THOMPSON v. LOUISVILLE

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Argument of Louis Lusky

Chief Justice Earl Warren: Number 59, Sam Thompson, Petitioner, versus City of Louisville.

Mr. Lusky, you may proceed with your argument.

Mr. Louis Lusky: May it please the Court.

This case presents for review, two judgments of the Police Court of Louisville, adjudicating the petitioner to be guilty of violating two City of Louisville ordinances.

These ordinances proscribe -- prescribe penalties -- criminal penalties for loitering and disorderly conduct.

The case comes here directly from the Police Court of Louisville, because it happens that that is the highest court of Kentucky and which a decision on the merits of the case can be held.

The reason --

Justice Charles E. Whittaker: Is that clear and undisputed?

Mr. Louis Lusky: That is clear and undisputed.

Justice Charles E. Whittaker: There is no power in the Court -- intermediate Court of Appeals to hear this under any circumstances?

Mr. Louis Lusky: There is no intermediate Court of Appeals in Kentucky at all, Mr. Justice.

And the exact statutory situation is that judgments of the Police Court of Louisville are not appealable unless they involve a fine of at least $20 or a jail sentence of more than 10 days, or both.

It is also clear, under the Kentucky decisions, that even the extraordinary power possessed by the Kentucky Court of Appeals to exercise control over inferior jurisdictions under Section 110 of the Kentucky Constitution, which is a kind of an all writs section, that even this power is not available despite the existence of timely and substantial federal constitutional claims where, as in this case, the sentence is unappealable because of its smallness.

In other words, the Kentucky Court of Appeals has squarely held that where a $10 fine is involved and where the fine is unappealable on the merits because it is so small, that the Court of Appeals will consider the injustice to be too small to justify the invocation of relief under the All Writs Act.

The cases for that are cited in our brief, Walters against Fowler, Thompson against Wood.

And actually, a proceeding collateral to this case and which it was also reaffirmed, which I will describe if you'd like to hear it now.

It's -- I mean, our -- we had a problem on this case in -- in this rather peculiar way.

It was clear enough that this was the -- that -- that since these cases were -- involved sentences too small to take any Kentucky court, this was the only court that they could be taken to.But it was also unfortunately true that under Kentucky law, there is no provision for bail, unless you are taking an appeal to a state court, no statutory provisions for bail.

Third, it was true under Kentucky law that there was -- that -- that whether you want to or not, if you're put in the Louisville workhouse in default of paying a fine, you automatically get credit on your fine at the rate of $2 a day for everyday you spend in the workhouse.

This petitioner has two $10 fines and that meant that -- that at the end of 10 days, whether he wanted to or not, he would've paid those fines by being in the workhouse for 10 days and the case would be moot.

So, for that reason, desiring to file a petition for certiorari in this Court and knowing that this Court -- it's hard even to write a petition for -- in 10 days, much less get it ruled on.

We had to initiate collateral proceedings in order to get him out of jail, long enough so that we could get a petition for certiorari filed here and we -- we did file a habeas corpus proceeding in the State Circuit Court.

Habeas corpus was granted on constitutional grounds.

There was no statutory provision for it, but Judge Lawrence Grauman of the Jefferson Circuit Court held that if he had a federal constitutional claim and a substantial one which he -- which Judge Grauman thought he did, that he had an ancillary right to have that -- to have an opportunity to present that claim without having his case become moot, before he could possibly get it up here.

And since the only way to do that was to grant him his liberty on -- on reasonable bail, by a fix bail in the amount of $35 and let him out.

Justice John M. Harlan: One thing I'm just curious about, why didn't you ask, His Honor, the Police Judge, to give you a $20 fine the way you did in the earlier case and then you could've gone up to Kentucky Court of Appeals and if I read their opinion that you've been referring to correctly, you probably would not come to Washington at all.

Mr. Louis Lusky: Well, if Your Honor please.

In the first case, if you -- and I -- I see you have studied the record already.

Justice John M. Harlan: (Voice Overlap) --

Mr. Louis Lusky: You will see that the -- that the Police Court Judge offered an appealable sentence.

He gave the defendant an option.

What he said in the first case was, “My inclination,” he says, “is”-- on the -- in -- in the first case, there were two charges also, one loitering and one vagrancy.

He said, “My inclination is to fine you $10 on the loitering and to file away the vagrancy charge.”

This was about the mildest thing he could do.

And -- and of course --

Justice William J. Brennan: What -- what did (Inaudible)

Mr. Louis Lusky: Well, that's -- that's an interesting thing that -- and maybe it's peculiar to Kentucky.

You see under Kentucky law, you can't sue a police officer for wrongful arrest, if the criminal case is not terminated in your favor first.

Now, this is quite a standard rule of private law as far as malicious prosecution is concerned.

It is rather -- it is not a standard rule of private law in false imprisonment cases.

Most States hold that where your action is for false imprisonment for a summary arrest, you can test the legality of the rest -- of the arrest quite independently of the -- of the legality of -- of the ultimate outcome of the criminal prosecution, but Kentucky says otherwise.

In Kentucky, if you -- if you don't win the criminal case, you -- you're out of court on your false imprisonment as well.

Now, when a Police Court Judge is faced within Kentucky, with the problem -- with a situation where on the one hand, he doesn't really think the defendant is deserving of punishment but on the other hand, he doesn't want to make it possible for a defendant to sue a police officer for wrongful arrest.

It is the common thing for the Police Court to say, “We will file this case away.”

Which means it is in a state of indefinite suspended animation.

Unknown Speaker: (Inaudible)

Mr. Louis Lusky: What is it?

No, it's on -- it's -- it's technically subject to being reopened on notice by the prosecution or by the defendant.

And if it is so reopened, then it's tried like any other case.

In -- in practically every case, it is -- it just goes to sleep.

It has a residual effect.

Future employers can see that it's an unresolved case and if they don't-- if they're out of state employers and don't know how we do things in Kentucky exactly, why they make it -- draw the wrong conclusion.

It -- it may have an effect possibly on the judge in a later case, but as a practical matter, the case is finished except for purposes of a malicious prosecution action.

Now, two or three years ago, in the case of Van Arsdale against Caswell and after it was made to get the Kentucky Court of Appeals to recognize that -- that the case really was over when it was filed away.

And therefore, that a malicious prosecution action should be possible and the Kentucky Court of Appeals said, “No, we don't think that's so.”

It is still open, but you must remember that a case can be filed away without the defendant's consent.

Now, they said also, “Is that if the defendant asks to have the case heard and the court files it away nevertheless, that is a final termination from which he can appeal.”

So in this case, on the -- on the January 20th hearing when they asked us if we wouldn't like to have the $10 fine on the loitering and the vagrancy filed away, what actually happened?

We first said, “No, we would not like a $10 fine on the loitering.

If you're willing to give us a $20 fine, we'd like it better than -- than a $10.”

And so, that's what we got.

Then he said, “We'll file away the vagrancy.”

And I said “No, Your Honor, I'd prefer it if you would please dismiss the vagrancy.”

Obviously, if -- if the court had considered the defendant to be guilty of vagrancy, he would have to right to file away the case, it would've been his duty to find him guilty.

So, we said under Van Arsdale against Caswell, we have a right to have it -- to have it adjudicated and the decision should be a dismissal, we submit.

Without hearing any further evidence or argument, the court said, “In that event, the question is do you want an appealable sentence or not?”

And we said, “We prefer to have none, but if it's going to be a sentence, we prefer an appealable sentence.”

And he said, “Well, you can either have a $10 fine which is the maximum fine that the statute authorizes or a 30-day jail sentence which is the minimum jail sentence.”

And we took the minimum jail sentence and we appealed.

And in March -- March 18th, the case was heard before a jury in a Circuit Court and resulted in a directed verdict of acquittal.

In that case, Your Honor, we were offered this opportunity.

In the case from which we are now seeking relief -- the judgments from which we are now seeking relief, we were not offered that opportunity.

Justice Tom C. Clark: Is that the same defendant?

Mr. Louis Lusky: Same defendant.

Justice Charles E. Whittaker: Well, they're different -- different arrests in a different offense.

Mr. Louis Lusky: Different arrests, different alleged offenses.

Justice Charles E. Whittaker: Yes.

Justice Felix Frankfurter: The question that he asked --

Mr. Louis Lusky: I beg your pardon?

Justice Felix Frankfurter: The question that he asked is (Inaudible)

Mr. Louis Lusky: I don't know that there's a -- there's a general practice.

I mean, I think the general practice of defense counsel is probably not to ask the court for any heavier sentences than -- than it's inclined to impose.

If the court offers a clear choice, I think it's up to the client to decide whether he wants to have an appealable sentence.

In this case, we did not ask the court to punish the defendant harder than the court was inclined to do it.

Justice William O. Douglas: Are the member judges in your Police Court law-trained judges or --

Mr. Louis Lusky: They are, Your Honor.

Under Kentucky police statutes, Police Judge -- Police Court Judges in cities of the first-class have to be members of the bar for at least eight years and this is not true, I think, in some of the country courts, but it is true in Louisville, which is the only city of the first-class.

