National Association for the Advancement of Colored People v. Button

PETITIONER:National Association for the Advancement of Colored People
RESPONDENT:Button
LOCATION:James Wah Toy’s Laundry

DOCKET NO.: 5
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Supreme Court of Virginia

CITATION: 371 US 415 (1963)
ARGUED: Nov 08, 1961
REARGUED: Oct 09, 1962
DECIDED: Jan 14, 1963

ADVOCATES:
Henry T. Wickham – for the respondent
Robert L. Carter – for the petitioner

Facts of the case

The NAACP was prosecuted for violating a Virginia statute which banned “the improper solicitation of any legal or professional business.”

Question

Did the law, as applied to the NAACP’s activities, violate the First and Fourteenth Amendments?

Earl Warren:

Number 41 — or Number 44, National Association for the Advancement of Colored People, Petitioner, versus Fredrick T. Gray, Attorney General of Virginia.

Mr. Carter.

Robert L. Carter:

As we understand the issue in this case which I will attempt to set out at the outset, is whether petitioner who is engaged in a course — a regular course of conduct of attempting to educate the public in respect to issues of racial discrimination and which encourages Negroes to assert their constitutional rights and which holds itself out as being an agency which will aid if these — if persons come forward to assert these rights in the courts, in aiding to — in helping provide counsel, paying counsel fees and costs.

And whether the attorneys, the lawyers who are associated with petitioner in these efforts and which handle cases of this kind, whether they, both petitioners and the lawyers, can be found guilty of illegal conduct and barred from these activities under state law.

We contend that the State has no interest to protect, in this regard, has no power to make such activity illegal and we contend that in doing so, as the Supreme Court of Appeals has held in construing the statute which is now before the Court, that the construction of the statute violates due process and equal protection of the laws.

The case arose in this fashion on — in 1956, at an extra session of the General Assembly of Virginia.

The statute which is now here before the Court, and which we allege is unconstitutional, was enacted along with some five or six other statutes which petitioner charges were Anti-NAACP statutes and several statutes and laws dealing explicitly with the issue of school desegregation.

These were passed, and this was a part of the State’s massive resistance plan as they called it to desegregation in Virginia.

Petitioner, feeling that these statutes were designed to destroy it as an agent as — in its activities in Virginia, brought suit in the federal court against five statutes, I think two of them dealt with legislative investigation committees and these we could not — we did not feel we could attack, but the prior statute would — they were charged with being unconstitutional in the federal court.

In the federal court, three of the statutes were struck down and two of the statutes were considered too vague for interpretation. And as the Court knows, on appeal here, the three statutes that the Court had struck down, but that judgment was vacated and remanded on the ground that the — both statutes at the Supreme Court of Appeals of Virginia should’ve been given an opportunity to construe the statute before the federal court acted.

We are now dealing with the — with one of the two statutes which was not before the Court in NAACP versus Harrison which —

William J. Brennan, Jr.:

Just out of curiosity, Mr. Carter, what’s happened to those three? Are they back before the Virginia Court?

Robert L. Carter:

Yes, sir.

They are now pending before the Court of the City of Richmond at the present time.

Two of the — the other two statutes were not touched and these are the — one of these is the statutes we’re dealing with at the present time.

Petitioner brought action in the state court pursuant to the instructions of the court, attacking the validity of these two statutes, and I will now only deal with one of them, the instant statute because as you know, the second statute, Chapter 36, was struck down.

So that I will talk from now on as if only one statute was involved in this instance.

There’s no need to advert at all to Chapter 36.

The petitioner took the view that the instant statute, one, did not apply to its activities or the activities of any other counsel associated with it, and asked for a construction of the statute to that effect.

If the statute were construed as applying to its activities or the activities of counsel who are associated with it, petitioner took the view that the statute was unconstitutional and should be struck down.

The Supreme Court of Appeals upheld the constitutionality of the statute and held that it applied to petitioner’s activities and that in fact, the record disclosed on the basis of the record that petitioner was in fact engaged in what they call the illegal fomenting and starting up of litigation and the solicitation of legal business in violation of Chapter 33 and that counsel who were — who took cases with knowledge that they were being financed by petitioner was also guilty of malpractice and should — will be subject to disbarment.

The statute itself is set out on pages 2 to 5 of the — of our brief in chief, and the italicized sections of the statute are the new matter which had been added in the 1956 session.

This statute had been codified as it had been in existence sometime before.

Ordinary statutes like — which I’ve — they call it running and capping, but I think it’s — we can, at least I will use the term bar —

William J. Brennan, Jr.:

Mr. Carter, what’s capping?

What’s capping?

I never heard that expression.

Robert L. Carter:

I think — I have never heard of it either but I gather, from the description that what it means is that a person, an agent of an attorney is a runner to secure business for him and running and capping.

I don’t — other than the running, I don’t understand what the rest of it means.

William J. Brennan, Jr.:

In my state, we call the man who is chasing, is that what it is?

Robert L. Carter:

Yes, I suppose so.

The — as you will note the italicized section from the beginning now at the bottom of page 3 in Section 6, the italicized sections are the new matter which was added to the statute.

And under this statute, it is now made a malpractice for the acceptance by an attorney of the — of an employment, compensation of cost from any person or organization with knowledge that the organization has violated the provisions of Article 7.

And in Article 7, which is on page 4, a runner or capper is now described as not only being a person acting as an agent for an attorney but as an — acting as an agent for any organization which employs or retains or compensates an attorney in connection with any judicial proceedings in which the organization is not a party and has no pecuniary right or liability in the solicitation or procurement of business for such attorney or for the organization in connection with any judicial proceedings within which such attorney or person is employed, retained, or compensated.

Now, the facts on which the court reaches the conclusion that petitioner is engaged — is guilty of violating this Act are roughly and briefly these, and I might add that as we pointed out in our brief, that these facts were facts that were adduced in the federal court in NAACP versus Patty which was on appeal here, and it was the record that was adduced there, plus, the fact that in the state court, additional evidence was taken.

These were combined and this constituted the record before the state court, upon which the Supreme Court of Appeals made its findings.

The facts disclose that the petitioner is a nonprofit New York membership corporation and that it has several subunits in Virginia described as branches and a state unit in Virginia which is called a Virginia State Conference.

It disclosed that, as I indicated at the outset, that one of the areas in which the organization operates in Virginia is to encourage Negroes to assert their constitutional rights in courts and not only does it encourage them, but the organization itself, holds itself out as being ready, willing, and able to help persons to bring their matters before the court and to finance litigation whom it is brought.

It is conceded that the petitioner does not go out for people, but in terms of the — of its publications and writings and so forth, it does attempt to encourage Negroes when necessary to assert these rights and says that it will finance them, if someone comes forward.

And as a part of the Virginia — the State organization, there is a group of lawyers which constitute a legal committee which in this context is called a legal staff and these group of lawyers are volunteers, but they are elected each year by the state unit as a working unit of the — of — they have a chairman and most of the litigation in Virginia, if not all of the litigations in Virginia in the area of civil rights, which petitioner finances are handled by these attorneys.

Now —

John M. Harlan II:

Do you have a paid staff, a full-time paid staff?

Robert L. Carter:

Full-time paid staff which is —

John M. Harlan II:

Of lawyers?

Robert L. Carter:

Of lawyers, yes, sir, which this paid staff of lawyers is in New York.

There are no full-time paid lawyers operating outside the New York area.

It —

(Inaudible)

Robert L. Carter:

Well, this — there is an independent organization which is not before the Court, which is called the NAACP Legal Defense and Educational Fund which is separate from the — from petitioner.

And this organization did have a — what is called a regional counsel in the name — in the name of Mr. Sparks-Robinson who was a resident in Virginia and who was paid and retained to handle the litigation which (Inaudible) act as counsel in cases which they had.

Now, I must confess that the two organizations have operated together and jointly, but I didn’t advert to that because of the fact that the NAACP is the only organization now before the Court in this instance.

The way that the lawyers who operate in Virginia are — handle litigations, one, they do not work full time; two, they’re volunteers.

They do not get paid for anything, except, they do receive a per diem when they’re actually engaged in any litigation which the state unit or the national unit decides that for reasons that it will sponsor.

Who pays for that?

Robert L. Carter:

That is paid by the state unit in this instance.

Generally, it can be — help can come from the national unit in — help can come from the national unit, the main petitioner here, but most of these cases which are referred to in the record, the money was — or funds were raised by the state units and used to pay lawyers.

Now —

Potter Stewart:

What do you suppose the Supreme Court of Virginia means on top of page 11 when it says, “all costs and expenses incurred in such suits brought on behalf of Negroes are borne by the fund”?

Is that just a mistaken — a mistake in fact or have I misread it?

Robert L. Carter:

I — this is in the —

Potter Stewart:

I misunderstood it.

Robert L. Carter:

I think that what the Court was doing — was making a distinction between the Legal Defense Fund and petitioner organization.

This is not true.

Both organizations turn to finance the litigation and so forth.

The Fund operates differently.

It is a tax-exempt organization and the organization now before the — before you is not.

And it handles — it is involved exclusively in the issue of legal activity, whereas, this organization is involved not only in legal activity but also in political activity as well and, for that reason, it is not tax-exempt.

But I — there has been no real delineation of the kinds of work that the two will do in the field of litigation.

They both do engage in it and, for that reason, this is why that both organizations felt that this statute was a threat to their existence.

Potter Stewart:

This litigation arose as a, what, a suit for declaratory judgment or an injunction?

Robert L. Carter:

It was a suit that — it originally arose as a suit for an injunction before statutory United States District Court —

Potter Stewart:

And then it was —

Robert L. Carter:

Under the doctrine of federal abstention, we were sent over to the state court.

Potter Stewart:

And then, this also then became a suit for declaratory judgment in Virginia.

Robert L. Carter:

Declaratory judgment and injunction.

Potter Stewart:

And injunction in Virginia.

Robert L. Carter:

Yes.

Potter Stewart:

And the plaintiff — the only plaintiff was the NAACP.

The Fund was not a plaintiff.

Robert L. Carter:

The Fund was a plaintiff, but the Fund asked only for declaratory judgment and we asked for an injunction on that.

Potter Stewart:

Well, just let me pursue this a moment, excuse me, and a declaratory — both the Fund and the NAACP lost, in fact.

