s a fact.

Hugo L. Black:

Well, that is what you’re defending?

Robert L. Carter:

Yes sir.

But the point that we have in terms of this case is that — is that the State, I think the State’s opinion has made a false issue out of this because — and I suppose — what I was trying to show to the Court, there has been — this is not a closed corporation or closed group of lawyers.

The evidence discloses that the numbers of lawyers are encouraged to be involved in this — to become members of the staff.

Robert L. Carter:

No one has been kept out of it.

These men happened to — or on the so-called part of the operational persons who have happened to be interested in this particular problem.

Now, Virginia, the Supreme Court of Appeals would attempt to give the impression I suppose, and this is what bothers me about the question and it gives me difficulty, I guess, would give me the impression that there are a lot of lawyers outside that somehow — that this is only channeled to certain people and that their whole —

[Inaudible]

Robert L. Carter:

Yes sir.

[Inaudible]

Robert L. Carter:

Yes sir.

Potter Stewart:

They do refer litigation to the lawyers and they do pay them.

Robert L. Carter:

Yes sir.

Byron R. White:

And they can’t [Inaudible]

Robert L. Carter:

That’s right sir.

Yes sir.

Byron R. White:

[Inaudible]

Robert L. Carter:

Yes sir.

The — the — yes sir.

Hugo L. Black:

[Inaudible]

Robert L. Carter:

Alright.

The — the point is that the — the counsel — counsel in these cases which the litigation which we support have been in the forms which I’ve been given out, there has been one or two instances in which I think the record discloses that there were persons who were not associated with the terms.

But for the most part, I think the record discloses that these cases were handled by particular lawyers who happened to be on the legal staff with the NAACP, the 15 or 16 lawyers.

Arthur J. Goldberg:

[Inaudible] close rule —

Robert L. Carter:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Robert L. Carter:

Yes sir, that’s right.

Arthur J. Goldberg:

[Inaudible]

Robert L. Carter:

Yes sir.

Now —

Hugo L. Black:

Whether closed or not closed [Inaudible] –-

Robert L. Carter:

That’s right.

Hugo L. Black:

[Inaudible]

Robert L. Carter:

Yes sir and I might add further on this record that there’s no evidence in this record that any individual came to the Association and said that we want to hire — we have a particular case and we have a particular lawyer who is outside of your — not on your committee but we want this person to have this particular case and that we have to turn him down.

Robert L. Carter:

The evidence discloses that whenever the persons came to lawyers, they came to lawyers that were associated with us.

William J. Brennan, Jr.:

[Inaudible]

Robert L. Carter:

Well, I would think that it would be — it would be —

Byron R. White:

[Inaudible]

Robert L. Carter:

I think that our operation would be crippled for several reasons, one, I think that the knowledge and interest in the problem is limited.

The particular lawyers, for example, if it would require that the association would — could not have lawyers who are interested in their — in having litigation before them is this group of lawyers that manifested an interest, work together on the problem, discuss the whole issues of segregation, discuss ways and means and to pick up ways of means to attack the whole problem and to use their expertise in a particular manner who spent part of their time learning about the whole question of the reach of the constitutionality of racial discrimination, how it can be attacked, how it can be brought sharply to the issue presented to this and other court squarely, we would, it seems to me that this would interfere completely with the — with the whole thrust of the Association’s operation because there would be no group of people who would devote their time and effort and study to this.

There would be some lawyers who would be out outside who may or may not be interested in this particular field.

[Inaudible]

Robert L. Carter:

We have had —

[Inaudible]

Robert L. Carter:

No sir, we have not and I think that it’s of some — it may well be public knowledge that this Court is aware of the fact that it has been a great deal of discussion right in the newspapers of the difficulty of secured attorneys to defend Negro defendants in the South.

This has been a subject of some concern.

We think that not only must these cases be brought but the cases have to be brought on the basis of — upon in which the particular issues which involved the efforts of Negroes to secure equal rights in whatever category can be defined and determined by the Court.

And we think under this — that under these circumstances that it is essential that lawyers who have worked on this problem from time to time, who know something about it who have manifested an interest in it, these lawyers must no be jeopardized in terms of their own practice by involving themselves in this particular operation.