Justice Potter Stewart: So, where there is appeal, appeal on the State Circuit Court with a trial de novo by jury.

Mr. Louis Lusky: That's correct.

Justice Potter Stewart: And then, further appeal to the --

Mr. Louis Lusky: A further appeal if the jurisdictional requirements for appeals to the Court of Appeals are satisfied.

I think it has to be at least a $50 fine, at least as some higher -- some higher.

Justice Potter Stewart: It would be higher (Voice Overlap) one justifies an appeal to the Circuit Court.

Mr. Louis Lusky: But in Circuit Court, of course, you have a jury and -- and you also have a -- a somewhat different mode of proceeding.

Justice John M. Harlan: With time running on and not too far, I wonder if you could state precisely what you conceive the due process point to be on the first point in your argument, in your brief.

Mr. Louis Lusky: On the first point in the briefs?

Justice John M. Harlan: Yes, the lack of evidence point.

At least --

Mr. Louis Lusky: Well --

Justice John M. Harlan: -- to be about in the points mixed up.

Justice Felix Frankfurter: Is there any unconstitutional questions?

Mr. Louis Lusky: There are -- there are, Your Honor.

There are two or three.

Actually, in my -- let me -- let me say this.

It is not the easiest thing in the world to separate these issues, these constitutional issues.

They're all due process questions.

It's not the easiest thing in the world to separate them out into separate categories.

We have done this for purposes of -- of presentation in the brief.

Actually, I think you can state the petitioner's problem and his constitutional claim very simply.

His problem is that he has been subjected -- he has been reduced to a virtual status of outlawry by the action of the Louisville police in arresting him whenever they see him, no matter what he's doing or not doing.

That -- and this incidentally, is something which started and which the record shows is the result of a very bold and brash thing which the petitioner did a year ago tomorrow.

And I -- I might just a well tell you this specifically, because it does underlie the whole thing.

On January the --

Justice Felix Frankfurter: It may underlie it, but does it lie in the record?

Mr. Louis Lusky: Yes, sir.

Justice Felix Frankfurter: In -- on January the 10th, 1959, Saturday afternoon, the petitioner was shopping for vegetables in the Louisville Haymarket and got into an altercation with a complete stranger.

They -- they -- one word let to another.

It ended up with -- with petitioner getting stabbed in the shoulder.

The man, his assailant, led off down the street and the petitioner went off, followed him on foot, not getting too close, but keeping him in sight.

They came to First Street, a side street coming in.

He saw a police squad car parked there and he went up to it and he told the policeman, “That man stabbed me.

Follow him please and arrest him.”

Instead, the police arrested the petitioner and charged him with disorderly conduct for refusing to reveal the name of his assailant, a man whom he had never seen before in his life.

On Sunday, January the 11th last year, a year ago today, the petitioner retained my colleague, Mr. -- Mr. Morse, as his attorney, to resist this charge.

And on the 12th, he appeared in Police Court, pleaded not guilty, demanded a trial and the case was set for trial on January 27th.

Everything which--- which -- every -- all of -- all of the remaining incidents in this record are the results of reprisals taken on the petitioner for his boldness in be -- in -- in retaining counsel and pleading not guilty and demanding a trial in this -- on this ridiculous disorderly conduct charge.

Justice Felix Frankfurter: Had the police knowledge of the petitioner before this episode?

Mr. Louis Lusky: The petitioner, Your Honor, had an arrest record.

It is not clear to me, and I don't think it's clear to anybody on this record, just how many times he had been arrested.

The -- and -- and the reason is rather interesting.

The record -- the -- the arrest record as such, was never introduced in evidence.

It was offered at the January 20th trial and was rejected after it was brought out on cross-examination that -- that there were two Sam Thompsons, one of them 20 years or so older than the other and they had them both in there, you see.

And at the second trial, the -- the arrest record which is not a public record incidentally, I mean, if -- if any -- if a man on the street were to walk into the police department and asked to see it, he would not be allowed to see it.

This record was not offered in evidence at the second trial, but the record shows it was handed up to the judge before sentence, because he stated before imposing sentence in the second case, that he had been shown a -- a record that the petitioner had been arrested 54 times before that.

It didn't show how many convictions there were and it didn't show how many of them were -- involved this Sam Thompson.

And so, I don't know.

I never saw Mr. Thompson until a year ago.

Justice Felix Frankfurter: So, we don't -- do we know whether the Thompson before us is the outlaw Thompson?

Mr. Louis Lusky: Well, we -- we know, but he is the one that the things that have happened in the past year have happened to.

Justice Felix Frankfurter: How many things happened in the past year?

Mr. Louis Lusky: Well, Your Honor, I -- if I may, I would like to take just a couple of minutes to -- to review them --

Justice Felix Frankfurter: You can answer that.

Mr. Louis Lusky: -- quite quickly and then I would like to save some time for rebuttal, if I could.

Justice Felix Frankfurter: But, you can answer, how many -- your --

Mr. Louis Lusky: How many things?

Justice Felix Frankfurter: -- your proposition is that this record showed conduct by the police whereby whenever this man appears whether he is treated -- he is treated as an outlaw and subjected to arrest, is that it?

Mr. Louis Lusky: That is correct, Your Honor.

Justice Felix Frankfurter: Now, that's what you say.

So, I ask you how many times does this record show he's himself, treated?

Mr. Louis Lusky: This record shows twice.

Justice Felix Frankfurter: Twice?

Mr. Louis Lusky: The first time we were given an option of taking appealable sentence was we appealed, we got them reversed.

Incidentally, the first charge, the cutting disorderly conduct was filed away and we didn't -- we didn't have resist the filing away.

We had our hands full.

The -- the case was filed away and -- and that's the end of that.

We appealed the second conviction which took place on January 20th and on March 18th, we got it reversed on the directed acquittal in Circuit Court, after jury trial.

Justice Felix Frankfurter: Your proposition is not that this conviction albeit is only for $10, that you could come here -- you could come here from Baltimore mayor's court, from the lower -- lowest court, your proposition is not that this conviction is violated of due process, because the Commonwealth of Kentucky has subjected him to this punishment, but that the Commonwealth of Kentucky has treated this as an outlaw, as a couple of complainants.

Is that it?

Justice Potter Stewart: Is that it?

Justice Felix Frankfurter: Although, your record show there are only two such instances?

Mr. Louis Lusky: Well --

Justice Tom C. Clark: I thought on that --

Mr. Louis Lusky: There's a little more than that.

Justice John M. Harlan: The record is undisputed that these arresting officers in this particular case, their testimony was undisputed that they'd never seen this fellow and never heard of him on the time they arrested him.

Mr. Louis Lusky: Now, that is not quite what the record shows, Your Honor.

Justice John M. Harlan: Wrong --

Mr. Louis Lusky: What the record shows is that there were two arresting -- I -- I'm trying to figure out how to answer both these points.

But let me just say quickly, if you don't mind Your Honor, first.

If -- if I may frame it, this may add up to the same thing as -- as the outlawry statement, but it's a little bit more explicit.

It's a little bit more detailed.

We would say that the -- that you don't have to arrest a man 50 times in order to have it -- to -- to make it quite clear that you are prepared to arrest him on sight.

We say that when you arrest him twice under circumstances where the record showed that he is -- that there is no ground on which any reasonable police officer could have thought him guilty --

Justice Felix Frankfurter: You haven't gotten--

Mr. Louis Lusky: -- and when you further --

Justice Felix Frankfurter: (Voice Overlap) Mr. Lusky.

Mr. Louis Lusky: I beg your pardon?

Justice Felix Frankfurter: The other we don't -- how do we know that the first record which is not here before us --

Mr. Louis Lusky: It is here before us, Your Honor, because it was filed in a -- as an exhibit on the second trial.

Justice Felix Frankfurter: You mean all the -- all the proceedings?

Mr. Louis Lusky: All the proceedings.

Justice Felix Frankfurter: Everything was taken down?

Mr. Louis Lusky: Yes, sir.

It is in this record and you will be able to see --

Justice Felix Frankfurter: And --

Mr. Louis Lusky: That there is not --

Justice Felix Frankfurter: That's what he got for $20 --

Mr. Louis Lusky: I beg --

Justice Felix Frankfurter: Was that when he got $20?

Mr. Louis Lusky: That's where he got $20 and 30 days.

Justice Felix Frankfurter: And you could have gone up to the Court of Appeals of the State?

Mr. Louis Lusky: We -- we went up to the Circuit Court.

That's all we had to go.

We got a directed acquittal.

Justice Felix Frankfurter: Is that (Inaudible)

Mr. Louis Lusky: But what we say is that -- that when you coupled a complete lack of proof on these two charges with the explicit statement of the police to this petitioner on January 14th, that they are arresting him because he pleaded not guilty and hired a lawyer and -- and resisted this first charge, we say that this is enough to show what they're going to do from now on.

And of course, I could -- the record doesn't show what's happened since this case was finished, but it's plenty.

Now, on the question that Mr. Justice Harlan raised as to whether the police in the present case knew about it, here is what the record shows exactly.