Robert L. Carter:

Yes.

Potter Stewart:

And the Fund does not appeal.

Robert L. Carter:

That’s right.

Potter Stewart:

Or not brought certiorari here.

Does this mean that you concede that the Fund is subject to this statute and as applied to it that the statute is constitutional?

Robert L. Carter:

No, I think there was a difference in procedure.

The Fund, being sent over to the state court, asked merely for a construction of the statute in the light of its view as to its constitutionality.

The Fund then was going back to the United States District Court and it’s now there for an interpretation now of its pleadings as to the statute’s constitutionality in light of the declaratory judgment which the state courts have answered.

Potter Stewart:

The state court did say that the statute applies to the Fund.

Robert L. Carter:

That’s right.

Potter Stewart:

And that as so applied, the statute is constitutional and the Fund did not ask for any review here of that — of this point.

Robert L. Carter:

The Fund was of the view that it could not ask for a review here because it had not asked that the statute be struck down.

It therefore felt that it had to go back to the United States District Court or the United States District Court which had jurisdiction which had retained jurisdiction to now interpret the statute in the light of the constitutional interpretation and construction which had been given to the statute by the Supreme Court of Appeals of Virginia.

William J. Brennan, Jr.:

Do you mean by that, Mr. Carter, in the District Court, is the Fund now asking if the statute as interpreted by the Virginia Courts, be struck down as unconstitutional?

Robert L. Carter:

Yes, sir.

But that — that’s the —

William J. Brennan, Jr.:

And — whereas you’re here or the NAACP is here asking us to strike the statute down contrary to the conclusion reached by the Virginia Courts that it was constitutional, is that it?

Robert L. Carter:

We are both — as a matter of fact, we are both doing the same thing, but in — now, it’s in view of the route which has been taken.

We —

William J. Brennan, Jr.:

If I — do I correctly understand you to say you didn’t feel that the Fund could come here because all it sought was a declaration of its application to the Fund, is that it?

Robert L. Carter:

That’s right.

William J. Brennan, Jr.:

That’s right, and I —

Potter Stewart:

And upon unconstitutionality, did it not?

Felix Frankfurter:

I don’t understand that.

Why — I don’t understand that.

I mean, I don’t understand —

Robert L. Carter:

Well —

Felix Frankfurter:

— is it — isn’t it suppose — isn’t the decision of the Virginia Courts on the request for declaration appealable to this Court, reviewable here?

Robert L. Carter:

Well, Mr. Justice Frankfurter, there has been a great deal of confusion about, when a doctrine of federal abstention is applied as to what one may do, and what occurred was that the Fund felt that the route it could take was to seek or declare — a declaration, a declaratory judgment in the light of the construction and constitutionality it was seeking.

And having gotten that construction, having the state court having construed the statute, with the federal court having jurisdiction, it felt that it had to go back before the state court — before the federal court and, there, apply for the relief which the federal court said it could not give because the statute was too vague and ambiguous.

Felix Frankfurter:

My difficulty arises from the fact that it’s to inquire whether it was assumed that the mere declaration by the Virginia Court of unconstitutionality, insofar as it affects the Fund — I’ll ask that question after lunch.

Earl Warren:

We’ll recess now.

Continue your argument.

Felix Frankfurter:

Mr. Carter, what I want to know is this.

The Fund is a New York corporation.

Was it doing business in Virginia?

It also entered — was it licensed to do business or whatever is required by Virginia law?

Robert L. Carter:

Yes, sir.

Felix Frankfurter:

It was a litigant before the Virginia Supreme Court when the question — when these issues were raised before it by proper litigations.

Felix Frankfurter:

It asked for a declaratory judgment, not an injunction.

Robert L. Carter:

Yes, sir.

Felix Frankfurter:

And the Court gave it a declaration.

Now, and you didn’t — or it didn’t come here.

Are you also in conflict with the Fund?

Robert L. Carter:

No, I’m not.

Felix Frankfurter:

It did not come here and my puzzlement is why didn’t it come here, if under the notion that a declaration is not a “case of controversy,” this Court has decided the opposite of that in the Wallace case in 288 U.S.

Because the reason — it becomes at least interesting, if not important, is we may get a situation [Attempt to Laughter] where the Virginia Court now has construed the statute, the construction is binding on the federal court as it is on this Court, but the validity or invalidity under the federal constitution is of course open to the federal court sitting in Virginia as it is open here and so we may get a rather embarrassing situation.

I’m not saying you will but there is that contingency that the Virginia Court has held one thing and the District Court may hold another thing.

Now, would you enlighten us on that?

Robert L. Carter:

Well, the only thing I can say in all fairness to —

Felix Frankfurter:

There’s no (Inaudible) — no suggestion that anybody —

Robert L. Carter:

I understand.

Felix Frankfurter:

— a counsel have their responsibility.

Robert L. Carter:

I understand the — but I’m trying to answer the question.

I really cannot and should not speak for the Fund.

All I can say is that in terms of how this litigation progressed that there was a difference in concept of how it should be pursued.

And we took the view that we should ask for an injunction as well as a declaratory judgment and that we should appeal the judgment if it went against this Court.

They took a different view and the issue — the case in terms of their — is now pending before the United States District Court and the United States District Court I think I might add took the view that they should have appealed to this Court.

Felix Frankfurter:

This matter has been before the District Court?

Robert L. Carter:

It is not pending, awaiting the determination of this case.

Felix Frankfurter:

Yes, but you said the District Court has pronounced some views.

Robert L. Carter:

Well, it announced it in open Court, not in terms of an opinion and it is now holding the matter awaiting the determination of this —

Felix Frankfurter:

But I did want to say if by chance there’s a misapprehension or a non-apprehension that a declaratory judgment may also come here subject to the appropriate condition, but this Court decided that nearly 30 years ago in 288 U.S.

John M. Harlan II:

Could it be that what you’re worried about was that you didn’t know what the right route of review was.

One of you picked the District Court and the other picked —

Robert L. Carter:

Well —

John M. Harlan II:

— picked the Supreme Court so you’d cover both wickets.

Robert L. Carter:

Well, what happened was that we — there was, as I indicated, a disagreement or rather difference as to what the right route or correct view was and we took this route.

That’s the best answer I can give to you.

Felix Frankfurter:

Anyhow, they’re not before us now and the District Court of Virginia has the independent duty, at least there is before the District Court of Virginia now, the constitutionality of this statute as construed by the Virginia Court in re — as it relates to the Fund, while we’re considering the constitutionality of the statute as it relates to the NAACP.

That’s the situation, isn’t it?

Robert L. Carter:

That’s correct.

(Inaudible)

Robert L. Carter:

That’s correct.

Felix Frankfurter:

But it’s not necessarily — not necessarily.

The facts might be different.

That’s the whole point of this strange selection of routes.

Robert L. Carter:

Well, I might —

Felix Frankfurter:

I’m not saying it is — they are.

I don’t know enough about it.

Robert L. Carter:

I might say that the — at the present time, the District Court is awaiting the decision by this Court and what of the decision on the constitutionality of the — is taken by this Court, the District Court will of course be bound by it.

Felix Frankfurter:

It’s a little strange for us to go out of the way and pass down the Fund when the Fund chose not to come here.

Robert L. Carter:

Well, I might say, Mr. Justice Frankfurter, that the facts which are crucial to a determination of the constitutionality of the statute, even though the organizations are different, the fact picture is substantially the same.

Felix Frankfurter:

Well, I’m — I won’t pursue —

William J. Brennan, Jr.:

I want to ask you that question.

Is there any (Inaudible)?

Robert L. Carter:

No, sir.

William J. Brennan, Jr.:

(Inaudible)

Robert L. Carter:

No, sir.

William J. Brennan, Jr.:

(Inaudible)

Robert L. Carter:

No, sir.

William J. Brennan, Jr.:

The two records are exactly the same (Inaudible)?

Robert L. Carter:

That’s right.

The cases were consolidated and we tried to gather on the same set of facts.

The only difference in the facts is in respect to the corporate structure of the Fund as contra — distinct to the corporate structure of petitioner.

John M. Harlan II:

But you did not —

Robert L. Carter:

And this — and that record is also —

John M. Harlan II:

That’s also (Voice Overlap) —

Robert L. Carter:

That is —

John M. Harlan II:

It’s not omission of any portion of this record that was related exclusively with the Fund, that’s all in hand.

Robert L. Carter:

That’s right, sir, insofar as it relates to this particular statute.

William J. Brennan, Jr.:

Well, I don’t know that it will be at all significant, Mr. Carter, but wouldn’t you tell us that the Fund employs a salaried lawyer, $6000 a year or something, and that’s not so regarding the employee — the lawyers who comprise the committee for the NAACP.

Robert L. Carter:

That’s right.

It employ — it does — the Fund, as a matter of fact has no membership and the NAACP does.

It has no chapters or branches that are operating.

Felix Frankfurter:

Well, that may make a difference.

Robert L. Carter:

And the —

Felix Frankfurter:

That might might a difference.

Robert L. Carter:

And the — and this organization does.

It had a salaried employee who was no longer employed.

William J. Brennan, Jr.:

The Fund had?

Robert L. Carter:

Yes, it had at the time this record was closed, but that salaried lawyer is not — now no longer employed in Virginia and he was — that lawyer was also a part of the legal committee of the petitioner in Virginia for which — which I’m about to attempt to explain.

Now, as I attempted to indicate before, the Supreme Court of Appeals found that the petitioner was in fact fomenting and starting up litigation and soliciting business and that the lawyers who took cases which petitioner sponsored could be charged under the statute with barbarity and be disbarred.

Now, the issues, it seems to me, or rather the — I think I have attempted to explain what the facts are, except to attempt to bring to the Court’s attention how the — a particular lawsuit — how the petitioner gets involved in a particular lawsuit.

It was pointed out in the record that the petitioner would become involved in a lawsuit in several ways.

One, a Negro who felt that his civil rights had been violated might come to the office of the state — the state office and talk to the Executive Secretary and say that “I believe this is a problem of discrimination which the petitioner should handle.”

He would — the officer of the state office, the salaried employee would refer him to one of the lawyers on the State Conference Legal Committee.

