Wolfe v. North Carolina – Oral Argument – October 20, 1959

Media for Wolfe v. North Carolina

Audio Transcription for Oral Argument – October 19, 1959 in Wolfe v. North Carolina

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Earl Warren:

Number 7 Lean Wolfe, George Simkins, Jr., et al., Appellants, versus the State of North Carolina.

Mr. Atkins, you may proceed with your argument.

J. Alston Atkins:

Mr. Chief Justice, and may it please the Court.

Today at the outset, I would like to address my remarks in answer to the question of Mr. Justice Brennan which was pending at the close yesterday involving all the facts on racial discrimination.

If Mr. Justice Brennan and Court will indulge me, I would like to make a brief background statement with regard to these additional facts which I think ultimately will show that this identical conduct of appellants, the identical acts of appellants which I held to be a crime in this case have been held by the United States District Court for the Middle District of North Carolina to represent their constitutional rights and that the acts of State’s agents which the State has held to be lawful where an unlawful denial of these constitutional rights under the Federal Constitutions solely on the grounds of race and color.

Now while the appellate process was running its course in connection with the first set of warrants toward the first opinion of the State Supreme Court in this case to which Mr. Justice Stewart referred yesterday, these appellants as plaintiffs have sued in the United States District Court for the Middle District of North Carolina against State’s agencies, City of Greensboro, Greensboro City Board of Education who held title of the land and Gillespie Park Gold Club, Inc. which was operating it and with — about which they have no question of — they’ve also became agents of the State.

The case was found Simkins against City of Greensboro and others the opinion of which is reported in 149F.Supp.562, In due course the case was tried by the honorable Justice J. Hayes in response to request for two types of relief which the appellant’s plaintiffs here asked.

First was a declaration of the rights of the parties concerning these identical conduct here, these are identical acts of playing golf on this golf course and the right of appellants so to play and also the rights of the parties with reference to the conduct of the State’s agencies in interfering with that right.

Second type of relief asked was injunctive relief against any future repetition of this type of conduct about which are declaratory judgment was asked in the first type of relief.

Upon the trial of issues, the appellants prevailed and a declaratory judgment was issued declaring number one but this — these identical acts represented the constitutional rights of appellants and second that the acts of the defendant’s agent says interfering with that right to play was unlawful under the Constitution of the United States and that it was done solely on the grounds of race and color.

Are your clients sole plaintiffs in that (Inaudible)

J. Alston Atkins:

No sir, there were four other plaintiffs.

They were total of ten, but I think that the record in that case and opinion and all of the items showed that the facts of the State Supreme Court say in this case is that this identical conduct was before them.

Judge Hayes on —

All of your clients were involved?

J. Alston Atkins:

All of our — all of the appellants in this case were the six plaintiffs which I mentioned several times in the opinion and findings of fact in that case.

Felix Frankfurter:

Are you saying, what was the determined in that case was res judicata in the subsequent state case in which on the assumption that the same issue was involved — that the same issue was involved, is that the point?

That it was res judicata?

J. Alston Atkins:

I wouldn’t use the word res judicata Mr. Justice Frankfurter —

Felix Frankfurter:

Well, I mean that the issue was determined one way in the prior proceeding to show in the federal court which subsequently became — came into issue to the state court and therefore the issue was foreclosed by the federal — I’m trying to find out what — what the point is.

Is that the point?

J. Alston Atkins:

The point is that this judgment became supreme in our opinion in that —

Felix Frankfurter:

Well, it could become supreme on the — on the area of res judicata, is that it?

J. Alston Atkins:

Well, I’m not as familiar with the verifications of res judicata as to say categorically that I think would be exactly a question of res judicata but we think that the federal court having held — having found by a declaratory judgment that when they were on that golf course, they have a constitutional right to be there.

And that the interference on the States agency is whether that being that was unlawful under the constitution of the United States that the State could not bear after finding that conduct of being a crime and to punish them by jail sentences (Inaudible)

Felix Frankfurter:

It all depends what they found a crime, isn’t that it?

The federal case was about the constitutional right not to be discriminated against in the enjoyment of state activities, is that right?

J. Alston Atkins:

Not generally but it’s —

Felix Frankfurter:

Specifically —

J. Alston Atkins:

Specifically reference to this conduct —

Felix Frankfurter:

I mean, it arouse in connection with the protection against discrimination by a State in the use of its facilities, is that right?

J. Alston Atkins:

I would think the injunction or I went to that point but that — it was a separate — this declaratory judgment built specifically with this specific conduct.

Felix Frankfurter:

It may well be but for instance, that federal judgment didn’t say that anybody could slug somebody else on those golf grounds, could they?

J. Alston Atkins:

No, sir.

Felix Frankfurter:

Alright.

So the question is whether the legal issue was the same and even if it wasn’t the same, it has then a question either of res judicata of independently a violation — infringement of what this Court held since Brown against Allen, is that your — is that it?

I’m trying to find what the constitutional claim is that you make other than the one you made yesterday that the conduct of this trial on the charge of whether essentially was a breach of the thieves or something like that.

J. Alston Atkins:

No, sir.

There was no question about the peaceful conduct of appellants.

Felix Frankfurter:

But I mean, what was the charge?

What did North Carolina charged?

J. Alston Atkins:

Trespass on this property.