There were two police officers who made the arrests that led to the convictions hereunder review.

First, Officer Barnett, when he walked into this little café where the loitering arrest was made, he went up to the manager and he said, “Who is that man over in the middle of the floor?”

And the manager said, “It's Sam Thompson.”

“How long has he been here?”

“Half an hour.”

“Has he bought anything?”

“I haven't seen him buy anything.

I haven't sold him anything,” said the manager.

There were other people that could have sold him and did.

Then he said -- the manager -- the manager said, “Well, he hasn't done anything wrong, has he?”

And the man and -- and Office Barnett said, “He has been in something down at the bus station.”

This referred to the incident 10 days before that led to the first appealable sentence.

So, Barnett did -- on the -- on the -- on Mark's, the café manager's testimony, Barnett did know about the previous incident and had it in his mind when he made the arrest.

Now, Barnett did not call -- was not called as a prosecution witness at the trial and did not testify.

He was not available to be examined by us.

Justice Charles E. Whittaker: But Mr. (Voice Overlap) --

Mr. Louis Lusky: Lesfield (ph) did testify and said that he did not know about the earlier incident at the time of the arrest.

That is the exact state of the record on that.

Yes, Mr. Justice?

Justice Charles E. Whittaker: Well, Mr. Mack, wasn't it, who decided the (Inaudible)

Mr. Louis Lusky: Mark.

Justice Charles E. Whittaker: Mark --

Mr. Louis Lusky: Yes.

Justice Charles E. Whittaker: -- what would he say of bar or whatever it is and he did testify didn't he, to the statement by --

Mr. Louis Lusky: Barnett.

Justice Charles E. Whittaker: Barnett.

Mr. Louis Lusky: That's correct, Your Honor.

Now, if -- if I may, Your Honor, I will -- I will simply -- I would like to save what time I have, if I may, for a short opportunity to rebuttal.

What we say, in effect, is that this outlawry is we believe, fully established by the record in -- in the manner in which I -- I said, but beyond that, we say that this is -- we -- we have -- our client is not only been deprived of his liberty and property with -- of due process by these police arrests, but also by the action of the Police Court in perfecting and really sealing tight the door against a civil action which would give the -- the petitioner his only way of defending himself against this kind of -- of activity on the part of the police.

Justice Charles E. Whittaker: Well, how is that?

Mr. Louis Lusky: Because, Your Honor, under Kentucky law, a conviction prevents you from suing the policeman who has arrested you.

Justice John M. Harlan: But --

Mr. Louis Lusky: You just can't do it.

And if -- unless you can get the conviction reversed, you are through with the civil action and Kentucky says if -- if -- that the Police Judge can prevent you from ever getting it reversed in any Kentucky court and he can do this by first of all, giving you a sentence too small for appeal.

And second, by knowing that under the rule which prevails in the Kentucky Court of Appeals, no collateral attack is possible on the judgment.

Justice Charles E. Whittaker: Well, is -- is that violation of due process?

Does the State have to allow any appeal?

Mr. Louis Lusky: We don't think it has to allow a plenary appellate review, Your Honor.

But we do maintain that under Mooney against Holohan and related cases, it does have to afford some corrective judicial process for violations of the Federal Constitution.

Justice Tom C. Clark: Don't you have a (Inaudible)

Mr. Louis Lusky: We have -- an action for malicious prosecution or false imprisonment is the normal proceeding.

Justice Tom C. Clark: (Inaudible)

Mr. Louis Lusky: I imagine you could -- if you could -- normally, the -- the -- a court of equity will not entertain a collateral attack on a judgment of the criminal court.

This is the -- this is why we're out of court on false imprisonment, unless we get this judgment set aside.

Justice Felix Frankfurter: Did you say that putting it on trial requires the concurrence of the defendant?

Mr. Louis Lusky: To filing it away?

Justice Felix Frankfurter: Yes.

Mr. Louis Lusky: It does, yes.

And when the --

Justice Felix Frankfurter: When I -- if the three-court judge as the trialing judge finds away without question, whereas I should think, knowing nothing about Kentucky law, but I find it difficult to believe that you couldn't get on it by way of mandamus of prohibition or what not from a Police Court Judge doing what the statute of Kentucky forbids them to do.

Mr. Louis Lusky: Statute of Kentucky when?

Justice Felix Frankfurter: Forbids them from doing, namely, putting things on (Voice Overlap) --

Mr. Louis Lusky: Well, he doesn't -- he doesn't flaunt the statute or the--

Justice Felix Frankfurter: I thought he has --

Mr. Louis Lusky: -- of the Kentucky Court of Appeals.

Justice Felix Frankfurter: I thought he has -- I thought he has to get your consent?

Mr. Louis Lusky: He does.

Justice Felix Frankfurter: Well, then you didn't give it.

Mr. Louis Lusky: That's right.

Justice Felix Frankfurter: Either you give it or you didn't give it.

Mr. Louis Lusky: We didn't.

On --

Justice Felix Frankfurter: If you say (Voice Overlap) --

Mr. Louis Lusky: In the first case, we didn't give it and he didn't file it away.

Justice Felix Frankfurter: All right.

Mr. Louis Lusky: He just -- he just said, “You're guilty.”

Justice Felix Frankfurter: What?

Mr. Louis Lusky: He just said, “You're guilty.”

He didn't file it away.

He decided the case.

Justice Felix Frankfurter: Well, he --

Chief Justice Earl Warren: In this case, he finds -- finds you provoked.

Mr. Louis Lusky: Yes.

In this case, he didn't even propose to file them, but he already knew that what we've say if the offer --

Justice Felix Frankfurter: Then, what he's saying, it's a violation of due process for a Kentucky judge to give the minimum fine that the statute authorized him to give.

Is that it?

Mr. Louis Lusky: No, sir.

We say it is a violation of due process for Kentucky -- for Kentucky to create a legal situation in which a man can be harassed by the police and can by the sole judgment of a single judicial officer acting wholly arbitrarily as the record shows, be foreclosed from any effective way of defending himself against a continuation of that.

Now --

Justice Felix Frankfurter: And that's why you're here.

You're properly here and if what you say is so, you say there is no evidence at all for this conviction and therefore, certainly, a deprivation of liberty without due process of law.

Mr. Louis Lusky: That is right, we think.

Justice Felix Frankfurter: But you're not content with that.

Mr. Louis Lusky: Well, we felt, Your Honor, that it was our obligation to present to the Court all the issues that the record raised.

I mean, I don't say that we would be content or not --

Justice Felix Frankfurter: (Voice Overlap) say that is the real issue.

Mr. Louis Lusky: -- content, that's not the important thing.

Justice Felix Frankfurter: Well, do you contend that as the real issue to this outlawry because a single police -- or two policemen said the policeman (Inaudible) plaintiffs.

Mr. Louis Lusky: Well, they don't say it to this Court very much, Your Honor.

And when they do --

Justice Felix Frankfurter: They have said it.

Mr. Louis Lusky: -- this Court talks back.

Justice Felix Frankfurter: It's presented to this Court.

Mr. Louis Lusky: Could -- I -- I think I have --

Justice Hugo L. Black: (Voice Overlap) first ground.

I do not understand you're about to (Inaudible) is that --

Mr. Louis Lusky: I'm not abandoning anything.

Justice Hugo L. Black: (Voice Overlap) unsupported by any evidence should be of constitute fully arbitrary conduct that violate due process.

Mr. Louis Lusky: You're absolutely right, Your Honor.

We -- we would say, if -- if there were nothing in this case except that -- that this man had been convicted of a crime when there was absolutely no proof of guilt, we would say that that in itself, is a denial of due process.

But we are not required to go that far, we say that coupled with all the other things in this record, it's certainly a -- a conviction that could be set aside.

Justice John M. Harlan: The point you're making, I take it is that if this was an isolated case, this fellow had been -- never been arrested before and you had this same record in a conviction, you wouldn't have tried to bring the case up here.

Is that what you're saying?

Mr. Louis Lusky: I don't say whether we would or not.

I would've said --

Justice John M. Harlan: Well, I don't want to put you (Voice Overlap) --

Mr. Louis Lusky: -- I wouldn't have been astonished, if you denied certiorari.

Justice John M. Harlan: If what?

Mr. Louis Lusky: I stood you.

[Laughter]

Justice Charles E. Whittaker: I'm troubled by -- by --

Mr. Louis Lusky: I beg your pardon?

Justice Charles E. Whittaker: I'm troubled to this extent.

You've answered Mr. Justice Black that your position is that this man was convicted without any semblance of evidence at all and that violates substantive due process.

Now, I wonder if the fact that Kentucky sees fit to permit the imposition of a fine as small as $10 without any appellate redress and therefore, permits that such a fine without evidence, whether that is a violation of due process.

Can you give me any light on that?

Mr. Louis Lusky: Well, it -- it's a violation of due process, Your Honor, under -- under the basic rule of Davidson against New Orleans, which says where -- where substantive due process, as I understand it, originated.

It says that a State has no power to declare the property of A to be the property of B, with no reason for it.