And if there was a determination that the matter is one which came within the jurisdiction of the petition, the kind of cases it handled, then the chairman of the committee would take it up with the president of the state office and, if they agreed, then these funds — then funds from the state office would be forthcoming to help in financing the litigation through the Courts or as happened in most of the instances in the particular case which are before us — which are before the Court, the people in particular localities would go directly to these lawyers and say that “we have a case involving school desegregation or some other matter and we would like to have this matter litigated in our behalf.”

This lawyer would then request of the NAACP whether or not it would sponsor the litigation and, if it did — if it agreed, then of course it would sponsor it and all the fees and expenses of the litigation would be handled and paid for by the organization.

Felix Frankfurter:

Ask NAACP in Virginia or the home office?

Robert L. Carter:

NAACP in Virginia and in the home office as well.

Now —

Felix Frankfurter:

You mean that no litigation for which the NAACP of Virginia is responsible will be undertaking without consent or approval or authorization by New York?

Robert L. Carter:

No, sir.

What I meant was that, in terms of the — I thought you asked me whether this would be that the matter would be financed by the state office or the home office and I was indicating that it could be financed by both.

The decision as to whether the case is going to be undertaken is generally made locally, not by —

Felix Frankfurter:

From what you said thus far, am I to infer that potential litigants would come to the NAACP?

The initiation would be from the outside.

Robert L. Carter:

That’s right.

Robert L. Carter:

Now I’m–

Felix Frankfurter:

Does the record — does the record uniform on that?

Robert L. Carter:

The record is uniform on that and it’s clear on that and I think that it is conceded by the defendants that this is — by the respondents that this is so.

I attempted at the outset to indicate of course that the — and in all honesty I must say that the organization does by virtue of the fact that it goes out and it encourages people to — it attempts to tell people what their believes, their rights are and encourages Negroes to test the validity — the invalidity of various forms of racial discrimination and it does indicate that if someone does come forward that it will assist that this ought to be a part of the picture, but we do not, and I think it is conceded that we do not go out and ask people to come forward and be plaintiffs in particular lawsuits.

Felix Frankfurter:

Now, let me be specific to be concrete on that.

Robert L. Carter:

Yes sir.

Felix Frankfurter:

I was connected successively with the Legal Aid Society in New York and later in Boston and there was — there were from time to time meetings held into the community that there is such an organization and that indigent people may come to that organization at the stated address and there get legal advice if they haven’t the means of having a private lawyer.

Now, does that describe the situation?

Robert L. Carter:

That describes the — that describes our situation.

Charles E. Whittaker:

But Mr. Carter —

Robert L. Carter:

Yes, sir.

Charles E. Whittaker:

Are we or are we not on the (Inaudible)?

Robert L. Carter:

That’s right.

Charles E. Whittaker:

(Inaudible)

Robert L. Carter:

Now, I’m sorry.

I think I spoke too fast.

I don’t agree that you are bound by the facts as they are found by the Virginia Supreme Court of Appeals.

I think that you may, and you may — not only you may, but it seems to me that you must reevaluate the facts and evaluate the record for yourself in determining whether or not these facts are — if the facts do constitute a violation of the constitution or the statute.

Charles E. Whittaker:

(Inaudible) Are we free independently to make a judgment upon those or are we bound by the facts as found by the Supreme Court (Inaudible)

Robert L. Carter:

I think so, except for the — our hesitancy, Mr. Justice Whittaker, is the fact that you have two courts.

You have two courts that have made findings of facts here.

You have the United States District Court and you have the state court and on virtually the same evidence, they have come to different conclusions as to what the facts are.

So that I think that the task — the question that you asked me is not — it’s a little more difficult than merely following the State procedure on what the State has found on virtually the same facts.

Now, these may be conclusions, but on virtually the same facts.

The United States District Court found that we — that the petitioner was not engaged in stirring up and fomenting litigation or soliciting business for lawyers as the term is understood, but on these same facts or practically the same facts which I will tell you what’s the — and I will show you the differences that I see in them, the state court reached the contrary conclusion.

Now, it can be said, of course, that these are conclusions of law and not findings of facts, but in any rate they reached different conclusions as to what the record showed in terms of the evidence.

Now, there was — there were differences in the evidence before the state court.

The entire record which was before the District Court was before the state court, but in addition to that, there was evidence shown that in the City of Norfolk and in Charlottesville and in Arlington, that some of the people whom the petitioner had assisted in litigation were not indigents, that they had property and I think that the — that they have — this list is appended to the brief of the appellee.

This was not before the District Court.

There was also the introduction of some documents which indicated that the state organization had sent out directives to the various branches which in effect was attempt — just telling them the effect of this — of the Supreme Court decision in 1954, asking them to petition their school boards to voluntarily desegregate their schools, advising them to go out and get people to sign petition and to attempt to work with the school boards, etcetera, to desegregate the schools and also advising them that the — if the school boards did not act, then there was time to file a lawsuit.

Robert L. Carter:

Now, these were — these were the differences — the only differences in the fact.

The — that fact was before the state court and it was not before the District Court, although I might say that the petitioner had took the position in the District Court and it’s taken the position all throughout this litigation that it does not regard itself as a legal aid society and it does not — it has not looked into the financial ability of the people that it supports to pay.

It also does not regard itself as a Negro defense agency and does not take each and every case that a Negro comes up and indicates that he has been denied his civil rights.

There is a category of cases which it does take and it does take cases in which an issue of racial discrimination is involved, the determination of which it believes the petition will affect a large number of Negroes as a class.

And since 1950, it has stated that it will not handle any litigation unless it involves a direct attack on the validity of racial discrimination itself or racial segregation itself.

Felix Frankfurter:

Mr. Carter, may I ask you to read or refer to the exact words of the statute, violation of which — with which you are charged or which you are in charge — enjoined not to violate.

You used several phrases and I want to know what the statute says about this.

Robert L. Carter:

Well on phrase — on page 3 —

Felix Frankfurter:

Page what?

Robert L. Carter:

Page 3 of petitioner’s brief, I’m sorry, in paragraph 6, the italicized language charges the attorneys who are associated with us of malpractice.

Felix Frankfurter:

Because of?

Robert L. Carter:

I beg your pardon?

Felix Frankfurter:

Because of?

Robert L. Carter:

Because of the fact —

Felix Frankfurter:

What are the words of the fact?

Robert L. Carter:

That they accept employment and compensation from an organization which is guilty of violating the provisions of Article 7.

Felix Frankfurter:

Now where is Article 7?

Robert L. Carter:

Article 7 is down below on page 4.

In Article 7, the italicized words again —

Felix Frankfurter:

Where?

Robert L. Carter:

Article 7 is on page 4.

Felix Frankfurter:

Yes.

Robert L. Carter:

Do you mean Article 7?

Felix Frankfurter:

It’s called Article 7, it’s 7 if you’ll see the —

Robert L. Carter:

One is for instance —

Felix Frankfurter:

Oh, I see.

Robert L. Carter:

Representation in 54-78 Your Honor (Voice Overlap).

Earl Warren:

Yes, (Voice Overlap).

Robert L. Carter:

But, they call it — it’s called Article 7, where it describes a runner as a — a capper as a person who is an agent or attorney or for any person or organization which would be a — which employs, retains, or compensates any attorney at law in connection with any judicial proceedings in which the organization is not a party in which it has no pecuniary right or liability.

We were charged with being in violation of that provision and that this was a part that in doing this, we were soliciting business for this attorney which we — for whom we compensate.

Robert L. Carter:

Now, this is what we — this is what we are specifically charged with.

Felix Frankfurter:

Is my legal aid society exempted from this?

Robert L. Carter:

Yes, sir.

Felix Frankfurter:

Where is it?

Where is that?

Robert L. Carter:

The legal aid society was exempted from the provision of the statute in Chapter 36, which is not before the Court.

Felix Frankfurter:

By a specific — I mean a specific organization?

Robert L. Carter:

The — a legal aid society which —

Felix Frankfurter:

A legal aid society.

Robert L. Carter:

— which is approved by the Virginia State Bar.

Felix Frankfurter:

I see.

Robert L. Carter:

And this was —

Felix Frankfurter:

By Virginia State Bar?

Robert L. Carter:

Yes, and this was specifically exempted from — there were several statutes.

I’m sorry, but there were several statutes, one was 33 and one was 35 which was here before.

Felix Frankfurter:

But you — you neither apply nor would you come under it?

Robert L. Carter:

No, sir.

The Court specifically held that we are not a legal aid society and its — in terms of its opinion and because the fact —

Felix Frankfurter:

Well, you didn’t — you weren’t approved, so you don’t come under the statute.

Robert L. Carter:

No, that’s right.

Felix Frankfurter:

And you never applied and you don’t want to be deemed such.

Is that right?

Robert L. Carter:

Well, I think that — I don’t know whether I’d go so far as not want to be deemed such, Mr. Justice Frankfurter, but I think that the legal aid society, as we understand it, is one that its help is dependent upon the income of the person as —

Felix Frankfurter:

(Inaudible) — and you’re not?

Robert L. Carter:

No, sir.

Felix Frankfurter:

At all events, you don’t come within the exemption because you didn’t come within the procedure for exemption.

Robert L. Carter:

That’s right.

Felix Frankfurter:

Alright.

John M. Harlan II:

The Virginia Court struck that statute down.

Robert L. Carter:

The Virginia Court struck that statute down but there are other provisions in the Virginia law, which specifically exempts the legal aid society, and in making these new provisions, they made sure that they did not strike down this kind of thing.

Robert L. Carter:

There is another statute which involves, which is Chapter 34.

Now, we think that — and I might briefly try to make my contentions, we take the view that the construction of this particular statute, in being applied to us, that what the petitioner is doing constitutes the illegal fomenting of litigation and the starting up of litigation and that the solicitation of business for lawyers, we contend that this is an arbitrary construction of the fomenting of litigation, of the term “fomenting litigation and solicitation” and also, we contend that the construing of the fact that lawyers who are associated with us, with petitioner, who handled cases are guilty of malpractice, that this is also arbitrary and is a violation of Due Process Clause of the Fourteenth Amendment.

John M. Harlan II:

(Inaudible)

Robert L. Carter:

Yes, sir.