Felix Frankfurter:

Alright.

Perfect, thanks.

J. Alston Atkins:

There was no suggestion in this case anywhere that the conduct of appellants was other than peaceful.

Felix Frankfurter:

Well, alright.

It was trespassing.

It was criminal charge not saying that a colored person hasn’t the right the other white person has at least not only that is what was claimed.

That is what the North Carolina prosecuted them for.

So, you may say that’s what it amounted to in effect.

That’s what you are saying.

J. Alston Atkins:

I am saying that Judge Hayes found specifically that that was what happened.

Charles E. Whittaker:

In the Federal Court?

J. Alston Atkins:

In the Federal Court.

Charles E. Whittaker:

Was that the record that the Federal Court put in evidence as a defense in this criminal — second criminal case?

J. Alston Atkins:

I say yes and no, Mr. Justice Whittaker.

In fact, it was the preservation of it in this particular record, as we will discuss.

William O. Douglas:

(Voice Overlap) at the bottom of the page 30 — 33 in the record, in your motion to quash you state that you have (Inaudible) the clerk in the Federal Court of bringing a full record in that case, was that subpoena executed?

Was it —

J. Alston Atkins:

It was executed but permission was not given to present it that on the hearing of that motion.

William O. Douglas:

You mean the Court did the — the trial court denied the —

J. Alston Atkins:

Denied the opportunity.

William O. Douglas:

Where does that denial appear?

J. Alston Atkins:

Well, the motion quash says — requests an opportunity to present and the — and the motion was summarily disposed off as shown on page 108 of the record in the Supreme Court’s opinion.

William O. Douglas:

What page is that?

J. Alston Atkins:

Page 108.

William O. Douglas:

That’s moved in a — the quash and their motion for overrule, is that what you’re referring to it on page 108?

J. Alston Atkins:

That’s right.

William O. Douglas:

So, you — you claim that these paragraph in the motion for quash was a — was attender of that record and of the ruling denying the motion was a denial of attender and refusal —

J. Alston Atkins:

On the — on the hearing of the motion.

Of course the State takes the position that it was not properly and it was there at that time which — an opinion of the Federal Court —

Earl Warren:

May I ask you, was that the only time this was offered during the proceeding?

J. Alston Atkins:

No, sir.

It would —

Earl Warren:

Well then, why don’t you tell us about that?

J. Alston Atkins:

On page 71 of the record where the clerk of the Court was on the stand of —

Earl Warren:

Clerk of what court?

J. Alston Atkins:

Of the Federal District Court for Middle District of North Carolina was on the stand.

You’ll see what happened there.

The full record of it of what was there does not appear in the record, but over on page 79, where it appears that exhibits 6 and 7 were excluded with objection to them was sustained.

The fact was that those exhibits 6 and 7 represented the record of the Federal Court in —

William J. Brennan, Jr.:

(Inaudible)

J. Alston Atkins:

The original documents — no, sir.

William J. Brennan, Jr.:

(Inaudible)

J. Alston Atkins:

What actually happened there did — it did not by some way that —

William J. Brennan, Jr.:

(Inaudible)

J. Alston Atkins:

Yes.

William J. Brennan, Jr.:

Well, that means (Inaudible)

J. Alston Atkins:

I was not in the case under the — in the state courts so I don’t know exactly what happened, but I have examined the original transcript of the record in that case and I have attached for you to see photo — I grabbed copies of two pages when that transcript which show that what these exhibits 6 and 7 were in fact they represented the judgment and the findings of fact — pages 97 and 98 in the brief found the other — bottom of the page let the record show that being offered in evidence of these, that is being offered in evidence, page 98 of the brief on the merits.

Now, —

William J. Brennan, Jr.:

Well, that (Inaudible)

J. Alston Atkins:

6 and 7, that showing in — the — on page 98 near the bottom of the page.

Earl Warren:

Were 6 and 7 is the judgment in the findings?

J. Alston Atkins:

That’s correct.

Earl Warren:

Were they offered in —

J. Alston Atkins:

They were offered in —

Earl Warren:

Were they rejected?

J. Alston Atkins:

They were rejected.

Earl Warren:

The record shows it?

J. Alston Atkins:

The record shows it.

I don’t think the Attorney General said in fact that they were not offered in — these pages that are photographed here are (Inaudible) original transcript of the evidence as furnished to counsel —

William J. Brennan, Jr.:

Well, as I understand the Attorney General’s brief and whether what — that you have say to this.

It’s in the fact that while this record has says you have pointed it out to it, it’s nevertheless also the fact that 6 and 7 physically were not before the Supreme Court of North Carolina and that the fact that they were not before that Court explains largely the conclusion it has reached, then I think the Attorney General does not argued that since they were not before the North Carolina Supreme Court that its his judgment we’re reviewing, we can’t take any notice of them either.

J. Alston Atkins:

They were not falling in this record.

They were tendered to — to the Supreme Court on the theory of judicial notice and the Court did not take judicial notice.

There is one little item that I think is pertinent to this because as I understand the decision of this Court that — a State Supreme Court must be bound by its rule and decisions that it cannot, it’s forbidden to consider matters which technically do not appear in the physical record.