And that's exactly what happened when you fine a man $10 for no cause.

Justice Charles E. Whittaker: I know, but the State here doesn't have to or doesn't have to allow him an appeal.

Mr. Louis Lusky: No, it just has to allow him some kind of review of his constitutional claims.

It's not full appellate review.

Your Honor, I see my time is up and could I ask --

Chief Justice Earl Warren: (Voice Overlap) we've--

Mr. Louis Lusky: I think --

Chief Justice Earl Warren: -- we've taken so much of your time and I'm going to give you 10 minutes for rebuttal, if you -- if you want it --

Mr. Louis Lusky: Thank --

Chief Justice Earl Warren: -- after counsel has been heard and you may have 10 minutes extra if you need it also, counsel.

We'll --

Mr. Louis Lusky: Very --

Chief Justice Earl Warren: -- recess now.

Mr. Louis Lusky: -- gracious, Your Honor.

Thank you.

Print this transcript Transcript: 

Argument of Herman E. Frick

Chief Justice Earl Warren: -- versus City of Louisville, et al.

Mr. Frick, you may proceed with your argument.

Mr. Herman E. Frick: May it please the Court.

I'd like to propose my remarks here with the idea that in a situation of this kind where you have a dispute between an individual and organized society, sympathy is always for the underdog, the individual.

But there's a lot to be said for society, too.

After all, organized society has the duty of preserving order.

As a matter of fact, that was one of the purposes of constitutional government under the Constitution of the United States to ensure domestic tranquility.

And of course, one of the ways of preserving order for all of its citizens is through these offenses and ordinances and statutes relating to loitering, disorderly conduct, vagrancy and minor offenses of that sort.

They are designed to control society to -- to prevent individuals from congregating and as a result of idle minds stirring up crimes, which maybe of a serious nature and thereby injure society and all of the organized group as a whole.

Now, with that theory in mind with which I am approaching this case, I'd like to get to this point.

First of all, it seems to me that this case has been complicated by a certain number of irrelevancies, immaterialities and some speculation.

And I'd like to enumerate what I consider some of those chief irrelevances.

First of all, we have before this Court, a petition to review the proceedings of a single day, that is, the trial of February the 3rd, 1959, in the Louisville Police Court.

The Court will have observed both from the briefs and from the argument that there's been a great deal to say about certain proceedings which happened in the Louisville Police Court on January the 20th.

Now, they may have wondered, as did for some time when I first got into this case, how that happened to get into the record.

In the proceedings of February the 3rd, an agreement was made at page 35 of the record to stipulate the testimony of Dr. Dean.

That was page 34 of the record, I'm sorry, which was given at the trial of January the 20th.

Now, when this stipulation was entered and it was agreed to by the prosecutor, Mr. Dougherty and by the attorney for the petitioner, it was then filed and since that testimony was included with the testimony of all the proceedings of January the 20th, the entire record was filed.

Now, properly therefore, before this Court, there is not the proceedings of January the 20th as such, but only the stipulated testimony of Dr. Dean.

So therefore, after we reach the first 35 pages in the record and the stipulated testimony of Dr. Dean, the remainder is surplusage.

Now --

Justice John M. Harlan: Was there a contention made in the proceeding that we're reviewing that this was simply a course of conduct of harassment against this man?

Mr. Herman E. Frick: Yes, sir.

That was to this extent, an avowal was tendered in which -- prepared by Mr. Lusky on behalf of his client that if he would be allowed to testify, he would testify as follows.

That appears, I think --

Justice John M. Harlan: That's that avow?

Mr. Herman E. Frick: That's that avow, yes, sir.

That of course, was not allowed because in the feeling of the trial judge, that was irrelevant.

That -- the issue he had before him was the offense which was charged on February the 3rd.

Justice Felix Frankfurter: Where is the formal charge etcetera, on which we are here?

Mr. Herman E. Frick: That appears on the first 35 pages of the record.

Justice Felix Frankfurter: No, no, is there a formal charge?

Mr. Herman E. Frick: No, sir.

It's an informal proceeding.

In other words, the individual was arrested on February the 3rd.

Justice Felix Frankfurter: It just came before the magistrate --

Mr. Herman E. Frick: It came before -- it came before the police court in due course --

Justice Felix Frankfurter: (Voice Overlap) a speech may -- made these all.

They're set forth what he claimed was the misconduct of the petitioner.

Mr. Herman E. Frick: That's -- that's right.

Justice Felix Frankfurter: Now, where is that in terms?

Where is -- where is the language?

Does one have to be 35 pages to find out what he is charged with?

Mr. Herman E. Frick: Well [Laughs] the evidence -- there is no formal charge or language that appears --

Justice Felix Frankfurter: Where did he --

Mr. Herman E. Frick: -- as such.

Justice Felix Frankfurter: -- where did he make a statement saying, “Your Honor, we are here because Sam Thompson did the following or misbehaved in the following manner.”

Don't (Voice Overlap) --

Mr. Herman E. Frick: As far as the police officer, that does not appear in the record.

The --

Justice Felix Frankfurter: You say --

Mr. Herman E. Frick: -- arresting slip --

Justice Felix Frankfurter: You have to take you at your word.

It doesn't appear in the record then I can't tell what he was charged with.

Justice Charles E. Whittaker: Well, is there any showing that he violated those charge, that he violated a particular section of the (Voice Overlap) --

Justice Felix Frankfurter: Yes, sir.

That -- that is contained in the record.

I am -- it's not included here.

Perhaps, I should take risk.

When an -- when an individual is arrested for a misdemeanor committed in the presence of the officer, he prepares that arrest slip which contains a charge which he has placed against him.

Justice Felix Frankfurter: Is that in the record?

Mr. Herman E. Frick: That is not in this record, Your Honor

Justice John M. Harlan: Would be in the original record though?

Mr. Herman E. Frick: Excuse me, sir?

Justice John M. Harlan: Would be in the original record, wouldn't it?

Mr. Herman E. Frick: No, sir.

I don't believe it's in the original record either, I don't see it in here.

Of course, we didn't prepare this record, but --

Justice Felix Frankfurter: Is the original record here in the --

Mr. Herman E. Frick: No, sir.

Justice Felix Frankfurter: -- with the clerk?

Mr. Herman E. Frick: No, sir.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Herman E. Frick: It's not with the clerk.

It's down in the office of the clerk of the Police Court in Louisville.

Justice Felix Frankfurter: Is it -- is it unfair to say that from what you've said without more, one could not find documented what it was that this petitioner really was charged with?

Mr. Herman E. Frick: I hadn't thought of that point, but I -- I think you're right, Your Honor.

Justice Felix Frankfurter: How can -- how can we -- how can we then determine whether the evidence supports the charge?If you don't know what the charge is, how can you tell whether the evidence supports it?

Mr. Herman E. Frick: Well, I know that he was charged with disorderly conduct and --

Justice Felix Frankfurter: But you may know, but [Laughs] --

Mr. Herman E. Frick: [Laughs] But I understand that perfectly, Your Honor.

Justice John M. Harlan: If you want --

Unknown Speaker: (Voice Overlap) I beg your pardon.

Mr. Herman E. Frick: Excuse me.

Unknown Speaker: Go ahead -- go ahead --

Justice John M. Harlan: If you went to the records of the police court, would you find a piece of paper there that says --

Mr. Herman E. Frick: Yes, sir.

Justice John M. Harlan: -- section so-and-so --

Mr. Herman E. Frick: Yes, sir.

Justice Tom C. Clark: -- charged under section --

Mr. Herman E. Frick: Yes, sir.

Justice Tom C. Clark: -- so-and-so, that's the -- that's the paper that's there in the police court?

Mr. Herman E. Frick: That's right.

That is in the possession of the clerk of the police court.

Justice John M. Harlan: That in --

Mr. Herman E. Frick: It's just a small slip of paper with --

Justice John M. Harlan: Well, are the --

Mr. Herman E. Frick: It has the abbreviations for disorderly conduct.

He put down, “D.C.” and for loitering, “Loit” and then they charge under this particular section of the ordinance.

Justice John M. Harlan: There is a piece of paper, although it's not here in this Court.

Mr. Herman E. Frick: That is correct, Your Honor.

Justice Felix Frankfurter: And no matter how informal the police court proceedings may be or how friendly, all the evidence before the police court judge would be -- would have to be confined within the scope of what that charge implied.

Is that it?

Mr. Herman E. Frick: That is correct, Your Honor.

In other words, that is a ground for frequent objection in police court that evidence is being produced which is not contained within the charge.

Justice Felix Frankfurter: Now, if you -- if -- what is the maximum penalty that may be imposed?

Mr. Herman E. Frick: For loitering?

Justice Felix Frankfurter: Yes.

Mr. Herman E. Frick: Well, we have it specified here.

I don't recall offhand.

I believe it's $100.

Justice Felix Frankfurter: $30?

Mr. Herman E. Frick: $100, I believe.

Justice Felix Frankfurter: $100.