And for this — for this —

[Inaudible]

Robert L. Carter:

I beg your pardon.

[Inaudible]

Robert L. Carter:

Yes, we could — we could use the research but you don’t know how that research can be — how that research after you have used it or how that research would be used in actual litigation.

[Inaudible]

Robert L. Carter:

That’s what we —

[Inaudible]

Robert L. Carter:

The record shows the basis for the Courts’ statement that the NAACP has decided as of about 10 or 11 years ago that it would only finance litigation in the field of segregation which involved an attack on segregation itself.

[Inaudible]

Robert L. Carter:

Right, right sir.

I’m not talking about the litigation in general [Inaudible]

Robert L. Carter:

Right, right.

Now —

[Inaudible]

Robert L. Carter:

I don’t think, Your Honor but there’s anything in the record which would sustain the fact.

[Inaudible]

Robert L. Carter:

That’s right.

Byron R. White:

There’s no part of your operation [Inaudible]

Robert L. Carter:

That’s right.

[Inaudible]

Robert L. Carter:

Well, no sir, except for the fact that the — on the basis that even — my problem with this is that on the basis of the evidence before this Court, this — this — the Supreme Court of Appeals says that this evidence shows that you do conform — and direct the —

[Inaudible]

Robert L. Carter:

That’s right sir.

[Inaudible]

Robert L. Carter:

That’s right sir.

[Inaudible]

Robert L. Carter:

Yes sir.

It maybe but the point is that what we have attempted —

[Inaudible]

Robert L. Carter:

Well, no sir.

Let me explain, if I may take a moment to attempt to explain that.

The Association, and this is particularly — will be particularly illuminated in the — on the issue of the criminal cases, when the Association supports an individual who says that he has been convicted by coerce confession or the exclusion of Negroes in the jury, the Association would — and its lawyers would underwrite this case and bring the case up if necessary to this Court.

If at a — at some point, and this has occurred, where the Court would decide on some other basis that this person would get a life sentence or some judgment that would be binding on him until his benefit and he has no interest in further prosecuting this constitutional question, the NAACP naturally adheres or the lawyer handling the case would adhere to his wishes.

Now, in the — in the — this is where it’s — and when you get to the question of school segregation, what the — what the respondents are saying is, that because the NAACP says that we will not sponsor litigation unless it involves an attach on segregation per se that this in itself is controlling on the grounds that some Negroes who might be on the South would be happy inside this [Inaudible] argued separate with equal facilities.

But all I’m saying, Mr. Justice White, is that we make that decision before we entered the litigation and after that, the issue as to whether or not the particular litigant is going to pursue the case.

For example, the litigant may decide if they have in a number of instances —

[Inaudible]

Robert L. Carter:

That’s right.

The lawyer handles that and the litigant, as many of them have, have found that the — by being plaintiffs in various cases that it made them uncomfortable, their life is uncomfortable and they have said, “We don’t want to go on any further.”

Now in all instances of this kind, we have of course — the lawyers have of course withdrawn.

They’re not representing anybody who does not want to pursue the litigation.

So that my difficulty as I say with this statement with the conclusions that the Court has drawn is that they’re not based on my judgment on any facts, any evidence that can be supported in this record.

And that I — I think that we do not.

Now —

[Inaudible]

Robert L. Carter:

As a matter of fact, this particular statute, because it is based upon the pecuniary right or liability of the — of the — of corporation or the association that employs the lawyer, pays the lawyer, it would exact the liability insurance companies from the operation of the statute and under this — under this —

[Inaudible]

Robert L. Carter:

They — the — the law would bar the liability insurance companies from —

The lawyers will be guilty with [Inaudible]

Robert L. Carter:

No sir.

I think that the — I don’t believe so.

I think as a matter of fact that the insurance liability companies are able to handle cases of — cases of this kind in Virginia and this particular statute exempts them from this operation.

And on this phase, we contend for example that the statute is a denial of equal protection because the reach of the statute is based upon the property right and property interest of pecuniary right of liability of the particular concern.

And that this would cover liability insurance companies and would allow liability insurance companies to control the litigation and have lawyers handle it and would not in the case of our kind in which the issue is a civil rights and the individual rights of the parties.