But, that if the State Supreme Court does have discretion to consider matters which do not appear in the physical record, that then this Court may look into the matter and it’s not concluded absolutely by such inadvertences as appear here.

William J. Brennan, Jr.:

Well, do you suggest we look at them, Mr. Atkins by taking judicial notice of the federal record, is that it?

J. Alston Atkins:

Some of the important items are in this record.

Items which I’m —

William J. Brennan, Jr.:

Well, specifically, is there anything contained in 6 and 7 which you say is a —

J. Alston Atkins:

Yes, sir.

Yes, sir and I was just giving this background before I come to say in the record with — the crucial items or say the some of the crucial items formed these documents.

Now, on page 98 – 94, you see Judge Hayes’ finding of fact number 33.

Earl Warren:

What — what page is this?

J. Alston Atkins:

Page 94 of the record.

So far as I know is –well, controversy that that’s a faithful and accurate reproduction of that finding of fact.

Earl Warren:

But what part — where are you reading from?

Where do you — directing our attention to?

J. Alston Atkins:

On days other than holidays in the middle of the finding of fact.

J. Alston Atkins:

You see the — on page 94, do you see —

Earl Warren:

I don’t — 94 —

J. Alston Atkins:

Of the record.

Earl Warren:

Yes.

Charles E. Whittaker:

(Inaudible)

J. Alston Atkins:

Both.

Charles E. Whittaker:

(Inaudible)

J. Alston Atkins:

Days other than holidays and weekends and greens fees are a dollar and quarter.

White citizens were permitted to play without being members by paying fees above set forth and without paying the extra dollar and without any questions being put to them.

And the plaintiffs applied to be given the same privilege, they were refused on the ground that they were not members but primarily because of their color.

Plaintiffs laid the greens fees on the table in the club house, went out to play and after they got through third hole, the pro in-charge of the golf course ordered them off and they insisted they have the right to play and would not get off unless they were arrested by an officer whereupon the pro had them arrested and they were tried and convicted.

William J. Brennan, Jr.:

Now of course that was never before the jury, was it?

This is — as I understand it — is contained in your motion to set aside the verdict —

J. Alston Atkins:

That’s correct.

William J. Brennan, Jr.:

— after the trial was closed.

J. Alston Atkins:

That’s correct.

There is no controversy about what happened in this case.

As I understand the rules of this Court which is (Inaudible) against Maryland, (Inaudible) versus Illinois decided last term that where there are no conflicts of testimony that this Court is not bound by the conclusion drawn by the lower courts including its verdict of the jury.

Now, on page 92 of the record, here’s the declaratory judgment in the federal case.

It’s the third paragraph of our brief.

As far as I know that there is no question about that being faithful and accurate reproduction of — that declaratory judgment.

Whereas you see the Court said that this will actually (Inaudible) on the plaintiffs there, appellants here, defendants in the criminal case represented a constitutional rights and that they have been unlawfully denied because of race and color.

Now, the next item to which I would like to refer you comes from the opinion of the State Supreme Court itself, I think it’s about line 11 from the bottom on page 115 or the record.

William O. Douglas:

Page 15?

J. Alston Atkins:

115.

On the facts was — presented to him, Judge Hayes issued an oral enjoining racial discrimination in the use of golf course.

Now there are two things about that; number one, there are prior to State Supreme Court who could’ve filed that by ignoring outside the record and looking at the decree and injunction which was just one document, the bottom part of it was the injunction the part was just a declaratory judgment which is — you see on page 92 of the record, but the crucial thing about that is — it seems to me and — and we have asked ourselves a thousand times, is it conceivable great and distinguished judge like an honorable Johnson J. Hayes would have issued an order forbidding discrimination at this golf course where no racial discrimination existed.

If as the State would have this Court believe that its agencies have been (Inaudible) circumspect in opening this golf course to every citizen without into regard to race and color, is it conceivable that Judge Hayes would have enjoined what did not exist at this golf course.

(Inaudible) to show that these two exhibits 6 and 7 were in fact before the trial judge in the sense that they were identified, in the sense that he was asked to make a ruling upon them, in the sense that he knew what the exhibits were and that the denial of the ruling to — of admissibility which appears on page 79 constitutes or deprives what the Supreme Court of North Carolina says of being an adequate state ground.

In other words, that these exhibits were physically in the record, do you argue that?

J. Alston Atkins:

Exactly, Mr. Justice Harlan.

And as — further substantiation of it, in the second paragraph of the opinion of the Supreme Court of North Carolina on page 115, Supreme Court itself said although defendants have the record in that case identified and there is no place in this record that the State Supreme Court could find a (Inaudible) identified that all of the place that have been able to find where the Supreme Court could have found that those records were identified was in the transcript in the trial court photographed a content of which — in the brief 97 and 98.

Now, on this matter of —

Potter Stewart:

Mr. Atkins.

J. Alston Atkins:

Yes, sir.

Potter Stewart:

May I ask you this question of the State practice so that I can fully understand it.

Generally speaking, without particular reference to this case, generally speaking in a case tried in North Carolina, if the trial judge excludes evidence that is offered and if — if you want — if the appellant wants to — claims that was error to exclude such evidence, such documentary evidence whose job is it to present to the Supreme Court what that evidence was?

Whose job is it to make up the record?

Is it the clerk’s job or is it fundamentally the appellant’s job?