Well, if it's decided against that it would -- $20, it could go up to your (Voice Overlap) --

Mr. Herman E. Frick: Certainly, if the sentence imposed is $20 or more, it may be appealed as a matter of right.

Justice Felix Frankfurter: Now --

Mr. Herman E. Frick: In other words, that (Voice Overlap) --

Justice Felix Frankfurter: To the Circuit Court.

Mr. Herman E. Frick: That's right, to the Circuit Court.

Justice Felix Frankfurter: Are made then on -- on leave to go to the Court -- to your Court of Appeals?

Mr. Herman E. Frick: If it has a jurisdictional amount, it may then be appealed to the Court of Appeals.

Justice Felix Frankfurter: How much is that, $100?

What I want to know is could, could this kind of a case, if a -- if an appropriate fine is imposed, ever reach your Court of Appeals.

Mr. Herman E. Frick: Yes, sir, if the penalty was enough.

Justice Felix Frankfurter: Well then, if it comes before that Court of Appeals, they wouldn't have some documentation of what the charge is in order they can measure the evidence as against the charge.

Is that right?

Mr. Herman E. Frick: That's right.

Justice Felix Frankfurter: And we have -- but we're denied that opportunity here on this record, is that it?

Mr. Herman E. Frick: Well, Your Honor, I don't think deny is exactly the right word.

It's just a --

Justice Felix Frankfurter: Well, we haven't got the opportunity.

Mr. Herman E. Frick: That's right.

Justice Felix Frankfurter: I didn't even --

Mr. Herman E. Frick: I mean --

Justice Felix Frankfurter: (Voice Overlap) by the purposely can (Voice Overlap) --

Mr. Herman E. Frick: We -- we're -- I'm not trying to keep anything from the Court.

Justice Felix Frankfurter: Well, I --

Mr. Herman E. Frick: I would like the Court to understand that.

Justice Felix Frankfurter: I'm sorry.

If I conveyed such an impression, I didn't mean to.

My language was impermissible.

Mr. Herman E. Frick: But I think both Mr. Lusky and I will be willing to stipulate that he was charged with loitering and disorderly conduct by the appropriate slip of paper in the Louisville Police Court.

Argument of Attorney General

Mr. Attorney General: If it please the Court, since counsel has invited a stipulation, I -- I would say that the original record which is in this Court does include the arrest slips, which items 1 and 2 in that record.

I've asked the marshal to get the record and it will be here in a few minutes.

Rebuttal of Herman E. Frick

Mr. Herman E. Frick: That was an error on my part.

I did not know it was here.

Justice Felix Frankfurter: How did the -- was there at any time, an attack or is the attack that that statute as such, without further ado, is violative of the Fourteenth Amendment?

Are you going to -- is -- is that in the case, but you have to address yourself to that question or to the question that as applied, meaning by that that there was no evidence to sustain it, a judgment of -- a sentence was secured baseless so far as evidence is concerned?

What is it you're going to speak against, Mr. Frick?

Mr. Herman E. Frick: Well, I've had some difficulty --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Herman E. Frick: -- determining it myself, Your Honor.

But as I understand it, one of the complaints made by the petitioner is that he -- his client was convicted without evidence and he had no method of either appeal or corrective judicial review.

Now, (Voice Overlap) --

Chief Justice Earl Warren: But was there any evidence?

Mr. Herman E. Frick: In my opinion, there was, Your Honor.

Chief Justice Earl Warren: What was it?

Mr. Herman E. Frick: Well, I think we will recite what the evidence show.

The evidence --

Justice William J. Brennan: Excuse me, Mr. Frick.

He directed himself now to both of the charges or the separate charges?

Mr. Herman E. Frick: They were separate charges, Your Honor, but they were tried together and the --

Justice William J. Brennan: The loitering?

Mr. Herman E. Frick: The loitering and the disorderly conduct were tried together and the conclusion of the testimony, the judge fixed a sentence of $10 on each offense.

Justice William J. Brennan: Have you -- you defend both convictions?

Mr. Herman E. Frick: Yes, sir.

Justice William J. Brennan: On the same evidence or on different --

Mr. Herman E. Frick: On the same evidence.

There's a --

Justice William J. Brennan: The same.

Mr. Herman E. Frick: -- slight difference of evidence and of course, in all these cases for a police court where there are these minor offenses, not a great deal of evidence is adduced.

But briefly, this is what happened.

On this particular occasion, there were two police officers Officer Lacefield and Officer Barnett.

They went into this tavern and barroom known as the Liberty Inn Café.

Under the law of the City of Louisville, by ordinance, a condition is made before the issuance of any license for the sale of alcoholic beverages that it may be entered at any time by a police officer to observe whether or not orderly conduct is being carried on, on the premises.

So, pursuant to that ordinance and as a routine check, these two individuals went into the Liberty Inn Café.

When they arrived in the Liberty Inn Café, one officer testified, the only one who testified, they went up to the manager of the premises and asked him what that fellow was doing, pointing to Sam Thompson.

And they asked him whether or not, he had bought anything to eat or drink while he had been there.

The manager told them that he had bought nothing to eat, nor drink and that he had been there about 30 or 35 minutes.

At this time, the officer testified, “Sam Thompson was standing in the center of the floor dancing by himself, neither eating nor drinking, but merely dancing.”

And Officer Lacefield -- incidentally, Mr. Harlan, the officer who arrested the individual was Mr. Lacefield who did not know at the time of the arrest, anything about the previous trouble that Sam Thompson has been in.

The other officer, Mr. Barnett, told the manager that he knew of some trouble that he had been in at the bus station before.

Now, Officer Lacefield, in arresting this fellow, asked him what he was doing on the premises.

Now, instead of saying that he was there to eat or drink anything, Mr. Thompson said that he was waiting for a bus.

As the officer testified, the Liberty Inn Café faces on Liberty Street, which is a one-way street going west.

If Mr. Thompson wishes to catch a bus, he must go out of that building, go down the street and down to the corner and catch a bus going east.

So, on that basis, apparently, Officer Lacefield felt that there was not a satisfactory account given by Thompson and thereupon, arrested him.

Justice Charles E. Whittaker: Mr. Fink.

Mr. Herman E. Frick: Yes.

Justice Charles E. Whittaker: Mr. Fink.

Mr. Herman E. Frick: Frick, sir.

Justice Charles E. Whittaker: Mr. Fink, may I ask you where you would have had him wait for the bus on this February 9th?

Mr. Herman E. Frick: Of course, I am not going to tell anyone where he is to wait, Your Honor.

Justice Charles E. Whittaker: At the bus station?

Mr. Herman E. Frick: But this is not at the bus station.

Justice Charles E. Whittaker: No.

Mr. Herman E. Frick: And bear in mind (Voice Overlap) --

Justice Charles E. Whittaker: No, would you have him --

Mr. Herman E. Frick: -- five feet -- from five blocks or so from a bus station.

Justice Charles E. Whittaker: Would you have him wait at the bus station?

Mr. Herman E. Frick: I think that he could.

Justice Charles E. Whittaker: That's where he was arrested for doing that just three days before.

Mr. Herman E. Frick: Some time before, Your Honor, but that is not the case which is before us now.

Justice John M. Harlan: (Voice Overlap) --

Mr. Herman E. Frick: There is another thing that he -- excuse me.

Excuse me, sir?

Justice John M. Harlan: He would go at gunshot at the bus station.

Mr. Herman E. Frick: Well, that's what he [Laughter] -- that's what his attorney said, Your Honor.

Justice Felix Frankfurter: Suppose --

Mr. Herman E. Frick: Now, here's what he could have done.

Justice Felix Frankfurter: Suppose he'd said to the policeman, “It's none of your business why I'm here.”

Would he -- would've -- would he have been within his constitutional rights?

He might have been rude, but would he have been within his constitutional rights if he told him, “It's none of your business?”

Mr. Herman E. Frick: Well, I would say that under the circumstances, he would not have been within his constitutional rights.

Justice Felix Frankfurter: Why, because he wasn't (Voice Overlap) --

Mr. Herman E. Frick: Because, under our ordinance --

Justice Felix Frankfurter: Pardon me?

Mr. Herman E. Frick: Under -- under our ordinance, Your Honor --

Justice Felix Frankfurter: Would that forbid a man from being in (Voice Overlap) --

Mr. Herman E. Frick: No, sir.

It does not forbid him there, but he should be there for the business purpose of the proprietor.

Justice Felix Frankfurter: Well, what's this --

Mr. Herman E. Frick: And he was not there on a business purpose of the proprietor.

Justice Felix Frankfurter: What is the police --

Mr. Herman E. Frick: He was there loitering.

Justice Felix Frankfurter: -- what is the policeman's business while a man is in a saloon?

So long as he doesn't misbehave himself overtly.

Mr. Herman E. Frick: Well [Laughs] --

Justice Felix Frankfurter: I don't understand --

Mr. Herman E. Frick: The -- the business is and under this loitering ordinance, an order to preserve peace, he realize that people loiter, that they will -- but idle minds think of mischief, which will cause damage to society.

Justice Felix Frankfurter: Can you loiter inside of a barroom?