Hugo L. Black:

Is that one of the [Inaudible]

Robert L. Carter:

Yes sir, we think — we point it out in our –-

[Inaudible]

Robert L. Carter:

Denial of equal protection, yes sir.

This is one of the grounds for our attack.

The brief currently, if I may, the other ground of our attack is that if it’s a denial of due process on the grounds that the standards which are applied here in terms of the — of when a person maybe able to assist in litigation have variance with general standards that are at the bar and that throughout the United States, the whole issue of being able to bring — test the litigation is important, is one of the things — it’s one of the — Because of the way in which this Court, for example, in the federal — the federal court handles cases, test litigation is essential because no matter how illegal it is, public officials are free from interference by any of their activity unless a case or controversy is brought in the federal court to handle it so that — and finally, I think that in terms of our objections of the statute is that we contend that this statute being a part of the massive resistance program of Virginia that its purpose was to destroy the Association and to prevent it from enabling persons, aiding persons to contest the state power to maintain the status quo and that is if — if the statute is upheld that our operations will be impaired and in this effect, we think that this is akin to race discrimination because as a matter of fact, the Association — without the Association being able to assist persons in contesting the validity of the action of state officials in attempting to maintain segregation in the state, add variance with this cost opinion, then the whole issue of the movement of Negroes in Virginia towards security, equal rights and equal justice will be impaired.

William J. Brennan, Jr.:

Mr. Carter, may I ask [Inaudible]

Robert L. Carter:

They — there was a long list of exemptions in 36.

This –-

William J. Brennan, Jr.:

[Inaudible]

Robert L. Carter:

This — on page 4 of the petition for writ of certiorari — yes, on page 4 where the statute is set out, I was referring to Section 58-78 which is about halfway down at the bottom of the page in which the definition as you will see about, again, in italics in which — in which it has no pecuniary right for liability.

And my analysis of that was to the effect that this would permit liability insurance companies to control litigation and would not permit —

[Inaudible]

Robert L. Carter:

Yes sir.

[Inaudible]

Robert L. Carter:

That’s right.

Or commercial — any kind of commercial interest but the statute you were thinking of was I believe 36 which was struck down had a whole list of exemptions which people that were exempted was found.

There’s no —

[Inaudible]

Robert L. Carter:

No sir.

William J. Brennan, Jr.:

Page 33 — 33 of the record.

Robert L. Carter:

Well, the one before you.

The Supreme Court has construed 54-78 only to indicate that it applies to us.

It hasn’t said that what it means in terms of other people but it has said that it applies to our activity.

We are going to —

[Inaudible]

Robert L. Carter:

I couldn’t — I couldn’t say but I think that in terms of the plain language of the statute that it would be — that there would be no other thing that they could hold other than it did not apply to commercial corporations or associations.

[Inaudible]

Robert L. Carter:

Well, I don’t know Your Honor except for the legislative history of these particular statutes in which the one — the 36 that you’ve mentioned and 32 I believe which was struck down which has a list of persons that they want to meet.

Now, the history of this statute is that it was designed, openly designed in order to attempt to prevent the Association from functioning and operating and was concerned only with the issue of cases involving the issue of racial segregation.

[Inaudible]

Robert L. Carter:

No, no sir.

[Inaudible]

Robert L. Carter:

That’s right sir.

That’s right.

Hugo L. Black:

May I ask you [Inaudible]

Robert L. Carter:

I didn’t hear you sir.

Hugo L. Black:

[Inaudible]

Robert L. Carter:

That’s what we contend the effect of the statute.

Hugo L. Black:

Is there any opinion within the Virginia Court [Inaudible]

Robert L. Carter:

Yes sir.

Hugo L. Black:

Does it also provide that any lawyers taking the case of this [Inaudible]

Robert L. Carter:

Yes sir.

Hugo L. Black:

Is there are cases still pending against the lawyer [Inaudible]

Robert L. Carter:

No sir.

That case was — was terminated with a reprimand of Mr. Tucker but in the cases not pending —

Hugo L. Black:

The case is not terminated?

Robert L. Carter:

It is now terminated.

Mr. Tucker was reprimanded.

Hugo L. Black:

What is that?

Robert L. Carter:

Mr. Tucker was reprimanded.

Hugo L. Black:

For representing a man [Inaudible]

Robert L. Carter:

Well, the —

Hugo L. Black:

— [Inaudible] statute.