J. Alston Atkins:

It’s fundamentally the defendant’s job as I understand.

I am not an authority on North Carolina law but that is my understanding, it is the defendant’s duty to make up the —

Potter Stewart:

To see to it that there are in the record what he wants to present in the Supreme Court of the North Carolina?

J. Alston Atkins:

That’s correct, that’s correct.

Charles E. Whittaker:

(Inaudible) the findings and the decision of the Federal District Court that you referred to?

J. Alston Atkins:

It did not contained them in — in the sense —

Charles E. Whittaker:

In our record.

J. Alston Atkins:

In the sense of having been offered as these exhibits 6 and 7.

Charles E. Whittaker:

Did you move there in any time in the Supreme Court of the State to supplemental the record by insertion of the new material (Inaudible)

J. Alston Atkins:

Not this particular.

As I understand, I was — I was not in the State case was designed stand at no — no motion was made to add these particular documents to the record.

Well, did — did the record before the Supreme Court contained exhibits 6 and 7 as marked for identification even though they were not admitted into evidence?

J. Alston Atkins:

I didn’t quite understand that Mr. —

Did the record that was before the Supreme Court of North Carolina contained these exhibits 6 and 7 as exhibits that were marked for identification, even though they had been excluded by the ruling of the trial court as being admissible in evidence?

J. Alston Atkins:

Do you mean did they include the federal (Inaudible)

Did they physically include two exhibits marked for identification?

J. Alston Atkins:

No, sir.

It did not?

J. Alston Atkins:

No, sir.

Charles E. Whittaker:

As I understand —

J. Alston Atkins:

In fact, it did not include the fact that they were identified when the Supreme Court says that at the top of page 115 that if they were identified, the only place they could find that would be examining something outside the record.

Felix Frankfurter:

May I ask you —

Well, excuse me.

In that connection, I have been looking at page 79 which were Mrs. Kennedy, is it?

J. Alston Atkins:

That’s correct.

If Your Honor please, we would like, if possible, to have a ruling on whether or not these would be admissible.

Court I am going to sustain the objection as to those two exhibits that is 6 and 7, and the 6 and 7 presumably or what the Supreme Court in its opinion on 115 referred to the exhibits as having been —

J. Alston Atkins:

Identified.

— identified but not physically received in evidence?

J. Alston Atkins:

That’s correct.

And, it was page 79 of the record that you printed it here, part of the record that was before the Supreme Court of North Carolina?

J. Alston Atkins:

This is a reproduction, most of this off the record that was before Supreme Court.

So, what you have — what you have, at least you can argue what you have is before the Supreme Court a proffer of two exhibits 6 and 7, a ruling against their immiscibility buy a record that lacks the physical exhibits themselves marked for identification, is that it?

J. Alston Atkins:

Exactly.

That’s — I would like —

Felix Frankfurter:

May I ask you a question Mr. —

J. Alston Atkins:

Mr. Justice Frankfurter, I would like to —

Felix Frankfurter:

(Inaudible) on the question out to you by Mr. Justice Stewart, you would be good enough to turn to page on 105 of the record?

J. Alston Atkins:

Yes, sir.

Felix Frankfurter:

The (Inaudible) is tended by the defendant, (Inaudible) Supreme Court.

To whom was the record tended — the case on appeal tended?

J. Alston Atkins:

To the Solicitor — the prosecuting solicitor.

Felix Frankfurter:

That — that’s what he meant.

In below, we have the record to be acknowledging the service by the Solicitor?

J. Alston Atkins:

That’s correct.

Felix Frankfurter:

So that — if an appeal is taken from the Superior Court, from any Superior Court in North Carolina, the case on appeal is made up by the appealing party in this case the present petitioner —

J. Alston Atkins:

That’s correct.

Felix Frankfurter:

— and it’s submitted to the appellee and if the appellee has any objection, he was (Inaudible) permitted or included (Inaudible) do you then go before the judge?

J. Alston Atkins:

That’s correct.

Felix Frankfurter:

But this here — you or — petitioner made up — the counsel made up this record submitted to the Solicitor of the 18th judicial district and he okayed it, and that’s the basis of the appeal.

J. Alston Atkins:

That’s correct.

J. Alston Atkins:

I’d like to reserve the rest of my time if –.

Earl Warren:

You may, Mr. —

Mr. Moody.

Ralph Moody:

Mr. Chief Justice and may it please the Court.

Before I get down to the State’s contentions in the matter which I would hope to state very succinctly in a very few words, you’re trying my State here and I know you want to try fairly and the — I’m asking you therefore to try them on the things they have before them, the Court, the Supreme Court of North Carolina had before them and what the trial court had before it.

Now, they have put into the — to their brief excerpts, editorials from newspapers.

They put in to their brief parts of the findings of fact that they say that Judge Hayes made in the District Court.

They have put into their brief parts of the declaratory judgment that they read to you and they have also put into their brief excerpts from a manual, if I recall correctly from the work progress of administration.

Now I respectfully say to this Court that none of those things at all were ever before that trial court.

None of those things were before the trial court insofar as this record shows at all.

Certainly, he will not contend to you that the portions of the manual from the works progress administration which I think maybe was used in the federal trial whatever into it introduced in evidence, none of these at newspaper editorials and these petitions and proceedings that they say were had before the City Council of Greensboro, were ever put before the trial court in order — did it ever appear before the Supreme Court of North Carolina.