Mr. Herman E. Frick: That is the point that we're --

Justice Felix Frankfurter: Loitering means on the street, doesn't it?

Mr. Herman E. Frick: Well, now that gets to the other point.

I would like to answer Mr. Whittaker's question first and then come to you.

Insofar as where he could have waited, Your Honor, he could have waited at the bus stop itself, where he said he would -- intended to catch the bus which was --

Justice Charles E. Whittaker: (Voice Overlap) yes, but this was a cold night.

Mr. Herman E. Frick: Well [Laughs] a number of people have waited on cold nights, Your Honor, for a bus.

Justice Charles E. Whittaker: Is it a violation of the ordinance of Louisville for an old colored man to go into a bar and to be guilty of loitering and disorderly conduct simply because he taps his foot to music on a barroom floor as he waits for a bus on a cold winter night?

Mr. Herman E. Frick: That's very dramatic, Your Honor, but I plead what [Laughter] -- that what actually happened, not that he was tapping his foot.

We have to bear this in mind, that where there is a conflict in evidence, Your Honor, and there has been a conviction, that conviction must be supported.

Now, the officer testified --

Justice Charles E. Whittaker: Must be supported by what?

By evidence.

Mr. Herman E. Frick: Evidence, that's correct, Your Honor.

Justice Charles E. Whittaker: The -- the --

Mr. Herman E. Frick: Now, the evidence -- there was evidence that he was dancing, evidence of the arresting officer and ultimately, evidence of the manager of the barroom.

Chief Justice Earl Warren: What the man to the barroom say?

Mr. Herman E. Frick: On cross-examination, he was asked whether or not, the fellow was doing a shuffle dance and he answered, “Yes that he was.”

Chief Justice Earl Warren: That's precisely (Voice Overlap) --

Justice Charles E. Whittaker: Well, he said, “You might call it shuffling,” but I would say he was tapping his feet to music.

Now, isn't that what he said?

Mr. Herman E. Frick: Yes, sir, but I believe --

Justice William O. Douglas: Is that --

Mr. Herman E. Frick: -- he also went further.

I believe he admitted that it was a shuffle dance.

Justice Charles E. Whittaker: (Inaudible)

Mr. Herman E. Frick: I don't know exactly where that is right here in the testimony.

Justice William O. Douglas: Is that a crime in Louisville?

Mr. Herman E. Frick: On page 27, but Mr. -- question, “But Mr. Thompson was dancing?”

Answer, “He was shuffling around.”

Question, “Doing a kind of shuffle dance?”

Answer, “Yes.”

That's the testimony of the manager of the --

Justice William J. Brennan: What is shuffle (Voice Overlap) --

Mr. Herman E. Frick: Yes, sir.

Justice William J. Brennan: What is --

Mr. Herman E. Frick: Doing a shuffle dance.

Now --

Justice William J. Brennan: What -- what is a shuffle dance?

Mr. Herman E. Frick: Your Honor, I -- I presume it is [Laughter] some form of dancing which he uses a system of shuffling.

Now, I was not present [Laughter] -- I was not present, of course and I can't demonstrate to the Court what was involved.

Apparently --

Justice Felix Frankfurter: Is that illegal -- is that illegal in Louisville?

Mr. Herman E. Frick: No, sir.

Shuffling is not illegal in Louisville.

What is illegal, if it may please the Court, is dancing in the premises licensed to sell liquor.

Now, that does not mean that the person who dances is committing a crime, but merely that the holder of the license is forbidden to permit dancing on his premises.

In other words, a license holder is the one who violates that particular --

Justice Felix Frankfurter: And we have got the license holder before us, have we?

We have --

Mr. Herman E. Frick: No, sir, we do not.

Justice Felix Frankfurter: -- got a license --

Mr. Herman E. Frick: We do not have a license holder before us, but that demonstrates why this probably was not the type of business for which the operator of the tavern invited the public to attend on his premises.

He certainly would not invite them to attend if, by so doing, he would jeopardize his license.

Chief Justice Earl Warren: Did the owners --

Justice Felix Frankfurter: But (Voice Overlap) --

Chief Justice Earl Warren: Oh, pardon me.

Did the owner say he was unwelcomed there?

Mr. Herman E. Frick: No, sir.

The --

Chief Justice Earl Warren: Did he say he was doing --

Mr. Herman E. Frick: He said that he had no objection to his being there.

Chief Justice Earl Warren: All right.

Mr. Herman E. Frick: But he did say further --

Chief Justice Earl Warren: Did he say he was doing anything objectionable to him?

Mr. Herman E. Frick: He did not say that he was doing anything objectionable to him in the record.

What he did say was that he would object to dancing, if there were dancing because of course, that would forfeit his license.

Chief Justice Earl Warren: If there were dancing.

Mr. Herman E. Frick: Or words to that effect, that's correct, Your Honor.

Chief Justice Earl Warren: And he saw it, then he said there was nothing objectionable to him.

Mr. Herman E. Frick: That's right.

Chief Justice Earl Warren: Did he say -- did he say that this man did not buy anything or did he say that he didn't serve him anything?

Mr. Herman E. Frick: He said this, “When the -- the police testified that when he came in, that he had neither bought anything to -- neither anything to eat nor drink.”

Chief Justice Earl Warren: Did he say --

Mr. Herman E. Frick: Now, on direct examination --

Chief Justice Earl Warren: Did he say -- did he say positively that he did not buy anything to eat or drink?

Mr. Herman E. Frick: At the trial, he said -- he -- this is what he said positively.

Chief Justice Earl Warren: Where (Voice Overlap) --

Mr. Herman E. Frick: He said that he did not know whether he had bought anything to eat or drink.

Chief Justice Earl Warren: Isn't that different?

Mr. Herman E. Frick: And he could've -- that he could've bought something.

Chief Justice Earl Warren: Isn't that different than to say that he did not buy anything, as you have just stated?He said he didn't know of him having buy -- bought anything and he had other people in there who were serving customers, did he not?

Mr. Herman E. Frick: Yes, sir.

Chief Justice Earl Warren: Then, why do you tell us that he said that he did not buy anything?

Mr. Herman E. Frick: What -- well, Your Honor, if I may tell you what I said --

Chief Justice Earl Warren: Well, it's going to --

Mr. Herman E. Frick: I said, when the police officer --

Chief Justice Earl Warren: (Voice Overlap) show me -- show me in the record where -- what he did say.

Mr. Herman E. Frick: On -- now, this is at the time of the officer's testimony --

Chief Justice Earl Warren: I don't care when it is.

Just show me in the record where he said the man positively did not buy anything.

That's all I want to know.

Mr. Herman E. Frick: On page 2, Your Honor, testimony of Officer William Lacefield.

Chief Justice Earl Warren: Well, Officer Lacefield couldn't testify that he didn't buy anything.

He only came in there at the moment he arrest him.

This man had been in there for half hour.

You were talking about the manager of the -- of the inn.

Mr. Herman E. Frick: Your Honor --

Chief Justice Earl Warren: Where did he say the --

Mr. Herman E. Frick: Your --

Chief Justice Earl Warren: Where did he say?

Mr. Herman E. Frick: All right.

Now, let me make this point.

Your Honor, I'm telling you what Officer Lacefield said at the time when he testified as to the arrest.

On this question, he said, “I walked over and asked the bartender if he had bought anything in there and how long he had been there and he told us that he had been there a little over a half hour and that he had not bought anything.”

All right, now, that's what --

Chief Justice Earl Warren: Well, that's hearsay --

Mr. Herman E. Frick: Now, that's --

Chief Justice Earl Warren: That's hearsay, isn't it?

You --

Mr. Herman E. Frick: Yes, sir.

Chief Justice Earl Warren: You had the --

Mr. Herman E. Frick: That is hearsay.

Chief Justice Earl Warren: The manager himself testified --

Mr. Herman E. Frick: Yes, sir.

Chief Justice Earl Warren: -- did he not?

Mr. Herman E. Frick: Now, on the testimony of William Marks (ph) at the trial at -- that's on page 28, Your Honor.

Chief Justice Earl Warren: Yes, I have it.

Mr. Herman E. Frick: You do know this question, “You do know this fellow, Thompson, had been there for half an hour and had not eaten anything?”

Answer, “I didn't see him eat anything.”

Question, “If he had had anything to eat or to drink, you would have known about it.”

Answer, “It seems like I would.”

Question, “Because you were there all the time?”

Answer, “Yes.”

Now later on, what Your Honor is referring to, at the bottom of the page, “But you never saw him buy anything.”

Answer, “No.

That don't mean he didn't buy anything.

He was standing out there on the floor.”

That is the part to which Your Honor is referring to.

Chief Justice Earl Warren: Yes.

Mr. Herman E. Frick: Now --

Chief Justice Earl Warren: He didn't say that he never bought anything.

He just said that he didn't see him buy anything.

Mr. Herman E. Frick: Well, that is -- that is true, but --

Chief Justice Earl Warren: And he said he could have bought something without his seeing.

Mr. Herman E. Frick: That's right.

Chief Justice Earl Warren: Yes, all right.