Robert L. Carter:

Let me say — let me say Your Honor that the issues which were — would affect this case that is — that before the reprimand was made that those issues were thrown out, those questions were thrown out of the case and the complaint on that ground was dismissed.

Hugo L. Black:

That’s not [Inaudible]

Robert L. Carter:

That’s right.

That was dismissed.

Mr. Tucker was reprimanded on something that had nothing to do with particular — at least on the surface with the issue of the Association.

[Inaudible]

Robert L. Carter:

Well, I think it’s been found, Mr. Justice White that what we do —

Byron R. White:

[Inaudible]

Robert L. Carter:

Yes sir.

Byron R. White:

According to your review [Inaudible]

Robert L. Carter:

I — as I read the statute Your Honor, my only conclusion is that this would amount to the [Inaudible] of litigation or as to a business to particular lawyers.

And as I say, I think that what the Court has found, it has used language in terms of soliciting and channeling and controlling but it has said in effect that our activities amount to that.

Now what this leaves us with is —

Byron R. White:

[Inaudible]

Robert L. Carter:

Well, it might be, except for the fact that the Virginia Supreme Court did not specifically mention that and that the Virginia Supreme Court seems in terms of its opinion, the first part of his opinion when it treats the statute to say that our activities amount to that that we are soliciting and what we do confirms this and this really the —

Byron R. White:

Was there any [Inaudible]

Robert L. Carter:

The particular fact that I gather, that would be shown by the record is the fact that we — that the Association has admitted that encourages persons to assert their constitutional right, that the Association has from time to time indicated publicly that various laws or activities maybe unconstitutional that the Association has — people have come to lawyers or come to the NAACP and that they have been given authorizations of lawyers to handle their particular case.

And my —

Hugo L. Black:

Did NAACP recommend its lawyers?

Robert L. Carter:

Yes sir.

And on this day —

[Inaudible]

Robert L. Carter:

I don’t understand.

[Inaudible]

Robert L. Carter:

Well, Your Honor, the point is that in terms —

[Inaudible]

Robert L. Carter:

Well, the — the —

[Inaudible]

Robert L. Carter:

On this record and the evidence which was before the — before the Virginia Supreme Court of Appeals that each incidents that they complained of were instances in which the people came to the lawyers in terms of the cases.

[Inaudible]

Robert L. Carter:

Well —

[Inaudible]

Robert L. Carter:

I think that what the evidence will disclose in this case and as the — and I’m not attempting to invade the problem.

[Inaudible]

Robert L. Carter:

Well, I didn’t Mr. Justice White — Mr. Justice Brennan that what occurs in this case is for example in Charlottesville, again, that the parents or the president of NAACP branch called Mr. Hill who was the lawyer and said that these people want you to come to a meeting of the parents to discuss the school situation with them.

And at this meeting, Mr. Hill had authorizations which some — which had his name on others that were in blank.

Now, the only thing that I’m saying is that in this particular instance and in the Prince Edward County case which you will recall where the children were on strike, called Mr. Hill and Mr. Robinson and said, “Would you come up to help us?”

These are the kinds of instances in which people have been coming to — come to the Association seeking lawyers and this is the only thing that I was attempting to show —

[Inaudible]

Robert L. Carter:

Well, some —

[Inaudible]

Robert L. Carter:

Well, sometimes.

[Inaudible]

Robert L. Carter:

That was in Charlottesville but in Prince Edward County, it was — the children were going out on strike was another example who asked regarding contact with Mr. Hill and Mr. Robinson who suggested that they come —

Hugo L. Black:

[Inaudible] I didn’t quite understand your argument [Inaudible] that argue on the basis of what I believe or what the record shows and then can NAACP give privilege [Inaudible]

Earl Warren:

Mr. Carter, you do stand among — you do stand on that Mr. Carter?

Robert L. Carter:

Yes, I think that the — I think that the — although the — yes, I think that the evidence and I hear that I — I think that the evidence itself is not that clear cut but I think that in terms of the issue —

Hugo L. Black:

[Inaudible]

Robert L. Carter:

Alright sir.

In terms of the issue to make this a clear cut — cut question which I suppose was clear — the confusion which you see, I think that this is the issue in which we would have to stand, yes sir.