Felix Frankfurter:

May I infer from your statement which is the (Inaudible) they offered and rejected and claimed that this improperly rejected —

Ralph Moody:

Yes, sir.

I go to — so I say that, too.

Now, —

Earl Warren:

Offered in the trial court –-

Ralph Moody:

None of these — Mr. Chief Justice, let me get to what you are referring to.

You’re referring to these editorials and —

Felix Frankfurter:

The things you’ve said —

Earl Warren:

No, you said — the things you said then —

Ralph Moody:

They were not offered in the trial court.

Earl Warren:

Among them were the judgment and the — a portion of the judgment of the Federal Court and as I understood the counsel, there had been a problem of the judgment of the Federal Court.

Now, do you say there was no such problem?

Ralph Moody:

I say this record — from this record, we can’t tell whether there — Mr. Chief Justice, whether ever was such a — an offer made or not.

Hugo L. Black:

What about page 79?

Ralph Moody:

Page 79, Mrs. Kennedy says “If Your Honor, we would like if possible to have a ruling on whether or not these would be admissible.”

Now —

Hugo L. Black:

And then what did the judge say?

Ralph Moody:

“I am going to sustain the objection as to those two exhibits that is 6 and 7.”

Hugo L. Black:

Then what did your department said, did he accept —

Ralph Moody:

There is an exception there but we don’t — excuse me, sir.

Hugo L. Black:

Is that sufficient under the North Carolina law.

Ralph Moody:

We don’t know what 6 and 7 were.

There’s nothing in this record that identified 6 and 7.

What you heard is what he says to — that 6 and 7 are.

But you — what effect do you attribute to the Supreme Court’s understanding of what those exhibits were by a virtue of the statement on 115?

Ralph Moody:

The Supreme Court — I don’t know where he was reading from in that opinion.

It’s 115 of this record.

Ralph Moody:

115?

Where the Supreme Court says, “Defendants move to set aside the verdict of jury is the basis for their emotion.

They rely on the Simkins against the City of Greensboro, that’s the federal case decided by the United States District Court on March 1957.

Although defendants have the record in that case identified they did not offer —

Ralph Moody:

Well, I think they got that from another part of the record over here which I wish to call to your attention.

I think they got that from the testimony at — of the deputy clerk that they have there at that time.

Mrs. Myrtle Cobb, I’m looking now Your Honor at page 71, Mrs. Cobb is there and she said that she had some records.

She said that it’s her duty to keep in possession the public possession, the records in the case of Simkins and others against The Gillespie Park Golf Course.

I have all (Inaudible) there’s no papers in that case.

Now, there’s nothing there that says their exhibit 6 and 7 may it please the Court.

The 6 and 7 at all is nothing there that ties them with 6 and 7.

She said she happened.

Then, counsel get off into this question which my friend here talked about the other day about examining people as an adverse witness under GS8-50.

And as you will see if you go to 72, they get off into the question of about an adverse witness and we don’t hear about anything anymore until we get over to where Mrs. Kennedy says that she’d like to get a ruling on these, whatever these are and the Court says that he was sustained to 6 and 7.

And as pointed out by Mr. Justice Frankfurter, which is correct, I want them to be the — I subscribe to equal protection law and I don’t think that constitutionally, we can set up a new procedures or event, new motions or things to exclude them for the setting up their federal rights.

I don’t think that for a minute, but, as suggested by Mr. Frank — Justice Frankfurter, they have charge of the preparation of the case what we call the case on appeal.

We have two things.

We have a record which consists of the permanent part of the case, things that we’d like to think of as permanent, the Bill of Indictment, the judgments and things like that and then we have what the case — about we call the case on appeal which consists of the various flexible fluid things that transpire at the trial, motions, evidence, rulings on evidence and things of that nature.

Now, it was up to them to make up their case on appeal.

Had I been in their position, it would have been up to me, and I say that this is not a — an unusual, unheard of anomalous procedure for an attorney who’s get — making up their own case on appeal if they thought some exhibits had been excluded that when — wrongfully excluded and to which they are — wanted an appellate review that they would make an offer or tender of those exhibits for the basis of a exception.

William O. Douglas:

Wasn’t that covered in — I think 103 from the assignments of error in the Superior Court of Guilford County page 103, its folio 104, assignment of error number 22.

Ralph Moody:

Well, that’s the same thing isn’t it Your Honor of with or without these would be —

William O. Douglas:

Sustaining the state of objection, but isn’t that — I don’t know what North Carolina practice but this — isn’t that a proper way of brining up the propriety —

Ralph Moody:

Well, it’s alright.

Well —

William O. Douglas:

— including those exclusion of those exhibits?

Ralph Moody:

You do — yes, it would.

If you had them, that’s a proper way to make an assignment error if you got the exhibits.

You should —

William O. Douglas:

They should be attached to this.

Ralph Moody:

They should be attached so the appellate court can see what you’re complaining about.

You’re point is that — in that on all this — there is nothing to identify exhibits 6 and 7 with the judgment or whatever you choose to call it in the Federal Court proceeding, that’s your point?

Ralph Moody:

And yes, that is my point.