Mr. Herman E. Frick: Now --

Chief Justice Earl Warren: That's all I wanted to know.

Mr. Herman E. Frick: The point that I was making was that at the time of the arrest --

Chief Justice Earl Warren: I beg your pardon?

Mr. Herman E. Frick: The point that I was making that at the time of the arrest, according to Lacefield, the arresting officer, he was informed by the manager that he had not bought anything to eat or drink.

That was the point I was trying to make to Your Honor.

And if I didn't do that, I apologize to the Court.

Justice Felix Frankfurter: Mr. Frick, may I ask you --

Mr. Herman E. Frick: Now --

Justice Felix Frankfurter: May I ask you -- may I ask you this question.

Assume that one takes your view of the evidence just as you present it, as you stated.

What I would like to have your views on this is whether, under Kentucky law -- Louisville ordinance law, finding a man in the saloon who shuffles, one doesn't know whether he's done it out of exuberance for 2 minutes or for 20 minutes and assume further that he hasn't bought any drink or a sandwich, does that constitute loitering or vagrancy under Louisville ordinance law?A

nd if it does, if that's all the evidence established there, is that consonant with the Fourteenth Amendment?

The two questions I'd like you to answer.

Mr. Herman E. Frick: Well, I think, briefly and this particular case has demonstrated.

It was so held to constitute loitering under the ordinance.

The ordinance provided --

Justice Felix Frankfurter: Is finding a man in a saloon who happens to shuffle his feet with -- and hasn't bought a drink yet, that constitutes loitering and vagrancy?

And that's what -- and that's the -- if that's the construction of the statute --

Mr. Herman E. Frick: That's --

Justice Felix Frankfurter: -- might be the ordinance of the statute, you think that makes -- that doesn't defend the Due Process Clause of the Fourteenth Amendment.

Mr. Herman E. Frick: I think it -- well, of course, Your Honor, this is an ordinance rather than a statute --

Justice Felix Frankfurter: No, well --

Mr. Herman E. Frick: Ordinance of the city --

Justice Felix Frankfurter: -- for all purposes --

Mr. Herman E. Frick: I believe that -- that the facts is --

Justice Felix Frankfurter: That's all there is.

If that's all --

Mr. Herman E. Frick: That's all -- that's all there is as far as the loitering charge.

As far as the disorderly conduct charge is concerned, that was another piece of evidence (Voice Overlap) which I'd like to tell the Court.

Justice William J. Brennan: Mr. Frick, may I declare what you just answered to Mr. Justice Frankfurter, as you said that no basis for the conviction for disorderly conduct is relied upon as having happened in the bar, is that true?

Mr. Herman E. Frick: That's correct, Your Honor.

Justice William J. Brennan: And it's only the loitering conviction that depends on what happened in the bar.

Mr. Herman E. Frick: That is correct, Your Honor.

Justice William J. Brennan: Are you're going to go to the disorderly conduct charge as based on what happened on the sidewalk, is that it?

Mr. Herman E. Frick: The disorderly conduct evidence --

Justice Felix Frankfurter: But before you do that, would you answer whether it's constitutionally allowable for the City of Louisville to make it an offense to be in a barroom and to do nothing else than to shuffle, whatever that may mean or you've said a bit and not have bought a drink or in the barroom, does that -- that's made a crime.Is that allowable under the Constitution of --

Mr. Herman E. Frick: I believe, Your Honor, that it is -- with this background, that loitering ordinances and statutes are recognized to be an -- constitutional exercise of power.

Justice Felix Frankfurter: Well, you can't say --

Mr. Herman E. Frick: Now --

Justice Felix Frankfurter: It can't be practically as broad as that.

Mr. Herman E. Frick: Now --

Justice Felix Frankfurter: You cant -- are you suggesting that merely before the legislative body, whether of the state or a city, says something in to be loitering, that's an end of the matter and you he can't inquire into it?

Mr. Herman E. Frick: No, sir.

I don't say that at all, Your Honor, but I'm just giving that background.

Justice Felix Frankfurter: But you --

Mr. Herman E. Frick: Now, the next point --

Justice Felix Frankfurter: The background you give I can't accept, namely, that all loitering statutes and all vagrancy statutes are constitutional.

I should think there's a great deal to be --

Mr. Herman E. Frick: Well.

Justice Felix Frankfurter: -- said to the contrary.

Mr. Herman E. Frick: Well, I think Your Honor is quite right.

Justice Felix Frankfurter: So --

Mr. Herman E. Frick: Now --

Justice Felix Frankfurter: So this Court has so held in us in the servitude.

Chief Justice Earl Warren: Suppose he --

Mr. Herman E. Frick: Now, the question is --

Chief Justice Earl Warren: Suppose he was in a department store and was shuffling alone in a department store and haven't purchased anything for half hour.

Would he be guilty of loitering?

Mr. Herman E. Frick: I think, under certain circumstances, he might.

It would depend on the particular facts in this case, Your Honor.

Chief Justice Earl Warren: There'd be a lot of women in jail, sir.[Laughter]

Mr. Herman E. Frick: Well, that's true, but now, you make this distinction.

If those women are in there for the business purpose of the store, namely, to shop or to -- or to apprise themselves the prices for the object of future purposes, that would be a different situation.

But where the person would go into a store with not the single desire or purpose ever to indulge in business with that proprietor of those premises --

Chief Justice Earl Warren: Ever as long as they live?

Mr. Herman E. Frick: Ever as long as they live or at any time at all --

Chief Justice Earl Warren: Do you say that --

Mr. Herman E. Frick: I think that under those circumstances, that could constitute loitering.

Chief Justice Earl Warren: Do you say that this evidence shows that -- that this man, no matter how long he might live, had no intention ever of buying anything in this store because of the evidence you have here?

Mr. Herman E. Frick: Well, Your Honor, I don't think it does.

Chief Justice Earl Warren: Well, of course --

Mr. Herman E. Frick: But --

Chief Justice Earl Warren: How does that apply then to the department store?

Mr. Herman E. Frick: Well, what I'm saying is this.

That it's a concept that -- that a business operator invites the public for his business purpose.

Now, the business purpose of this barroom was to sell food and to sell drink.

The business purpose is not to provide a place to wait for a bus, nor is it, quite clearly, a place where one may dance.

Chief Justice Earl Warren: Isn't the purpose of a place -- of a place of business what the operator of it considers it to be?

And if he considers a man was properly there, if he wasn't doing anything that was specifically unlawful, isn't he there lawfully?

Mr. Herman E. Frick: But he is there upon the expressed permission of the proprietor or by -- on the implied permission, I think he is there properly.

Chief Justice Earl Warren: If he's there under the expressed or implied, you say?

Mr. Herman E. Frick: Yes, sir.

Chief Justice Earl Warren: Well,

Mr. Herman E. Frick: Yes sir.

Chief Justice Earl Warren: -- didn't -- didn't the owner say that the man was welcome there that he had no objections to him being there and haven't done anything offensive?

What more could you -- what more could you ask to have -- have an implied willingness for him to be there?

Mr. Herman E. Frick: Well, Your Honor, I have expressed my opinion, namely, that the implied indication was only for the purpose of the business.

Now, the fact that there are a crowd of people there and there was no objection by the proprietor or the operator of the premises, I think is evidence which should be considered.

Justice Felix Frankfurter: Mr. --

Mr. Herman E. Frick: But --

Justice Felix Frankfurter: -- Frick, I don't know about Louisville, but in -- but in New York and Boston, I suppose thousands and thousands of people enter saloons on errands of necessity.

Mr. Herman E. Frick: I suppose that's quite true, Your Honor.

Justice Felix Frankfurter: And don't buy a drink, I mean.

Mr. Herman E. Frick: To -- to get back to the evidence, there's very little evidence of disorderly conduct.

It's contained in the record that, when he is -- that when Sam Thompson was taken outside the barroom, he argued back and forth with the policeman and thereupon, they placed the disorderly conduct charge against him.

That -- that is -- that is the evidence which relates to the disorderly conduct.

Justice Charles E. Whittaker: (Voice Overlap) that's all you claim that constitute disorderly conduct?

Mr. Herman E. Frick: Yes, sir.

Justice Charles E. Whittaker: You do not relate the shuffling inside disorderly conduct?

Mr. Herman E. Frick: No, sir.

Justice Charles E. Whittaker: On one thing --

Mr. Herman E. Frick: Yes, sir.

Justice Charles E. Whittaker: -- what as he got outside, it's in the record inside taken outright while he waited for what you call in the right?

Mr. Herman E. Frick: I presume so.

Justice Charles E. Whittaker: Well, that's what the record shows to tell me.

There were some arguments between the officers.

Mr. Herman E. Frick: That's correct.

Justice Charles E. Whittaker: Now, a man protested that he was being persecuted because he's been arrested several times before for minor offenses and there was an argument of it and that's if --

Mr. Herman E. Frick: Well, to the extent of it, I don't know.

The testimony is very sketchy on that part.

It was just that he argued back and forth with the arresting officer and on that basis --

Justice Charles E. Whittaker: Not disorderly conduct under your ordinance?