John M. Harlan II:

(Inaudible)

Robert L. Carter:

I think we would be arguing that the statute was unconstitutional since — if a statute which was straightforward, a statute such as this, we would be concerned as to whether the statute applied to the kind of activity in which we engaged.

And, having attempted to show the kind of activity in which we engage and bring that before the Court, with the Court having made a specific finding that our activities come within the statute and are violative, we would have — necessarily be forced to contend that it was unconstitutional because I think the — without regard to the fact that this was, as we contend it is a racial statute, the Supreme Court of Appeals in its opinion has held that our activities come within its order and are illegal and I think that whether it was started out being racial or eventually came — became racial that we are affected by it and we would therefore, have to contest it.

Now —

Hugo L. Black:

Do you mind telling me — I understand the use of the word arbitrary in the shorthand method of —

Robert L. Carter:

Yes sir.

Hugo L. Black:

— stating facts, but would you mind telling me precisely what it is that you say they prohibit you from doing is unconstitutional and the formulization of your statement as to why it’s unconstitutional without using the word arbitrary definitely so I can get the facts that you are saying, you’re charged with.

Robert L. Carter:

I will.

I’ll attempt to do that.

I — it seems to us that they have found that the organization itself, by virtue of the fact that it — as I’ve attempted to explain, encourages people to assert their rights, that it offers legal assistance and counsel and pays lawyer’s fees, the Court has specifically found that this constitutes the unlawful solicitation of business for lawyers and that illegal fomenting and starting up of litigation and it has found that the lawyers who are engaged in it are guilty of malpractice.

We contend that this violates —

Hugo L. Black:

So it engages in precisely what ground?

Robert L. Carter:

The lawyers who handle cases which petitioner — for which the petitioner pays, for which he pay —

Hugo L. Black:

The petitioner pays.

Robert L. Carter:

— pays the legal expenses and so forth that these lawyers are guilty of malpractice —

Hugo L. Black:

In other words —

Robert L. Carter:

– and are subject to disbarment.

Hugo L. Black:

If it becomes a crime or whatever it is, a malpractice for a lawyer to handle a case that — where you pay the fees.

Robert L. Carter:

That’s correct.

Hugo L. Black:

Now, why do you say they can’t do that under the Constitution, under what provision and under what formalization?

Robert L. Carter:

Well, we — and let me add one other point.

Felix Frankfurter:

May I (Voice Overlap) — and pay the fees for litigants who could afford to pay, is that important?

Because I —

Robert L. Carter:

I think that this has been — that this has been shown, if the Court please, but that the statute does not necessarily reach that point.

Felix Frankfurter:

So then, should you —

Robert L. Carter:

I mean the opinion goes beyond that.

Felix Frankfurter:

But I understood you to say that you differ from a legal aid society in that you do not help, or whatever, you do not —

Robert L. Carter:

That’s right.

Felix Frankfurter:

— do business with indigent litigants.

Robert L. Carter:

That’s right.

Felix Frankfurter:

Is that right?

Robert L. Carter:

That’s right.

Felix Frankfurter:

So that a perfectly rich man can come to you (Inaudible) — perfectly — I don’t know what that means, but a financially able person can have you bear the cost of his litigation, is that right?

Robert L. Carter:

We do not investigate and determine whether a person has the means before we determine whether that assistance will be given.

Felix Frankfurter:

But I didn’t mean to suggest it makes a difference.

I just want to get the (Voice Overlap) —

Robert L. Carter:

The only issue that we’re involved in, Mr. Justice Frankfurter, in our determination is whether the case involves racial discrimination and whether it’s determination of having effect upon Negroes as a class.

Hugo L. Black:

You are then, as I understand it to say, that the fact that you offer to pay money and do pay money to lawyers who want to raise questions of racial discrimination on their part to protect themselves from racial discrimination cannot be made a crime as Virginia has not and cannot be made illegal as they’ve done.

Robert L. Carter:

I — yes, I take that position.

Hugo L. Black:

And what is — what and why do you say that?

What provision of the Constitution and under what formalization of its coverage?

Robert L. Carter:

Well, let me try to answer it this way.

There are two things I think that make the statute unconstitutional.

Hugo L. Black:

Where — what provision of the constitution are —

Robert L. Carter:

Due process —

Hugo L. Black:

— on provisions?

Robert L. Carter:

Due process and equal protection.

Now equal protection is — it will be a little shorter for me to answer.

The statute forbids an organization such as ours from engaging in this kind of activity because it has no pecuniary right or liability in the outcome of the litigation.

We think that this — what this means, as we understand the opinion, is that commercial — a commercial concern which had a pecuniary right or liability may do the things that we are condemned from doing and that therefore, insofar as we — we are not interested — we have no interest in the or no — we have no monetary interest in the outcome of the litigation.

It’s an interest in the civil rights, etcetera, of the group.

We think that this is a denial of equal protection and it has no relation in our judgment to make this distinction to the integrity of the bar and the protection of the judicial process which is the only objective that we concede that the State may have in enacting and forbidding the kinds of activities that we do in this context.

Hugo L. Black:

You’re saying they can’t follow this classification with reference to that Article?

Robert L. Carter:

With reference to that.

Hugo L. Black:

Are you depending on any other provisions with reference to —

Robert L. Carter:

Well —

Hugo L. Black:

— doing something to people on account of their race or anything of that kind?

Any other provision of the constitution you depend on —

Robert L. Carter:

Well, we —

Hugo L. Black:

— or their right to advocate things?

Are you depending on anything else except — just those particular provisions to which you refer, equal protection and due process?

Robert L. Carter:

Well, insofar as the organization is concerned and insofar as its members are concerned, since in effect, what this provision will do will make their right to group together and advocate and carryout a program which the association has carried out, this of course — this of course does strike, we think, that their right of — rights under the First Amendment which is also involved in the Due Process Clause.

We also feel that in terms of the construction of what solicitation is, we do not feel that in any fair and reasonable construction, normally as these terms are understood, that our activities or petitioner’s activities can be so classified.

Felix Frankfurter:

Let me ask you this.

Suppose some members of the Law School of the University of Virginia have as a collectivity, the law school think it’s very important to apprise people and make them alert to and the vigorous and assertion of their right has a carefully worked out program of making speeches all over the Commonwealth telling people what their rights are, Negroes or anybody else, I mean, any other, perhaps, minority groups and then they get a regular business to do this throughout the academic year, teachers all over Virginia, and that’s all they do.

Would they come within the statute?

Suppose they do it under the authority of the university as —

Robert L. Carter:

I think not.

Felix Frankfurter:

No?

Robert L. Carter:

I think not.

Felix Frankfurter:

Suppose — are you prevented from doing just that and nothing else?

Robert L. Carter:

We are not prevented from — at the present time, we are not prevented from doing that.

Felix Frankfurter:

I’m not arguing on any — I’m not arguing on —

Robert L. Carter:

I —

Felix Frankfurter:

— legal interest.

I just want to know what this is.

Robert L. Carter:

We may, as I understand the opinion below, we may still go out and encourage people to assert their rights, etcetera, but when we get to the point that the people come and ask and request legal assistance and ask and request us to finance their litigation, we are then, if we do that, we are — we become guilty of soliciting business for lawyers and the lawyers become guilty of malpractice.

Felix Frankfurter:

Now I suppose I happen to know of a lawyer in Virginia whose business, as a matter of fact (Inaudible) private meetings, he’s a good lawyer and most of activities have been (Inaudible).

Now, suppose they called you up and say, “Now, we can’t — we’re not this so and so in such and such a place.”

So there are other lawyers — did you just suggest lawyers or if they go to legal aid society, would that be within the statute?

Robert L. Carter:

Well, as you — we think that — as for the opinion that’s been interpreted, we can make no suggestion for lawyers because of the fact that we would then be soliciting business for particular — not only for our lawyers which has been done, but also for particular attorneys.

Now, I think that once we have a list and have a list of lawyers that we would recommend, for example, that would come within that prohibition —

Felix Frankfurter:

And if the University of Virginia Law School did that, they would come within it?

Robert L. Carter:

Well, I would think so, Your Honor.

I must add that I believe that our activity was condemned because of the fact that the kind of litigation — in the kind of litigation which we were involved.

Felix Frankfurter:

Also by your own statement, there are some additional factors in the record as to you which are not in my hypothetical case, namely that you actually have to finance these lawyers.

Robert L. Carter:

Yes sir.

We —

Hugo L. Black:

Would you be forbidden as you understood – as I understand this other part of your argument from paying a lawyer or helping a lawyer or advising a lawyer in the handling of a case where he said that he is being denied the right to vote on account of his race or color?

Robert L. Carter:

Well, we would be — I think I have confused you.

I haven’t made myself clear about the lawyer.

I think that in that kind of case, we would be forbidden, but what is forbidden is the lawyers who handle litigation for the — in which we sponsor are handling a litigation for particular person, for example, a person — a parent — a child wants to go to school has been denied because of race, a case to require the school board to admit them to the school.

The lawyer handles that litigation, the litigation is financed by petitioner.

Petitioner pays the cost of expenses and a per diem for the lawyer, that would be forbidden and if this were a case involving —

Hugo L. Black:

Well, with the case I mentioned — I’m trying to get down to a concrete thing as to what you’re claiming.

You talked about civil rights.

Robert L. Carter:

Yes, sir.

Hugo L. Black:

Do you mean by that, as one illustration, that your forbidden to pay a lawyer because of your interest in enforcing the right of people not to be denied their — or not to have their right to vote denied or abridged —

Robert L. Carter:

Yes, sir.

Hugo L. Black:

— on account of their race or color.

Robert L. Carter:

We would be forbidden from doing that.

Hugo L. Black:

And is the — as the Supreme Court of Virginia held that it’s illegal in Virginia for an institution or a person to help pay lawyers in order to protect that constitutional safe — constitutional right?

Robert L. Carter:

Insofar as it relates to our activities, they have so held.

Hugo L. Black:

Well, is that part of your activity?

Robert L. Carter:

Yes, sir.

Our activities involve the — any case in Virginia which — in which a person were denied the right to attend a particular school because of race, we would — and if we pay the lawyer who would handle litigation, we would be in violation of the statute.

Felix Frankfurter:

Now —

Potter Stewart:

Not just the mere paying wouldn’t do it, would it?