[Inaudible]

Robert L. Carter:

Yes sir.

From the cases that have been cited — that they’d cite over this.

Earl Warren:

Very well Mr. Carter.

Mr. Wickham.

Henry T. Wickham:

Mr. Chief Justice, members of the Court, as I said last year in our open argument, we’re not here today to complain about the success or failures of the petitioner.

Those results are not before this Court is not at issue, but it appears that what is in issue here today is whether or not this petitioner must follow rules that have been long laid down by many courts for the conduct of the practice of the law.

Henry T. Wickham:

It seems to be the local fusion about the terms and provisions of Chapter 33.

Chapter 33 amended Section 54-74 of the Code of Virginia and Section 54-78 of the Court of Virginia and for purposes for conformity only amended Section 54-79, I believe in the Code of Virginia.

And Section 54-74 has been on the law books of Virginia since 1849 in some form or other and it deals with the unprofessional conduct of licensed attorneys.

The 1956 Act, amended and reenacted Section 54-74, carrying with it the same provisions that were heretofore found in the statute, namely that is unprofessional conduct to solicit business directly or indirectly in amount of the Fifty-sixth Amendment added, I might say, another definition of unprofessional conduct though frankly, it’s my view that it was included in the first and it was not actually needed because it simply said that unprofessional conduct is also the solicitation or the taking of business from someone who the attorney knows is guilty of violating or running in statute, the running and capping statute of Virginia.

To me, that didn’t add anything to old 54-74.

It didn’t take a thing away from me.

Hugo L. Black:

May I ask you, whether you think the statute can go so far as the people are concerned?

Henry T. Wickham:

Well, I think we get to Section 54-78 to answer that question sir.

That’s the section that deals with laymen and running and capping and the amendment to that section added another definition of running and capping to include those who have right of interest in litigation.

Hugo L. Black:

Does that include the [Inaudible] and insurance companies.

They have a very good [Inaudible]

Henry T. Wickham:

And —

Hugo L. Black:

It goes far beyond that [Inaudible]

Henry T. Wickham:

I’m not familiar with the foreign bureau.

If your question directs to whether or not I have insurance along the [Inaudible] with insurance company furnished me lawyers to defend my case, is that the question?

Hugo L. Black:

Yes but it may direct to the law — the law of Virginia [Inaudible]

Henry T. Wickham:

I know no consists of law in Virginia that is on that subject that deals with that subject.

Potter Stewart:

And they would be accepted from this law because they would have a pecuniary interest, is that it?

Henry T. Wickham:

No sir.

I don’t — I don’t think that the legislature has insurance company in mind when the — when this law was written or this amendment was written, Mr. Justice Stewart.

Potter Stewart:

Chapter 33, does not apply — its provisions do not apply if the corporation has a pecuniary interest in the litigation and I should assume —

Henry T. Wickham:

Well —

Potter Stewart:

— an insurance company which might be liable to fail if the — if its insured loses would have a pecuniary interest.

Henry T. Wickham:

Well, no sir.

It’s — the key to Section 54-78 is solicitation under the old statute and under the new amendment.

You’ve got to have solicitation plus the fact that there’s no pecuniary interest or liability involved and so you have solicitation in each part of Section 54-78.

Earl Warren:

Well, which —

Henry T. Wickham:

And you can’t separate that —

Potter Stewart:

The solicitation of whom, by whom of what?

The solicitation of the lawyer by a corporation, isn’t that it, the procurement of a lawyer by a corporation?

Henry T. Wickham:

The right sir.

Potter Stewart:

Well, an insurance company in Mr. Justice Black’s case would be soliciting, wouldn’t it in that sense of the word.

Henry T. Wickham:

If they suggested that the — that I use their attorneys.

Potter Stewart:

You’re insured — you’re uninsured and you heard — you become a defendant and your liability insurer says, “We’ll furnish your lawyer and we’ll pay him.

Now, wouldn’t they come under the statute except for the exception relating to know Virginia in which it has no pecuniary right of liability?

They would not come under only because of that exception, wouldn’t that be true?

Henry T. Wickham:

Well, I’ll say this sir.