And of course you — I think you have a State record.

I’m not sure if certified here, I believe it is and you will see there is no record of 6 — exhibit 6 and 7 in the State record at all.

The exhibits were there that were sent up.

Now, I think they’re bound by the same rules of practice that I would be or anybody else, and I’ve tried to cite in my brief to show this Court that North Carolina is simply following things that it’s been following all the time and that it is invented no new or anomalous practice to try to exclude these people from a federal — raising a federal question at all.

It’s the same practice that all lawyers have to follow and it’s the same thing that’s been followed all the time.

The same thing is true about their questions — they had some question over there if the — beginning when he was raising this part about closing mouths of witnesses.

(Inaudible) those were our witnesses that they were cross examining and the prosecutor simply objected to evidence of — he tried this case like any other trespass case this record shows it.

He simply objected the evidence of some other colored people that had been down there and that was sustained and they say that’s closing the mouths of witnesses.

At that time, they had never told the Court that now we wish to make a defense.

They had filed a motion to quash.

I’m not overlooking that but the motion to quash is relying upon the efficacy of this declaratory judgment obtained in the Federal District Court and they rely on that as an estoppel among other things and of course an attempt to raise a question on form of jeopardy and various things like that.

But in the motion to quash, I — I there have set forth in my brief case after case to show Your Honors that the motion to quash is not the way to raise a question and that pertains that matters that appear on the face of the record.

William O. Douglas:

That’s North Carolina?

Ralph Moody:

That’s North Carolina law in practice and I have cited the cases way back — considerable distance back before a racial questions ever came to any prominence or — in southern States or in North Carolina to show that that is the practice.

William J. Brennan, Jr.:

Mr. Attorney General is the essence of the State’s position here that this judgment of the — your Supreme Court turns on a state ground namely a failure to comply with State rules of procedure either at the trial or in perfecting the appeal and therefore, that it’s beyond the jurisdiction of this Court to deal with the constitutional question?

Ralph Moody:

Yes, sir.

That’s I think fairly put — rather fairly states my position.

You’ve raised of course — tried to raise other questions here that I don’t think that the — I should burden this Court with going into.

I do call your attention but let me comment just one minute on the facts that they say — talk about the facts over the great deal.

Ralph Moody:

Greensboro and the City Administrative unit which is an educational unit leased the land to Gillespie Park Golf Course.

Now, it wasn’t as bogus lease, a straw lease or a fictitious lease I say for this reason.

The directors of the corporation pledged their own faith and credit and put over $100,000 into the development of the property and built a small club house and the rules are stated the — they have their rules for membership.

I have in my set forth in my brief a list of things that these gentlemen are now raising for the first time and were not presented to my courts, who you’re now passing upon, one of them was the sufficiency or the adequacy of the rules where they too nebulous and too broad and did they contain too much arbitrary discretion?

They haven’t raised that question, the trial judge didn’t pass on that, the Supreme Court of North Carolina didn’t pass on such questions as that.

Now, they had a rule that people could play that were belonged to golf clubs affiliated with the Carolina Golf Association and as to the rules themselves as stated in the bylaws, there is — I can consider some ambiguity.

I don’t see them right now but when you look at them, there is some ambiguity and it — here in the Article I, membership in this corporation should be restricted to members or approval to Board of Directors.

For membership in the club, there should be two types of membership and that was the $60 plus taxes and so on.

And then, they said the golf course and its facilities should be used only by members and invited guests, members in good standing of other golf clubs, members of the Carolina Golf Association and people — or the professional and his invited guest.

There’s an ambiguity there as to whether that golf clubs who affiliate with the Carolina Golf Association or whether it’s a person who is a member in good standing in the golf club can — would also be entitled to play in this.

In either case, it makes no difference in this case because these gentlemen, three of them who weighed something around 100 pounds had decided to got down there and play golf and — they didn’t go down there and say, “Now – here is a letter showing that we’re in a good standing with the Nocho Golf Club” which one of them says they belonged to, only one of the defendants testified, they presented no letter to the pro or anybody else like that, saying “We are members in good standing of this golf club.”

They just came down — 75 cents down pushed in and said “we’re going to play golf” and they were prosecuted for trespass which Judge Hayes said it was a — he seems to think in his opinion according to the federal supplement that it was a matter of discrimination.

But that was never presented and we don’t — even if they — is the same incident that was adjudicated in the Federal Court.

Even if it was, we don’t know under what circumstances they went in and what they did even in exercising a right to say we’re entitled to exercise.

Earl Warren:

Is this the only golf course the town has?

Ralph Moody:

No, there were – frankly I am not familiar with their golf courses.

You see, I don’t — we don’t prosecute these cases below.

They — there was another course there, the Nocho Golf Course that — which most of the colored people play.

There was there — and there maybe others — Mr. Chief Justice, I really don’t know.

Potter Stewart:

Mr. Attorney General said we don’t know the circumstances under which — this whole happened. What was the evidence on the specific facts of this criminal case?

The criminal —

Ralph Moody:

Oh at this time?

We do have that evidence in the record.

I think Your Honor, I made — I didn’t state that clearly.

Potter Stewart:

I misunderstood you.

Ralph Moody:

Yes, we do have that.

Mr. Bass testified, they came down to and said “we offered him 75 cents” and said “we’re going to play golf” and he said “you can’t play.”