Isn’t that under the other statute that was struck down by the Virginia Supreme Court?

Simply paying for somebody else’s litigation I thought was covered by the chapter that was struck down by the —

Robert L. Carter:

No, sir.

This is — what was struck down — the other statute — the other was that you couldn’t pay unless you were related by blood —

Potter Stewart:

Yes.

Robert L. Carter:

— etcetera.

That has been struck down.

Potter Stewart:

That was struck down.

Potter Stewart:

So, the simple matter of paying would not violate the statute.

Robert L. Carter:

The simple matter of paying — or paying for the litigation when, as they found that we — that the litigation is being handled by a particular group of lawyers who are associated with us, that this has been struck down.

Potter Stewart:

Well, doesn’t this statute and you tell me if I’m wrong, I may be entirely mistaken, but doesn’t this statute make illegal only a combination of two things, the solicitation of litigation plus the paying of lawyers to handle it?

Robert L. Carter:

Yes, sir.

I —

(Inaudible)

Robert L. Carter:

I think that’s true.

(Inaudible)

Robert L. Carter:

Well, they said that because — they said that we had no pecuniary right or liability in the case and this is in the statute.

They said that we were soliciting illegal business for lawyers and I hesitated on your term, I do not think that that is correct, the use of the term “solicitation.”

As I understand the term “solicitation,” for example, would be that if a particular group of person were out getting business for lawyers for which the individual himself paid and therefore enriched the attorney.

This is not the situation in our particular case.

What occurs is that the — I’m sorry, what occurs is that the plaintiff who is concerned about his civil rights will go to a lawyer or someone and the financing of the litigation would come and the payment of the lawyer would come from the organization to enable the particular person to carry the case through the courts and to this Court if — eventually this Court —

Hugo L. Black:

Are you asserting the constitutional right without regard, the way you call it, solicitation of litigation, just what you’re doing, are you asserting a constitutional right for an institution or an individual to invite people to attempt to assert their constitutional right in the Court and to pay those lawyers who do this and to control their activities in that litigation to the end of protecting their constitutional rights?

Are you asserting that as a constitutional right to that extent?

It seems to me like maybe that’s where you are.

Robert L. Carter:

I think I am asserting that in the context in which — in a particular context of the lit — of the activities in which we are engaged.

You must remember, Mr. Justice Black, that we’re engaged in a — I don’t say this broadly, I have to limit it to what the kinds of activities that we were engaged in.

The — we’re engaged in an activity involving an issue of racial discrimination and segregation.

We are seeking in this to have Negroes assert their rights.

We in fact — and what the State here is doing is saying that we cannot do this, although they have a constitutional obligation on their own to afford the constitutional rights which we are attempting to have people assert in the courts and have it declared.

We think that the State cannot forbid this kind of activity or doing that on the grounds of any policy or the integrity of the bar, etcetera, because we think that the facts, in effect, belie that what is happening in this kind of situation is any threat to the integrity of the bar at all.

Hugo L. Black:

So, you go far enough to urge that although they can, as a rule, I don’t know whether you say anything about it, they can forbid just the stirring up outside ma — a litigation and things generally, they cannot forbid a movement on the part of groups or individuals which has for its aim the purpose of protecting the constitutional rights of a particular group of citizens and going to the extent of saying if you have the right to do that as a part of the protection of those constitutional rights.

Robert L. Carter:

I think that — I agree.

I think that this would be our position.

I don’t believe that a state has a blanket right to prevent, as you indicated, sir, the stirring up of litigation or the — it had — there has to be some basis in terms of the kinds of litigation it could prevent from stirring up and the kinds of things that it can do.

What is really happening in this case is that the prevention of our bringing — or our aiding people and bringing the — their cases before the Court is what in effect is happening is that the State of Virginia would be preventing Negroes from — in denying from seeking to test the validity of their action which amounts to racial discrimination and therefore leave their policy free from the scrutiny of the Court.

We think they cannot do this and we think that under the facts in this case, that this is a violation of our constitutional rights as this statute has been interpreted.

Felix Frankfurter:

Mr. Carter, you said to enable people to assert or vindicate their constitutional rights, you used the words “to enable.”

Now, with reference to that, is the financial position of a person who seeks to assert his right relevant?

Robert L. Carter:

Well, let me put it this way.

Felix Frankfurter:

I’m not saying it is. I just want to know what your position is.

Robert L. Carter:

Our position is that in the context of the kinds of cases that we have, if the Court please, is they involve the individual but the group status that the financial ability of the individual is not important and it’s not important particularly because of the fact that the individual himself, although he may benefit, for example, by a decision that enables him to vote or decision to permit his child to go to school, sometimes does not.

What does happen is that the group — the status of the Negroes in general can improve and we think that this is the vital question and not for us to look and examine as to whether a particular individual —

Felix Frankfurter:

I’m not unfamiliar with your situation.

Robert L. Carter:

Yes sir.

Felix Frankfurter:

But I want to know whether if a person says, “Yes, these are my rights.

These are the rights of my,” what you call group, I’m not sufficient — I’m a man of need, but I’m not sufficiently interested that they’re the burden of a litigation.

I just want to know what your position is.

Robert L. Carter:

Well, insofar —

Felix Frankfurter:

Are you saying that the State may not say that if a man is in a position, financially able, to assert his constitutional rights, somebody else can’t, as it was — as it were propellant into being a litigant?

Robert L. Carter:

Well, I don’t — we have never — I’ve never breached the situation, if the Court please.

All I can tell the Court is that we have not — if a person comes into the off — into an office and says, “We want to — we are interested in this kind of case which involves the right of Negroes — my right being discriminated against to vote —

Felix Frankfurter:

They haven’t asked you any question.

Robert L. Carter:

We do not inquire —

Felix Frankfurter:

I know, but may the State — may the State require you to ask that question?

Robert L. Carter:

I don’t —

Felix Frankfurter:

This are — because, Mr. Carter, when you say “constitutional right,” it’s the constitutional right of every person, White or Colored, Jew, Gentile, or Agnostic, or Catholic to assert his rights in court so long as the courts are open.

That’s his constitutional right.

Now, what you’re asserting here may apply, though not as vividly, to other situations and I just want to know whether you’re asserting that an organization or a person who seeks to finance the assertion of legal rights may be barred from doing that by the State, except when the person whose rights are to be asserted hasn’t the financial means of going into Court and carrying the burden of litigation.

Robert L. Carter:

Well, I would say, if the Court please, that I do not believe that the State — I think that the State, in this particular case has made a — it seems to me a false issue.

I do not believe that the financial ability is relevant because I think that what is happening here is that this is a group activity.

It involves, in essence, where the public is really financing and some of these people that have means are attempting to furnish the financial resources where these rights may be asserted which affect the group.

And, under these circumstances, since these are public interest matters and not matters of individual, personal and private concern, I do not think that the State has a valid issue in terms of saying that some of these people here make $5000 a year —

Felix Frankfurter:

You’re not saying — you’re not saying or are you saying that the State of Virginia, the Commonwealth of Virginia is singling out the NAACP in this legislation.

Are you saying that?

Robert L. Carter:

Oh, yes, I think I haven’t got — we — I haven’t been (Voice Overlap) —

Felix Frankfurter:

Well, that’s a real — I mean, that’s a real equal protection (Inaudible).

Robert L. Carter:

I just —

Felix Frankfurter:

If you are saying that, that’s a totally different argument.

Robert L. Carter:

I think that the — and I’ll have to — my time is been up some time.

Earl Warren:

Well, Mr. Carter, your time is up but I’m going — because we’ve taken so much time questioning, you may have five minutes of rebuttal to summarize your argument if you — succinctly if you will.

Maybe we won’t ask you so many questions at that time.

Robert L. Carter:

Thank you, thank you.

Earl Warren:

Mr. Wickham, and of course you may have five minutes extra, too, if you wish it.

Henry T. Wickham:

Thank you.

If the Court please, I would like to say at the outset that we’re not here complaining of the results that may be obtained by the petitioner.

We are here complaining about the method by which they obtain the results.

This question — this case involves two questions.

The first is whether or not Chapter 33 is unconstitutional on its face and, second, if it’s not unconstitutional on its face, whether or not its application to the petitioner makes it unconstitutional.

The Supreme Court of Appeals of Virginia decided three things it seems to me, in its opinion.

First, that Chapter 33 was not unconstitutional, second, that the — it did apply to the activities of the petitioner, as shown by the evidence in the record, and three, that it did apply to the attorneys employed by the petitioner.

It also held that the activities shown in this record, not only violated Chapter 33, but also the canons of legal ethics.

There are two parts of Chapter 33. First, there was the amendment of Section 54-74 Code of Virginia.

Now, that section was first found in the Code of Virginia of 1849, I believe, and from time to time thereafter, it was amended.

It deals specifically with the malpractice or unprofessional conduct of licensed attorneys.

The 1956 Amendment to that section stated that, in essence, that an attorney was guilty of unprofessional conduct if he accepted the case from a runner or capper or from someone who had obtained that case or gotten that case in violation of Section 54-78 of the Code of Virginia which is — defines running and capping.

It appears to me that the activities of the petitioner and their attorneys, as shown in the evidence of this case, violates Section 54-74 before the amendment or after amendment, or under canons of legal ethics.

It doesn’t really make much difference.

I can’t see where there would be any change in the decision if the 1956 Amendment had not even been made.

Section 54-78, whether it applies to the laymen in the unlawful solicitation — for their unlawful solicitation of business for attorneys, the statute refers to persons and corporations but I really think it — and, of course, there are some attorneys who run for other attorneys, I suppose, but that statute really deals with laymen as a misdemeanor to violate these provisions.

But once again, it would appear to me that the activities as disclosed in the record before this Court, it would indicate that the petitioner would have violated Section 54-78 prior to this 1956 Amendment which in effect only stated that an agent of running capper could not solicit business for the organization for — that an agent of an organization cannot solicit business for that organization or attorneys employed by that organization.

William O. Douglas:

Are you familiar with the Railroad Brotherhood cases in California and Illinois?

Henry T. Wickham:

Yes, sir.

William O. Douglas:

Would 54-78 preclude those practices of the Brotherhood?