It seems to me that as I understand it, that is done, I believe though I’m not an insurance lawyer, I’m not sure how it works but you will still have that problem.

I mean you could get the insurance company if it was unlawful solicitation and they could be or might be exempt under the amendment of Section 54-78 but why would they — they would not be exempt under the first part of 54-78 which is the real definition of the words running and capping.

Potter Stewart:

It wouldn’t be an agent of the attorney, would they?

Henry T. Wickham:

That’s right, and again, you’ve got the word agent.

Potter Stewart:

That’s right.

Henry T. Wickham:

— invoke those definitions.

Potter Stewart:

It would be quite similar whether they’d come under the old — whether — either with —

Henry T. Wickham:

That’s correct sir.

Potter Stewart:

— either the NAACP or an insurance company would come under the original version of the statute as to the amount who is agent, wouldn’t it?

Henry T. Wickham:

That’s correct.

Of course there’s a definition of agent further down which was the original definition of agent which I believe it just simply says that an agent is anybody who acts in behalf of a third party so it’s a —

[Inaudible]

Henry T. Wickham:

That’s correct sir.

In other words, you’ve got two —

[Inaudible]

Henry T. Wickham:

I think that that amendment would, yes sir.

But I don’t think that there would be a court if there was — if you still got to have solicitation.

[Inaudible]

Henry T. Wickham:

I don’t believe it is sir.

I think that lawyers recommend it quite often.

[Inaudible]

Henry T. Wickham:

That’s correct sir.

That is — well, now, it — if the NAACP recommends an attorney to Mr. XYZ, they would not come within the terms of the statute.

[Inaudible]

Henry T. Wickham:

Well, that’s where you get into another question of control.

[Inaudible]

Henry T. Wickham:

It gets in the word of control, the master-servant relationship comes into — came into this picture as well as —

[Inaudible]

Henry T. Wickham:

Well, when you consider the term — what the term solicitation means, I think you also have to consider the master-servant relationship between a lawyer and client.

[Inaudible]

Henry T. Wickham:

And paid his fee?

[Inaudible]

Henry T. Wickham:

Well, if — if they — if they can go hand and glove, yes sir.

I have a hard time in my own mind.

[Inaudible]

Henry T. Wickham:

That’s correct.

The Supreme Court said that they could give financial aid to certain parties that they —

[Inaudible]

Henry T. Wickham:

That’s right sir.

[Inaudible]

Henry T. Wickham:

That’s correct sir.

Hugo L. Black:

The federal can change [Inaudible] they name a lawyer and they paid his fees.

Henry T. Wickham:

Then we get back to control of the litigation and I assume no control.

I can’t frankly see the distinction whether the Association pays the client and who in turn pays the lawyer or goes direct to the –-

[Inaudible]

Henry T. Wickham:

I say, I can’t see the distinction, therefore, I say that would be of no violation, that’s correct sir.

[Inaudible]

Henry T. Wickham:

And no — and no control.

No control.

Henry T. Wickham:

That’s correct.

Now, that’s — we put that in a vacuum.

It seems to me that I have trouble with this case when you pick up this part here and this part here and say, is it or is it not solicitation.

[Inaudible]

Henry T. Wickham:

That’s correct sir.

That’s correct.

Byron R. White:

Now what would you say [Inaudible]

Henry T. Wickham:

That’s right.

That’s the key, I think, is the control.

Now, they say there’s no control that after they set a policy for the type of case they will take but after that’s set, there’s no disturbing the lawyer-client relationship.

Well, now, when you consider this record as a whole, well, that’s just not true because what we got here, we’ve got Mr. Hill who is the chief of the legal staff.

Now he was the chief of the legal staff of the Virginia Conference NAACP.

He is NAACP or was NAACP in Virginia.

Now, he has a group of lawyers that has started at 13 and they’ve got 15 now or the day when this record was made up.

And —

[Inaudible]

Henry T. Wickham:

No sir.

They’re not employees.

Well, I wouldn’t say that Mr. Hill was or was not an employee of NAACP.

[Inaudible]

Henry T. Wickham:

I don’t think he was on a retainer.

There was another attorney that was on a retainer I think in the legal — in the fund.

I don’t think the record shows that he was.