I believe he told him I’m not too sure of this.

I think he told them they were not members or — and they said they formed a line he said, they form a sort of a rough of line, threw 75 cents down on a counter of a little club house that they’ve built there and proceeded to go out and play golf.

Potter Stewart:

And at the third hole they were arrested.

Ralph Moody:

And I think that —

Potter Stewart:

By the pro?

Ralph Moody:

When the pro came back who is the manager of — Mr. Bass told him about it and the pro went out and told him twice I think.

They said they knew who the members of the club were, merely all of it — all of the members were and these gentlemen never made then who came down there and did this never made any (Inaudible) membership.

They said they were going to play golf and it was quite evident of course that they’ve been intended to make such a move at this for sometime because Simkins testified that over a year and a half ago, he’d written his lawyer about it and that he had a letter from his lawyer.

Under this statute if they had a bona fide license to enter on the property or a bona fide belief that they had a license to go on the property and the defense might have been different as to the technical defense is in the statute.

They never claimed that at all.

Simkins said, “I have a letter from a lawyer about it” and he never — they never offered the letter in evidence — evidently thought that what he read in this letter was license for him to do what he wanted to do.

Whether here then that was all.

They never claimed membership at all.

Earl Warren:

Didn’t — didn’t Judge Hayes and his Federal Court’s decision find that it had been customary for white people to go there and do the very things that these people are convicted in doing here and that the reason these people weren’t permitted to do it was because of the discrimination against their color?

Ralph Moody:

He said that in his opinion.

Yes, sir.

He said that.

Earl Warren:

That’s his finding.

Ralph Moody:

No, sir.

I — I don’t know what the findings are but that’s in the opinion they were find —

Earl Warren:

Yes, that’s in his —

Ralph Moody:

That’s his opinion but — I don’t think you’ll find — if you’re going to consider that, I — it’s my position all the time that that is not before the Court.

But — I don’t think you’ll find that he ever found anything like that.

Earl Warren:

That’s in his opinion though?

Ralph Moody:

Yes, sir.

That is in the opinion.

A whole lot of things are in the opinion, Mr. Chief Justice.

He said that he had a lot of common knowledge about things.

He put that in there, too and a whole lot of things that I claim that if you’re going to try my Court and my State that we are not bound by it.

So, make that this record were Federal Court record were before the State Supreme Court, what would be the effect of it in your view as — as to the collateral estoppel as far as relitigation of that issue is concerned?

Ralph Moody:

Well, I admit it.

It’s my contention that that is matter in which the State is not bound by at all.

The State of North Carolina is not bound of that finding as a matter or a collateral estoppel or as any estoppel at all.

Ralph Moody:

They keep talk about these being agencies of the State.

One was a private corporation, the other was a City Administrative Unit and the other was a municipal corporation.

But the State of North Carolina has — as I’ve stated in my brief to you, has not authorized those agencies to stand in judgment for it in criminal matters and in criminal proceedings.

Now, if — if the State can be bound by this as an estoppel, assuming first of all, let’s assume they had it and properly all there and properly approved and offered it in evidence, I still say that it was proper to exclude it and that the — a State constitutionally, as I say doesn’t — as a matter of constitutional law is not required to extend recognition to the doctrine if it doesn’t want to.

You have such a doctrine?

Ralph Moody:

We have such a doctrine as been applied in civil cases.

I think I believe I point that out, but I say that a State constitutionally does not have to extend the doctrine and it does not have to accept criminal, civil issues and criminal cases.

We have tried to discuss that in our brief and I received — I thought a great deal of comfort from the statement in your opinion against Hoag — Hoag against New Jersey.

For there, I believe you will find language in which you said it was very doubtful or there was very grave doubt as to whether a State had to extend to or recognize the doctrine of collateral estoppel.

Now, I’m aware that you have considered it in old (Inaudible) case of the (Inaudible) case in which I believe there was a statement that — that even the issues adjudicated in a civil case might be available in the criminal case.

But I would call to your attention there sir that you were dealing with Federal Courts all the way through.

One gets the impression perhaps mistakenly from reading of your Supreme Court’s opinion that you do have a doctrine of collateral estoppel and that apart from the question of whether this record was properly before the Court that the vice that they found or the difficulty they found in applying the State doctrine was because the State itself has not been a party to the proceeding in the Federal Court.

Ralph Moody:

You’re correct —

Is that fair reading of the opinion (Inaudible)

Ralph Moody:

Yes, I think so.

But I would call to you attention though that the doctrine of collateral estoppel, as far as I know of it in my jurisdiction has only been applied in civil cases, the adjudicating of issues as between the same parties or perhaps privies of those — were connected or related in the determining and concluding matters, but I haven’t found it in where it has ever been applied that a civil — a conclusion or an adjudication in a civil matter has been reached — has been placed over and used as an estoppel against the State in a criminal prosecution.

Has it indicated such things that in this opinion?

Ralph Moody:

No, sir it did not.

I don’t think you find any such authority of such.

They didn’t reach any of these questions because of their view as to the deficiency in the record?

Ralph Moody:

I think so except they did consider the question of judicial notice.

Yes.

Ralph Moody:

And there, I will not debate that unless someone wishes for me to go in to any of it.