Henry T. Wickham:

Well, as I read the cases, that I in fact have referred to in the respondent’s brief, I do not think so.

William O. Douglas:

What would exempt them from 54-78?

Henry T. Wickham:

From 54-78?

William O. Douglas:

Yes.

Henry T. Wickham:

Well, the — it would seem to me that, number one, as I understand it, they did not pay attorneys for the client.

Henry T. Wickham:

As I understand those cases, they haven’t — the Brotherhood has no control over litigation and furthermore, the Brotherhood does not actually solicit for its particular lawyer the business — the client’s business for litigating in the Court.

William O. Douglas:

Would 54-78 apply to an association of taxpayers to contest assessments made by various boards or commissions in Virginia?

Henry T. Wickham:

The provisions of Section 54-78 apply to — it seems to me, to everyone that has engaged in certain activities.

William O. Douglas:

It adds “in which it has no pecuniary right or liability.”

I was wondering what category of cases that includes?

Henry T. Wickham:

Well, I think what they’re driving at, for example, it’s a Virginia case involving the Richmond Credit Association.

They employ lawyers and they had no pecuniary right or liability in a particular litigation.

Their clients were creditors who owed money by various concerned people and — but this Credit Association employed attorneys and sent the clients to the attorneys.

Hugo L. Black:

Did what?

Henry T. Wickham:

Sent the client or the creditor to the attorney who was paid by the Credit Association.

I think that’s an example of where a commercial, I might say association as opposed to a nonprofit corporation as this petitioner, would equally apply.

I can’t follow the argument at all, of the petitioner that these statutes are a denial of equal protection because I see nothing in these amendments in either one of these sections of the Code that classify anybody.

There’s no classification in them really, except that in 78 you have that pecuniary — you’ve got that pecuniary interest or liabilities there, but that is a very, very broad classification in which, I would say, everybody would fall.

I can’t see the equal protection argument in this case at all and it seems to me that the real issue in this case is how the petitioner and how their attorneys and employees, how they operate, I think they can – there is talk about — being a runner of the business is — I don’t understand it.

I mean, they can operate in the State of Virginia just like anybody else can operate in the State of Virginia.

They could apply to the Virginia State Bar to become a legal aid society whether it’d be granted, I don’t know.

They’d have to follow the rules laid down by Virginia State Bar but it seems to me that —

Hugo L. Black:

Laid down by the Virginia State Bar?

Henry T. Wickham:

Yes.

There’s a statute in Virginia that all legal aid societies has to — the Virginia State Bar is the integrated bar, the arm of the State, and controlled by the Supreme Court of Appeals of Virginia.

And so, the integrated bar has been delegated the duties of establishing rules and regulations to regulate legal aid societies.

But it seems to me that petitioner is saying here that, first of all, we are defending constitutional rights so that makes us different from the next person and, number two, we are a nonprofit corporation, and makes us different from another person and number three, nobody gets any gain or profit from our activities.

So, for those reasons, we are exempt from — come within the statutes in question, Sections 54-74 and 54-78.

Hugo L. Black:

Is it your position, I assume it is, that a group has no more right to form this together, for instance, to protect certain religious people from alleged mistreatment or certain races from invidious discrimination which deprive them of their constitutional right to vote?

There’s no difference between that and groups which go out and solicit business for — in general for a lawsuit between two people over a hog or a cow or something of that kind?

Henry T. Wickham:

I say that I have found no case that has drawn that distinction to date, Your Honor.

Hugo L. Black:

I understood that.

Henry T. Wickham:

Yes, sir.

Hugo L. Black:

I was asking you.

Henry T. Wickham:

I don’t see why there should be any difference in your procedure or your professional conduct.

Henry T. Wickham:

It should be right down — it’s a right way and a wrong way or proper way and an improper way.

And —

Hugo L. Black:

Yes, the wrong —

Henry T. Wickham:

Regardless of the type of litigation —

Hugo L. Black:

— the wrong way is the way which the law forbids if the law is constitutional.

Henry T. Wickham:

That is correct, sir.

Hugo L. Black:

But you see no right — no more right on people who are interested in carrying out a general campaign to protect certain rights of a citizen as a citizen against the government as a government and people who are trying to solicit business just for the general run of the minds conventional lawsuit?

Henry T. Wickham:

It would seem to me that the procedures and the proper conduct — professional conduct of attorneys should be the same regardless of the type of litigation.

Hugo L. Black:

Well, some people might think it is high professional conduct if you’re just going to talk about ethics and so forth and what’s right and what’s wrong.

Some people might think that many do as indicated by the history of groups or association to protect civil rights that it’s not anything degrading in trying to get things decided that are necessary to protect rights embedded in the Constitution made for citizenship.

But, I don’t think you can dismiss it.

Henry T. Wickham:

Well, I —

Hugo L. Black:

Maybe it’s not relevant.

Henry T. Wickham:

No —

Hugo L. Black:

But not only can you just dismiss it —

Henry T. Wickham:

No, sir.

I think —

Hugo L. Black:

— from the idea that the man did — the man who would believe in that, somehow, there’s something wrong with him professionally.

Henry T. Wickham:

Well, I don’t — I didn’t mean to indicate that.

Hugo L. Black:

I didn’t think —

Henry T. Wickham:

— and I hope I didn’t say that, sir.

I just say that an attorney should proceed along long-established methods that have been long approved by the canons of ethics.

Now, these statutes here will do nothing more than embody or codify the canons of ethics whether they are promulgated in our state or by the canons of ethics of the United States.

These statutes do nothing more.

Felix Frankfurter:

Every criminal case involve a so-called civil rights embedded in the Constitution — every criminal case.

Henry T. Wickham:

Well, there are few cases today that don’t.

I think they don’t have some touch on that one way or the other.

But what we object to here is — or his — to state it in another way, if the NAACP and its attorneys, they want to offer their services free of charge, in my opinion, they have — it hasn’t violated Chapter 33 but none of the canons of legal ethics, but what’s the situation here?

These cases are channeled to the chairman of a legal committee which incidentally handles all the cases.

He brings in two or three others in a community in which the case may arise.

Henry T. Wickham:

All of which — all of whom are on the — this legal committee.

They get a per diem of $60 a day.

That’s peanuts according to one statement in the record.

On the other hand, another statement in the record said that they are very profitable.

His associations were on the legal committee.

It seems to me that — I happen to read not long ago that the average lawyer in Richmond grosses $14,000 a year.

That’s just about $60 a day.

So, I don’t think that they can prove $60 a day and that is — they mentioned somewhere in petitioner’s brief a purpose restraint of trade will make them guilty – they are guilty of restraint of trade that they channel all these business to their own group.

Getting back to the Brotherhood case, I think that they could — the petitioner could recommend attorneys.

Felix Frankfurter:

What about my hypothetical case, Mr. Wickham?

It’s — to me not a (Inaudible) suggestion but some members of the University of Virginia Law School might be interested in this subject.

It’s not too fanciful an assumption, is it?

And suppose they constitute themselves, the committee of the law schools to awaken Negroes in the State to their rights and make speeches and give general advice and also say they have a list of lawyers who they know are responsible and charge small fees for a public service to advice indigent Negroes who wanted to assert their rights.

Would that come within the statute?

Henry T. Wickham:

No, sir.

I think that would be perfectly alright.

Hugo L. Black:

Why?

Henry T. Wickham:

Number one, they’re helping indigent people.

Here, we have no record of that.

Hugo L. Black:

Do you think that’s the key to that?

Henry T. Wickham:

That is one element.

I think we have — I haven’t related all the facts yet.

I think this record shows that — and I think we have to consider the facts as a whole, possibly.

If you take one — pull one out, well, maybe that in of itself might not be sufficient but when you consider them all, it would seem to me that the activities clearly violate the statute as well as the cannon of ethics.

One of them is that the facts that these people — the record shows that these people they help were not indigent and they concede that they don’t even bother themselves with determining that fact.

The record shows that the petitioner and their attorneys, they go to a meeting in Charlottesville and while they say there that there is a gathering to assert their constitutional rights, it so happens that they also pull out authorization forms at the same time, “just sign your name here,” and they already got the legal committee’s name on the authorization slip or maybe they don’t.

They take it back to Richmond and they fill their own name, whatever name they want to fill in, as an attorney representing these people.

Some of these people never knew who represent them.

(Inaudible)

Henry T. Wickham:

Authorization to represent — for the attorneys to represent their client.

Henry T. Wickham:

It was a form that was drawn up by the State Conference for the NAACP.

Hugo L. Black:

When was that?

Henry T. Wickham:

Sir?

Hugo L. Black:

When was that?

Henry T. Wickham:

When was that drawn up?

Hugo L. Black:

When was that — when did that happen?

Henry T. Wickham:

Well, it happens — if the — it happened in Charlottesville.

It have —

Hugo L. Black:

When?

Henry T. Wickham:

I think it was back in 1956 or 1957, I’m not sure.

Hugo L. Black:

When was this law passed?

Henry T. Wickham:

This law was passed in 1956.

I frankly don’t know.

It happened before that.

Actually, it happened — I mean, another instance is the Prince Edward case which is a part of the Brown decision. It happened in that particular case, too, which started back in 1951.

Hugo L. Black:

Suppose a group of citizens should meet in Richmond and then offer — and a number of other citizens hold public meetings and they say, “We’re going to take up fund here and we want every citizen who will — is willing to decide they have — to bring about the kind of litigation necessary to protect the rights of people to vote who are deprived of it on the count of their color, we’re going to offer to hire them lawyers.

We will hire them lawyers out of this money, whether they are indigent or not” and a lawyer takes employment.

Would he violate this law?

Henry T. Wickham:

These people, down and off they go — they’re going to employ the attorney for the —

Hugo L. Black:

Yes, they meet and say, “We are much interested.

We think there’s been a bad suppression of the rights of certain people here with their right to vote.

The only way we see to correct it in addition to public sentiment is to decide to institute lawsuits in order to —

Henry T. Wickham:

I think that they’ll be violating — yes sir, because, they would then be controlling the litigation and —

Hugo L. Black:

That’s what I —

Henry T. Wickham:

— you’d lose your relationship of —

Hugo L. Black:

I asked you that because I thought that’s what your position is.

Henry T. Wickham:

Yes, sir.

Hugo L. Black:

Yes.