Hugo L. Black:

Do you think the activities [Inaudible]

Henry T. Wickham:

I can’t say if it was subjecting to disbarment sir because I’ve seen —

Hugo L. Black:

Do you think he’s a violator of this law?

Henry T. Wickham:

It will make him a violator of Section 54-74 which would subject him to —

Hugo L. Black:

What he has done heretofore makes him violator of [Inaudible]

Henry T. Wickham:

Absolutely.

It will make him a violator of Section 54-74 prior to the amendment — after the amendment, with no amendment and with no law it would be a violation of the kind of legal ethics and uphold the law so held.

[Inaudible]

Henry T. Wickham:

Not — not in Mr. Hill’s case sir.

Well, I just can’t imagine the person of the local Chapter of NAACP in Charlottesville and he comes down to me that I want you to come up and talk to some parents so I go up to a meeting and I tell them what their legal rights are and what their constitutional rights are and what they should do and so forth and so on.

So they all sign up and I’ll take it out of my suit — brief case the opposition form.

Henry T. Wickham:

It’s in blank.

I’ll just give them and sign it and I go back and have my name and have other lawyer’s name and then I go to court.

I think I would be disbarred in five minutes under those circumstances and that’s my point here that it’s the right way to do it and the wrong way to do it and this petitioner can do it the right way and I see no reason — why which to change the long established rules —

Hugo L. Black:

How can you do it the right way?

Henry T. Wickham:

How can I do it the right way?

Hugo L. Black:

[Inaudible]

Henry T. Wickham:

Well, I think, one —

Hugo L. Black:

[Inaudible]

Henry T. Wickham:

I think one traditional you might say exception, it really to me if it’s not exception but it’s a — well, I use to call it exception to the general rule of what is or what is not proper solicitation, is — was discussed in the old case the In re Ades by Circuit Judge Sopher many years ago.

It was a bottom wall disbarment proceedings before the federal court and he said that they are exceptional cases but very few exceptional cases when the Association may procure a lawyer for a — it was an indigent defendant in this case and even — and then get out, the lawyer is paying — got no fee from anyone.

Another instance is the Gammons case against Carolina Bar Association, I believe in which the Bar Association took the lead in urging the citizens down there to fight these user laws and the lawyers of the Bar volunteered their services to fight that particular case.

They got no financial gain of this.

Now, these lawyers —

Hugo L. Black:

What you’re saying is that these lawyers were working [Inaudible]

Henry T. Wickham:

That would — they would not be covered by this law, that’s right.

Hugo L. Black:

And the only way you can get that cases [Inaudible] get somebody free.

Henry T. Wickham:

Well, I don’t know.

These record shows that most of them are quite able to pay for their own attorneys.

Hugo L. Black:

Some of them are, I would think throughout [Inaudible]

Henry T. Wickham:

Well, I don’t know today whether or not in Virginia that there’s much expense involved anymore in this particular type of litigation that — in this record, I mean, the segregation litigation.

William J. Brennan, Jr.:

Lawyers [Inaudible]

Arthur J. Goldberg:

[Inaudible]

Henry T. Wickham:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Henry T. Wickham:

Yes sir.

And so the Supreme Court held interpreting the statute of your court.

Henry T. Wickham:

Our Court of Appeals?

It seems to me that when you consider much again these facts as a whole, as I pointed out, this is not a — this is a suit for declaratory judgment.

We’re really deciding this case in a vacuum of whether or not Mr. Hill would be disbarred, suspended or reprimanded.

They’ve got a procedure for that before a three-judge state court.

Henry T. Wickham:

Tomorrow, he might do something or I might do something, I might be before the Third District Committee which the Richmond Bar Committee.

He might — a petitioner affidavit might be filed against him with the Court, but how do we know?

We can’t sit here and really determine what Mr. Hill did in Charlottesville back in 1955 or 1956, 1957.

It doesn’t mean that he’s doing that today.

I just can’t say how the NAACP might be operating in Virginia today.

I don’t know.

I just say this that it seems to me clear that our statutes or not unconstitutional per se because really — that base really on our counsel legal ethics.

And number two, it would seem to me that the plaintiff’s contention here is that — really that it just don’t apply to their activities.