It’s suffice it to say that they — they’re now asking for judicial notice make up for all of these and — as some of the question while ago about these motions that were filed in the Supreme Court of North Carolina, they filed a motion suggesting a diminution of the record, but they never said anything about this in that motion at all.

They thought that their record has been sufficiently shown appeals — appeal interest from the Municipal County Court which had original and exclusive jurisdiction.

William O. Douglas:

(Inaudible)

Ralph Moody:

And they thought that they were short there on the appeal I did, too.

I filed a motion to dismiss it but the Supreme Court held against me and — with them.

But I call it to your attention that when they were interested in diminutions of the record, they didn’t seem to be interested in — in the record in the Federal Court at all.

J. Alston Atkins:

Well, Mr. Chief Justice —

Earl Warren:

Mr. Atkins.

J. Alston Atkins:

First if I may be permitted, I would like to suggest the number of questions in our brief that manifest the time we’re not permit and we would appreciate it very much if the Court would consider all those questions which we have and I — an opportunity to the argument as submitted on the brief.

Now on the question of collateral of estoppel is, a file prior to judgment at the State, it confuses the question of a estoppel and collateral estoppel in the supremacy on this federal judgment which is not based upon the question of estoppel at all although the — the supremacy clause, we understand that it makes this judgment supreme as a matter of supremacy and not because of any question of estoppel.

Hugo L. Black:

Where do you quote the part of the judgment on which you rely for that — the Federal Court judgment?

J. Alston Atkins:

It’s — it’s quoted in full as collateral — I mean the — on page 92 of the record, the full declaratory judgment is quoted in full —

Hugo L. Black:

Does that mean, are you asserting here that there are some injunctions that they have violated that they have the right to play there by reason of the injunction?

J. Alston Atkins:

No, sir.

We are saying that these acts by virtue of this declaratory judgment became impressed — in view of the impression of Mr. Justice Douglas in the Hanson case (Inaudible) of federal constitutional law upon them in the same way we believe that the labor contract did in that case.

However, that the Federal Court having jurisdiction of this case could in fact determined well in that — these specific acts were constitutionally protected and that several months after when these warrants were drawn — and they withdrawn months after that determination had been made —

Hugo L. Black:

As to this particular incident?

J. Alston Atkins:

That’s correct — that’s correct.

There were three criminal proceedings in this case, and the last one under these warrants, the warrants would be December 2nd, 1957 whereas the judgment of employments in the Court of Appeals of Judge Hayes’ decision came down on June the 28th, 1957 (Inaudible).

Now if I may — because as I understand because I’m not in any (Inaudible)

Hugo L. Black:

Why would these — why were these two exhibits not put in the record?

J. Alston Atkins:

I cannot answer that, Mr. Chief — Mr. Justice Black except to say what counsel have said.

They said that — they understood the North Carolina procedures to be that the exception that you mentioned in talking with the Attorney General did preserve any questions as to improper exclusion of those records and they call it to the attention of the Supreme Court on page 14 of their brief as they — was proper to do.

That brief was no printed in the record where it was set up and requested to be presented but the clerk thought that it was not properly printed, but it is in the original transcript on full on page 14, they said the Court erred in refusing to admit the defendant’s exhibit 6 and 7 as set out in exception 22.

These exhibits were under the decree of the findings of fact, conclusions of law and opinion of the Federal District Court in the Simkins case and opinion of the Court of Appeals of the Fourth Circuit in the same case.

Hugo L. Black:

Do you claim that it was the duty of the Supreme Court of North Carolina to pass on the validity of that exception, although the exhibits were not in the record?

J. Alston Atkins:

Yes, sir.

Hugo L. Black:

Why?

J. Alston Atkins:

For the reason that the Supreme Court of North — first, the Supreme Court of North Carolina, as we understand its rule has almost unlimited discretion to consider matters coming before it.

In the case Aycock against Richardson, they said moreover the clerk of this Court at its direction as obtained citing material from the Superior Court.

Now, in reliance upon this statement in the brief, the counsel in the State Supreme Court did tender these records for the convenience of the Court asking it to take judicial notice of them but they were available and we believe — as I read the Supreme Court’s cases that it could have within its discretion — looked at those records.

It could have —

Hugo L. Black:

Where is the state — where is the statement in the record showing that they were tended to the Supreme Court?

J. Alston Atkins:

It’s on — toward the end of the — end of the record, motion to take judicial notice.

Hugo L. Black:

What —

J. Alston Atkins:

Page 128 or the record.

From the argument of this case solely for the convenience of the Court in connection request in judicial notice certified counsel saved in records under United States Court, that saying construction of the constitution law of United States upon the — identical facts involved in this appeal.

Hugo L. Black:

Where does it appear that those were exhibits 6 and 7?

J. Alston Atkins:

It appears in the brief of the — of appellants in that case through the appellants here on page 14.

They said what those 6 and 7 were.

Hugo L. Black:

It does not appear on the motion?

J. Alston Atkins:

I don’t think it does, Mr. Justice Black, although I — I am (Inaudible), but it describes them — we believe that this is fair case of racial discrimination which the State Supreme Court could have reached and that — and this Court is not precluded.

Now, from considering these questions, we set out reasons more elaborately and — in our brief which we hold the (Inaudible).

Thank you.