Felix Frankfurter:

Would it be necessary they control litigation?

Henry T. Wickham:

Well, not — it seems to me that you almost have to —

Felix Frankfurter:

MI mean that — that isn’t a matter of law.

That’s a question of what the circumstance is —

Henry T. Wickham:

It’s a question of —

Felix Frankfurter:

— whether they would or wouldn’t.

Henry T. Wickham:

It’s a question of fact.

Felix Frankfurter:

Yes.

Henry T. Wickham:

Frantically, I think, but it seems to me that as a practical matter that is almost a concluded presumption if somebody else is paying that you lose control.

That seems to be the evil that in most of the cases I’ve read in various jurisdictions and the Brotherhood cases with one or two of them that the mere fact of someone else paying the attorney that you lose control because the attorney looks to the person who’s paying him rather than his client.

Felix Frankfurter:

That the Illinois — that’s precisely the ground of distinction that the Illinois Court put.

Henry T. Wickham:

Yes, sir, that’s correct.

Felix Frankfurter:

That it wasn’t true there, was it?

Henry T. Wickham:

Sir?

I —

Felix Frankfurter:

I thought that’s the distinction that the Illinois case took.

Henry T. Wickham:

Well, that was — as I understand the Illinois case is — that was one thing —

Felix Frankfurter:

That they were not controlling it.

Henry T. Wickham:

That they said that the Brotherhood could not do it.

It would be to pay the —

Felix Frankfurter:

That’s suppose —

Henry T. Wickham:

Pay the attorney.

That’s right.

Felix Frankfurter:

That’s what I’m saying.

That’s why I don’t see why you say it’s a conclusive presumption.

The fellow who gives advice would control the litigation.

Henry T. Wickham:

I read that the Court’s opinion would indicate that it was a conclusive presumption because they said that they wanted all ties —

Felix Frankfurter:

But didn’t he–

Henry T. Wickham:

— severed between the attorney and the Brotherhood.

Felix Frankfurter:

Well, in that case, did they say that was illegal in Illinois?

Henry T. Wickham:

I should say they certainly implied it very strongly because they laid down the rules under which the Brotherhood could operate.

Felix Frankfurter:

Yes, but one of the rules was that they should not control the litigation.

Henry T. Wickham:

That’s right.

By, number one, paying the attorney, as I read the case.

Tom C. Clark:

And they couldn’t —

Felix Frankfurter:

They couldn’t solicit.

Tom C. Clark:

They couldn’t circulate power of attorney to (Inaudible)

Henry T. Wickham:

Yes, sir.

Tom C. Clark:

(Inaudible)

Henry T. Wickham:

That’s correct.

That’s correct and that’s exactly what we are here complaining that what the petitioner and the attorneys are doing in Virginia is exactly what the Illinois Court said that the Brotherhood could not do in Illinois.

Tom C. Clark:

In one point I didn’t understand is the — I’d like to get it cleared up.

In Illinois, they said they might forget the fact.

Could that be possible under this statute?

Henry T. Wickham:

Yes, sir.

I think it could ultimately depend upon a question of fact that they continually suggested there that it’s the same legal committee, for example, I think that you’d have to build that up to — and then determine whether or not there was a pattern set, but normally I think it would be perfectly proper under this statute for them to suggest competent attorneys.

William J. Brennan, Jr.:

Well suppose, Mr. Wickham, they continued to suggest the same legal committee that did not pay them.

Henry T. Wickham:

I think you get into a close case, sir.

William J. Brennan, Jr.:

Even if they did not pay them, even if the petitioner did not pay?

Henry T. Wickham:

No, sir.

If the petitioner did not pay, I think that it’s possible that they would not be guilty of running and capping.

It’s a — I think it’s a — of course people suggest, at least a John Smith, a layman might have three attorneys in Richmond he thinks very highly of and somebody comes to him to ask him about an attorney and he might have those three and suggest them forever and ever, and I don’t think he would be guilty of running and capping.

William J. Brennan, Jr.:

Well, let me see if I get that.

Does that mean then everything that you say that this record shows, the petitioner has done or might be done by the petitioner without violating the statute if the petitioner stopped paying any compensation to the attorney?

Henry T. Wickham:

That’s correct, sir.

I would sum up and I’ll be through, sir.

I think, one, that they could continue their present operation if they paid their attorneys nothing, in other words, if it was a true charity case.

Number two, they could do, as suggested in Illinois, they could recommend attorneys to these people who come to them.

Number three, if John Smith comes to them and said, “I’ve got a bad law case here and I’m an indigent and I need some money.”

I think it maybe they could give him the $500, or whatever it might take, and he can put it in his pocket and go on his way and choose his own attorney.

So, there are three methods, it seems to me, by which the petitioner and their employees and their attorneys can operate under these statutes and under the cannons of professional ethics.

And it seems to me that the mere fact alone that they’re asserting constitutional rights, to me, would not be such a matter as to give them a different method of procedure than the other members of the legal profession have.

Potter Stewart:

How does the ACLU operate?

Have you — do you know as a matter of fact, I — the American Civil Liberties Union?

Henry T. Wickham:

No, sir.

I don’t know.

Potter Stewart:

You just talked about a different method of procedure from what other people have and I wondered how similar their —

Henry T. Wickham:

I just don’t know, sir.

Potter Stewart:

— operations were to these.

Henry T. Wickham:

I wouldn’t venture a guess.

Felix Frankfurter:

Have you a statewide — this is another form of that to Justice Stewart’s question, have you of statewide Civil Liberties Union or whatever it’s called or rather locality that have legal aid society in Virginia?

Henry T. Wickham:

They have — as I understand the legal aid societies are conducted by the local bar associations–

Felix Frankfurter:

The local bar.

Henry T. Wickham:

In most all of the instances then I would — in conclusion, Your Honors, I respectfully request and submit that the decision of the Court of Appeals of Virginia should be affirmed.

Felix Frankfurter:

Before you sit down, Mr. Wickham, I’d like to ask you — address yourself to what Mr. Carter claimed, but did not have time to expand and argue is namely that whatever maybe the justification for a general statute, (Inaudible) for soliciting — solicitation of litigation that, in the context of everything, that’s particular about the territory, this was especially directed to the NAACP and, therefore, falls as a clear case of unequal protection of the law.

That is that it was singled out, if you had a — not in terms but in fact.

What do you say to that?

Henry T. Wickham:

Well, I say, Your Honor, I see nothing in the record that would indicate that.

He talks about massive resistance and government standards program.

It was the government at that time.

The record would indicate that the members of the legislature from (Inaudible) County introduced this particular statute and I’ve never heard him being accused as being the — on Government Standards Massive Resistance Team.

So, that’s one answer to Your Honor and of course, there again, another answer to me is that the motives are not material here.

That you just read the statute and see that there’s no discrimination on its face and therefore we would have to go no further.

And —

Felix Frankfurter:

What about its discrimination in its enforcement?

Henry T. Wickham:

Well, that’s another problem.

Felix Frankfurter:

But if there is discrimination in enforcement then there’s something wrong.

Henry T. Wickham:

Well, it would — it was — it would fall or it would be invalid under that set of facts.

Felix Frankfurter:

What do you say as to that?

Henry T. Wickham:

Sir?

Felix Frankfurter:

What do you say on that count or on that basis?

Henry T. Wickham:

Well, of course, the statute never been enforced as of today.

Henry T. Wickham:

There’s been — never been an injunction as a matter of fact.

It’s just always been an agreement that the statute would not be enforced.

Felix Frankfurter:

And this is —

Henry T. Wickham:

So, they’ve never been charged with anything.

They’re the ones that brought this litigation along —

Felix Frankfurter:

They wanted to —

Henry T. Wickham:

— for determination and as matter of fact, our Court has not pointed to any particular section or clause or sentence of this statute that the petitioner violates.

And — I mean, it gets me back to the point that, without these amendments, these sections — and it gives you away from an evil motive part, too, without these amendments, the activities shown by the record would indicate that the old Section 54-74 and 54-78 have been violated.

And that’s all our Court has stated, as well as the violation of the canons of ethics.

Potter Stewart:

Does this sub —

Felix Frankfurter:

There’s no injunction against them?

Henry T. Wickham:

No, sir.

I mean, against us?

You mean against this Fund?

Felix Frankfurter:

No, against petitioner.

Henry T. Wickham:

No, sir.

They —

Felix Frankfurter:

I thought I heard him say that —

Henry T. Wickham:

He said somebody asked for an injunction —

Felix Frankfurter:

Yes.

Henry T. Wickham:

I believe, as distinction that the Fund didn’t.

Felix Frankfurter:

Yes.

Henry T. Wickham:

I didn’t know that was the distinction in that case, but it’s immaterial.

It’s just declaratory judgment that was brought — action was brought.

I’ve forgotten now whether an injunction was — I don’t think injunction was ever argued.

I mean, it was — it’s been agreed all along among counsel.

Felix Frankfurter:

You’re saying the State hasn’t moved against it.

Henry T. Wickham:

That’s correct.

Felix Frankfurter:

But they brought a proceeding in the District Court.

He called it a threat because of this overhanging cloud of this legislation to get it enjoined and then, via this Court, they were remitted to getting a construction, a part of the legislation through your Supreme Court.

Felix Frankfurter:

That’s where we are now.

Henry T. Wickham:

Well —

Felix Frankfurter:

But you never —

Henry T. Wickham:

No, sir.

This action — this 33 never came up.

The three-judge District Court dismissed this particular chapter that is now before the Court.

Felix Frankfurter:

Yes.

Henry T. Wickham:

So this has never been here before on —

Felix Frankfurter:

In connection with their series of litigation.

Henry T. Wickham:

That’s right, yes.

Felix Frankfurter:

They said they want a declaration and they say, even in that proceeding, it becomes relevant, I doubt they’ll say something about it but I thought his contention was that that was central contention that NAACP — while the legislation in turn is general, the target is NAACP.

If that is so, as you naturally said, that would be bad, wouldn’t it?

You can’t, on the cover of general law, single out a particular enterprise (Voice Overlap) —

Henry T. Wickham:

That’s correct but my position is, of course, that you can read the statute and it’s very clearly applies to everyone.

Potter Stewart:

Has this statute ever been enforced against anybody?