And I say to this Court if you read this record as a whole, it is clear that the petitioner has violated Section 54-78 of the Code of Virginia either prior to or after the amendment or has violated the Canons of ethics as the court below has held and that certain attorneys or certain records, certain evidence in the record, indicate that certain attorneys have violated Section 54-74 of the Code of Virginia prior to the amendment or after the amendment or with no statute on the Canons of ethics and it seems to me in conclusion that for this Court to reverse the Court of Appeals of Virginia, it must reverse — in effect reverse many State Court decisions not only in Virginia but in other states which had been cited in the respondents brief and also by the Court of Appeals and hold that solicitation as shown by this record is not proper.

If it does do that, this Court on the other alternative, it seems to me, would be to say that when Negroes are urging their constitutional rights, the Canons of legal ethics in section — statutes such as Section 54-74, do not have to be followed.

We have an exception in that type of case or we can just simply say that the petitioner may have its own set of rules and the rest of us will continue under the old set of rules.

I urge this Court to sustain the court below.

Earl Warren:

Mr. Wickham, if I may ask you one question?

Mr. Justice Goldberg, put a hypothetical question to you and asked you if such conduct of the part of the NAACP would be legal.

You said, yes.

Justice — Mr. Justice Harlan then said to you, that is what the Supreme Court of Appeals of Virginia held, was it not?

And I don’t understand you gave an answer.

Henry T. Wickham:

I said yes.

Earl Warren:

The answer is yes.

Henry T. Wickham:

But I’m not – in all frankness, I’m not sure of it that the — that the answer is completely yes.

Frankly, I kind of forgotten when Justice Harlan asked me the question I kind of forgotten everything that — I answered yes or the question which I answered yes to —

Earl Warren:

From Mr. Justice Goldberg, question that asked — it could have just before that.

Potter Stewart:

It involves the — you said that the element of control were lacking.

Henry T. Wickham:

Yes sir.

Potter Stewart:

That the statute would not be violated and Justice Harlan then said, that’s the implication of what the Virginia Court said, isn’t it?

And you said yes.

Henry T. Wickham:

Yes sir.

Potter Stewart:

And I would suppose you’re relying on the last sentence on page 14-A and the top sentence on page 15-A of the petition for certiorari.

You better look at it before you [Inaudible] —

Henry T. Wickham:

Yes sir.

Henry T. Wickham:

I’ve got it right here sir.

[Inaudible]

Henry T. Wickham:

Well, no sir.

I say this that I don’t think it’s — I haven’t been in any of these cases so I’m not up to date.

But we got a new chairman of the legal staff now.

I notice he is in all these cases now when before he was drawn in because — so he could learn and that’s in the record incidentally.

I don’t see how he can wear two hats or can turn his hat around and say that I’m establishing a master-servant relationship and when he is the head man in the State of Virginia as far as NAACP is concerned, that’s the — that’s where I have difficulty and that’s where I say that the control was there.

Now, I —

[Inaudible]

Henry T. Wickham:

That’s correct.

He’s the chief counsel in all these cases.

It’s hard for me to see it in another way, yes.

[Inaudible]

Henry T. Wickham:

Well —

[Inaudible]

No, I said that Mr. Hill was not employed by the NAACP on a legal — on a legal retainer.

I say that all the — that all of the legal staff work for the chairman of the legal staff in a very large sense.

[Inaudible]

Henry T. Wickham:

Well — in the — in the first place, the chairman sets fees in all cases except his own and then he consults with the president and then they set his fee.

That’s one example that I recall is in the record.

And so if you’re not — you’ve got to be — you’ve got to keep on the good side.

What I’m saying is that you’re going to keep on the good side of the chairman or you’re out.

You’re off this committee.

He won’t be reelected next year.

The employer [Inaudible]

Henry T. Wickham:

I didn’t say that sir.

[Inaudible]

Henry T. Wickham:

Having the staff, to me, shows a great deal of more control than just having a list of lawyers here when the staff — the chairman and the staff run the State Conference NAACP, that’s what I’m saying sir.

[Inaudible]

Henry T. Wickham:

That’s correct.

Hugo L. Black:

It would be alright.

Henry T. Wickham:

It can possibly be alright, yes sir.

[Inaudible]

Henry T. Wickham:

Yes sir.

[Inaudible]

Henry T. Wickham:

That’s correct sir.