Henry T. Wickham:

No, sir.

Potter Stewart:

How about in its form before the 1956 Amendments?

Was it ever been enforced against anybody?

Henry T. Wickham:

Yes, I’m sure it has been.

Potter Stewart:

I don’t believe you cite any cases from — between you and your (Voice Overlap) —

Henry T. Wickham:

Well, yes, sir.

It’s the Third District Committee against — Camel against the Third District Committee.

It was enforced against that district creditor.

Potter Stewart:

Was that entered?

Henry T. Wickham:

Yes, sir.

I think no, it’s a — the one I know now.

I’m not sure about the Credit Association.

I’m here — I mean, I am, too but the Camel against the Third-District Committee was another case.

Potter Stewart:

And those were under the old statute?

Henry T. Wickham:

That was under the old statute, yes, sir.

Henry T. Wickham:

That case was under the Court of 1942.

It had a different section number.

Hugo L. Black:

May I ask you, Mr. Wickham, as to this paragraph of Judge Soper’s opinion that this was the correct summary of what you would say would be covered by this law on page 35 (a), in brief, the association in various forms publicizes its policies against discrimination and informs the public that it will offer aid for the prosecution of a legitimate complaint involving improper discrimination.

Thus, it is generally known that the State (Inaudible) will furnish money for litigation if the proper need arises but the association does not take the initiative and does not act until some individual comes to it asking for help.

Would that be covered by your law?

Would that outlaw them and outlaw the — and make it illegal for an attorney to accept this (Inaudible)?

Henry T. Wickham:

That and nothing more, I think, would be personal profit.

It’s — the next step might violate the law.

Hugo L. Black:

What would have to be added to that, under your interpretation of the law?

Henry T. Wickham:

The furnishing of attorney and the paying of an attorney.

Hugo L. Black:

Well, they say — he said here that they let it know that they will furnish money for the litigation as the proper need arises.

Henry T. Wickham:

Well, if they furnished — no.

Well, it all depends how you interpret “furnishing the money” and if the petitioner will furnish the client with the money and let him go off and pick his attorney, well, that’s perfectly proper.

Hugo L. Black:

Do you mean that —

Henry T. Wickham:

But —

Hugo L. Black:

That they can do all of this just so they don’t tell him what lawyer to get?

Henry T. Wickham:

That’s the same (Voice Overlap) —

Hugo L. Black:

That’s your understanding of the law?

Henry T. Wickham:

Or they can furnish him the lawyer if the lawyer’s not paid.

Hugo L. Black:

Does the law —

Henry T. Wickham:

It’s a charity case, I mean.

Hugo L. Black:

Well, of course not admitted, (Inaudible) where a lawyer serves without pay.

Henry T. Wickham:

That’s correct.

Hugo L. Black:

Too frequently.

Henry T. Wickham:

That’s right.

Well, of course, that’s when you get your legal aid society comes into play, but I might mention that —

Hugo L. Black:

But a legal aid society has no interest in just particular types of cases such as this group and other groups.

Henry T. Wickham:

That’s right, though I’m not sure that (Voice Overlap) —

Hugo L. Black:

(Inaudible)

Henry T. Wickham:

A particular legal aid society might not be approved by the proper authorities.

Henry T. Wickham:

I mean, that’s — but I might point out —

Hugo L. Black:

What about the Civil Liberties Union if it sends lawyers?

Henry T. Wickham:

I don’t know how they operate —

Hugo L. Black:

(Voice Overlap) — it lets people know that it will supply a lawyer in cases that are bad enough, pays them —

Henry T. Wickham:

I don’t think it pays the lawyer — I don’t think it —

Hugo L. Black:

I don’t have the (Inaudible)

Henry T. Wickham:

I said suppose it does.

There’s some — these lawyers that work for them, I imagine, get paid.

Felix Frankfurter:

They’re always getting paid.

Potter Stewart:

Doesn’t it often get into cases after they’ve started the (Voice Overlap) —

Henry T. Wickham:

Well, that was just — quite getting ready to say, Your Honor, it seems my only recollection on this subject is that they come in as amicus curiae quite often.

I never had an experience —

Felix Frankfurter:

Well, they get into cases (Inaudible) they get into cases for indigents and they get into cases by consent, as Justice Stewart’s application to get started.

They were allowed to argue that they hire other cases for the consumer’s relief.

There’s — a lawyer might associate himself, but I had a very sad experience (Inaudible).

Counsel is supposed to argue.

The Attorney General of the State did think “it’s perfectly beyond my control.”

He conducted the litigation and he took steps (Inaudible).

Henry T. Wickham:

I’d like to add one thing, if I May, Mr. Chief Justice that —

Earl Warren:

You may (Voice Overlap) —

Henry T. Wickham:

In connection with the question that Mr. Justice Black asked in saying the summary of evidence of Judge Soper in the Federal District — this record before this Court, it contains some 300 more pages of record which we think clearly show that the activities violate Chapter 33.

Hugo L. Black:

What I was wondering was what in addition to this constitutes the core of the violation if there is something that has to be added to what he said —

Henry T. Wickham:

The —

Hugo L. Black:

As I read to you.

Henry T. Wickham:

Yes, sir.

You want me to answer that question?

Hugo L. Black:

I’m just wondering, yes, if it’s not too much trouble, if it is, don’t.

Henry T. Wickham:

Well —

Hugo L. Black:

It might not be possible while your —

Henry T. Wickham:

As I understand it, sir, it depends on what Judge Soper meant by furnishing money to pay their attorneys if they furnish money directly to the attorneys, we say it violates Chapter 33.

Hugo L. Black:

It’s violated if they furnished it directly to the attorneys, but not if —

Henry T. Wickham:

If they —

Hugo L. Black:

Not if they let the client have it to get the attorney.

Henry T. Wickham:

That’s correct, sir.

Hugo L. Black:

Even though they ask him to get a certain one?

Henry T. Wickham:

Even though the client asked for a certain attorney?

Hugo L. Black:

Even though the client — the organization designated an attorney they want him to hire.

Henry T. Wickham:

I think that would be a violation of Chapter 33.

Hugo L. Black:

You think that violate —

Henry T. Wickham:

Yes, sir.

Earl Warren:

Mr. Carter, if you’d like to summarize your argument, if you wish, you may.

Robert L. Carter:

If I may.

First, I’d like to emphasize one point and that is that this Act, as we attempted to indicate was enacted to single out the NAACP and to stop it from engaging in the — on behalf of people in the activities of bringing the school desegregations and so forth.

And, I think this is — I will only allude to it.

It is set out by — in Judge Soper’s opinion, beginning at page 40 (a) and which is appended of the petitioner’s brief.

Hugo L. Black:

40?

Robert L. Carter:

40 (a) in the — at the end of the petition.

Secondly, we contend that this — in other words, this statute was passed to enable the State to maintain its program of segregation and I want to point out to the Court, if I may, that what is involved in this is that what’s happening with the — with petitioner organization is that a Negro, as a group in Virginia, and I think this is a fact, are engaged in a struggle with the State for their constitutional rights.

What has happened with the petitioner organization is that they have come together in an effort to collectively be more potent both in terms of advocacy and also in terms of bringing these matters before the Court when they cannot get redress in any other manner.

Now, it seems to me that this is the specific thing which this statute is striking at and condemns and what the result of the statute seems to upholding the statute what Virginia wants is that while it may — while the State may use all of its resources that are available to maintain the status quo into these relations that Negroes will not have the benefit or the support of an organization such as petitioner’s in order to attempt to bring this matter before the Court where this validity of these kinds of acts will be looked at.

We also think that the issue control, which I think Mr. Justice Harlan raised, we don’t think that this is really an issue in this case because, in the kinds of cases in which the petitioner supports his interest is identical with the interest of the plaintiff and there cannot be in any way that we can see, cannot be and has not been demonstrated by this record in anyway in which there can be any conflict with regard to this.

We say we don’t control the litigation because the petitioner doesn’t control it because it’s between the lawyer who’s handling it and the plaintiff.

But there is an identity of interest which is not true in those areas in which the question of control has arisen.

I might also point out to the Court, in terms of the reply brief which we have filed, that, in that case, that 54-78 has been, apparently is being applied to an attorney who is — who for activities which he engaged in on behalf and in litigation sponsored by the NAACP, the disbarment proceedings has been brought against this particular individual and that therefore, insofar as one of the district bar committees is concerned, that this new amendment is being utilized to single out attorneys that have operated for the association.

And thereby, it seems to us, to prevent the kind of litigation which had been traditionally been brought before the Court to be adjudicated, raising questions of racial discrimination and so forth.

We therefore believe, if the Court please, that the statute has been wrongly construed that, as construed, the statute is violative of the rights of petitioners and its members to due process, equal protection, to — that it denies them effective — a right to effectively come together as a group and advocate the elimination of segregation.

And in fact, what it does do, we think, is to deny access to the courts to a large body of Negroes for the adjudication of their rights which if petitioner does not bring these matters to the courts, they will not be adjudicated and litigated.

Felix Frankfurter:

Mr. Carter, please tell me whether this is a fair statement of what your argument produce in itself that at least one person will listen to you closely, namely that the NAACP in effect — mind you, in effect — NAACP in effect is trying to do or trying to bring to pass the protection of rights which the State itself ought to see to it that they are protected and in securing those rights it isn’t — you cannot be restricted to the ordinary rules, the ordinary restrictions, in regard to the kinds of litigation applying to other litigation, plus, the power of this Court to oversee decisions that do not protect their rights.

Is that a fair statement of the case?

Robert L. Carter:

I think so, Your Honor, except for the fact that I would make one call here, if I may, and that is I do not regard this statute as applying the ordinary rules to the conduct of litigation.

Robert L. Carter:

I think —

Felix Frankfurter:

Well, it’s ordinarily at least I’m subject to correction, but I’d always assume that to go out and get people, induce people to bring litigation and conduct their litigation for them and pay the expenses of litigation was something that (Inaudible) are not allowed to do.

Robert L. Carter:

Except in the area, if the Court please, of public interest.

Felix Frankfurter:

Alright.

I’m — therefore you — that’s right so you don’t disagree with what I’ve said in the case.

Robert L. Carter:

Alright.

Earl Warren:

Very well.