Mr. Herman E. Frick: Well, to get back to these offenses again, I don't think it's the greatest evidence in the world, but I think it is sufficient evidence of disorderly conduct.

Chief Justice Earl Warren: To put a --

Mr. Herman E. Frick: In other words --

Chief Justice Earl Warren: -- man in jail.

Mr. Herman E. Frick: -- to create a disturbance on the streets.

Chief Justice Earl Warren: To put a man in jail -- you could put a man in jail for -- for arguing back and forth with the police officer when he's put under arrest, is that correct?

Mr. Herman E. Frick: That's what happened in this case, Your Honor.

Chief Justice Earl Warren: And you say that's correct?

You should -- is competent evidence and sufficient evidence to send a man to jail?

Mr. Herman E. Frick: I think that evidence of argument which results in public disorder is sufficient evidence.

Chief Justice Earl Warren: Was there anything in the -- in the evidence to say that it resulted in public disorder?

Mr. Herman E. Frick: No, sir.

Chief Justice Earl Warren: Well, then why do you add that to it?

Mr. Herman E. Frick: Well, Your Honor, I don't know how to answer that question.

I think that the first thing to do would be just to read this part of the record which relates to it.

Chief Justice Earl Warren: Well, there -- there isn't -- I don't think anybody is arguing with you that all the evidence shows is that he argued back and forth with the officers about his arrest.

Now --

Mr. Herman E. Frick: That is correct.

I --

Chief Justice Earl Warren: And that --

Mr. Herman E. Frick: I will -- I will say that that's what the evidence shows, Your Honor.

Chief Justice Earl Warren: Yes.

Mr. Herman E. Frick: And not -- not as all that shows --

Chief Justice Earl Warren: Yes.

Mr. Herman E. Frick: -- in connection with the disorderly conduct.

Chief Justice Earl Warren: And you say that that's sufficient under you laws, to put a man in jail?

Justice William J. Brennan: That's what your court knows.

Mr. Herman E. Frick: To arrest him for disorderly conduct.

Justice William J. Brennan: And to convict him.

That's exactly what this case is about.

Chief Justice Earl Warren: Yes.

Mr. Herman E. Frick: Exactly, Your Honor.

Chief Justice Earl Warren: Yes.

Justice William J. Brennan: Mr. Frick, may I ask -- ask -- mind what -- join with me at the top of page 3.

Mr. Herman E. Frick: Yes, sir.

Justice William J. Brennan: Now, those three lines, “Went outside, he was very argumentative.

He argued with us back and forth and so then, we placed a disorderly conduct charge on him.”

Is that the whole basis of this conviction?

Mr. Herman E. Frick: Of disorderly conduct, yes, sir.

Justice William J. Brennan: Just those three lines?

Mr. Herman E. Frick: Those three lines, yes, sir.

Justice William J. Brennan: Now, there's nothing then to indicate his demeanor when he was arguing?

Mr. Herman E. Frick: No, sir.

Justice William J. Brennan: Do we know whether it was boisterous or whether it was quiet?

Mr. Herman E. Frick: We know no more than what is contained in those three lines, from one line at the bottom of page 2 and the three lines at the top of page 3.

Justice William J. Brennan: So that, he might have been discussing his arrest very quietly with the officers.

Mr. Herman E. Frick: Well, if -- if that is compatible with the idea of argument.

Justice William J. Brennan: Well, isn't it, or is it?

Do you think it's not?

Mr. Herman E. Frick: I -- I do not know whether that is compatible.

It seems to me that the idea of argumentativeness might be loud and -- and normally --

Justice William J. Brennan: Well, this is an argument that's going on here.

Mr. Herman E. Frick: (Voice Overlap) but there is -- there's -- there's nothing in the record to indicate it was loud argument or quiet argument or any other kind (Voice Overlap) --

Justice William J. Brennan: Well, you're making an argument now, aren't you?

Mr. Herman E. Frick: I hope so, Your Honor.

[Laughter]

Justice William J. Brennan: Is -- isn't this testimony compatible with his having made the same kind of argument with the police officer?

Mr. Herman E. Frick: I suppose so, Your Honor.

Justice John M. Harlan: But he said in himself on page 24 with respect to the contrary.

Mr. Herman E. Frick: Yes, sir.

I believe his testimony was to that effect.

Justice John M. Harlan: Is that where you were --

Mr. Herman E. Frick: I don't remember.

Justice John M. Harlan: -- were you -- “Were you or not respectful to the officers?”

Answer, “Yes, I was.

I've never been any other way.

I just asked them what they are arrested me for.”

Question, “You didn't argue with them?

You just asked them what they were arresting you for?”

“Yes, I asked what he was locking me up for and he said for loitering and vag” was that, vagrancy?

Mr. Herman E. Frick: That's vagrancy, yes, sir, Your Honor.

That's a colloquial or abbreviation of the crime of vagrancy.

Justice John M. Harlan: You say that is a disputed of issue of fact between whatever it meant by the officer's testimony and --

Mr. Herman E. Frick: (Voice Overlap) --

Justice John M. Harlan: -- you were arguing and this man's testimony that he was just an --

Mr. Herman E. Frick: There was no argument.

Justice John M. Harlan: -- impolite inquiry.

You say that's an issue of fact.

Mr. Herman E. Frick: That there was no argument.

Justice Charles E. Whittaker: What do you say, sir, about the two questions involved, number one, is there any forum in Kentucky where this man might, under these circumstances, seek relief from the judgment of the $10 fine imposed by the police court would have --

Mr. Herman E. Frick: Yes, sir.

I believe that there could have been.

Under Section 110 of our Constitution which is the one that gives to our Court of Appeals jurisdiction over inferior courts.

Now, as mentioned by my opponent, Mr. Lusky, the Kentucky cases are to the effect that the mere monetary amount is insufficient to confer jurisdiction under Section 110 on our Court of Appeals, because that would amount to a substitute for an appeal.

But all of these cases, like Fowler and also in this particular case here, say that where there is a great and irreparable injury that then, an application may be made to Section 110 of the Kentucky Constitution.

Justice Felix Frankfurter: But, in this case --

Mr. Herman E. Frick: That --

Justice Felix Frankfurter: In this case, could an appeal have been taken from this conviction?

Mr. Herman E. Frick: No, sir --

Justice Felix Frankfurter: To a higher court --

Mr. Herman E. Frick: -- an appeal could not have been taken.

Justice Felix Frankfurter: -- to a higher court in Kentucky?

Mr. Herman E. Frick: An appeal as such could not have been taken.

I believe that an application could have been made to the Kentucky Court of Appeals under Section 110, the right to control an -- inferior courts setting forth this alleged gigantic conspiracy between the Louisville police judge and the Louisville police force.

Justice Felix Frankfurter: And is that --

Mr. Herman E. Frick: And that would have been such a great mere reparable injury that under those circumstances, the Kentucky Court of Appeals would have taken jurisdiction.

Now, let me point out one more thing --

Justice Felix Frankfurter: May I -- may I shorten, I read this discussion by suggesting that either an appeal could have been taken to a higher court in Kentucky or it couldn't have in whatever the form in which appeals are taken in Kentucky about which I know nothing.

If an appeal is -- could be taken to a higher court, then you should oppose the jurisdiction of this Court because if an appeal could be taken to the highest court, we haven't got jurisdiction of an inferior court.

Now, which is it, could an appeal be taken to a higher court (Voice Overlap) --

Mr. Herman E. Frick: I believe that it could have, under the facts in this case, under Section 110 --

Justice Felix Frankfurter: But you are (Voice Overlap) --

Mr. Herman E. Frick: -- on the constitution.

Justice Felix Frankfurter: When you are to argue against our jurisdiction because you rightly haven't got jurisdiction.

Mr. Herman E. Frick: Well, shall I take one minute for that, Your Honor?

Justice Felix Frankfurter: Well, I don't know if (Voice Overlap) --

Mr. Herman E. Frick: All right.

Justice Felix Frankfurter: Not to please --

Mr. Herman E. Frick: Here's the situation.

Justice Felix Frankfurter: Not to please me, but if the law warrants you.

Mr. Herman E. Frick: Here's a situation.

In this particular case, there was a writ of habeas corpus applied for to our Circuit Court to stay the execution of the sentence of this police court pending its review by this Court.

It was issued by the Circuit Court.

The City of Louisville objected on the ground that there is no such jurisdiction under our law.

It was appealed to the Court of Appeals.

Now, this is a collateral proceeding on habeas corpus and on this collateral proceeding, the Court of Appeals reversed the circuit judge on a habeas question -- habeas corpus question, saying that it alone had jurisdiction under Section 110 and said further, recognizing this fact that in a $5 or $10 appeal as such, there was no review and therefore, the only remedy was to the Supreme Court of the United States.

They say further, they -- by dicta, they set out this other idea that if there is a great and irreparable injury, this Court will take jurisdiction.

They also recite that this was an extreme case.

Now, I believe that -- without speculating, what a court would have done.

That in this collateral proceeding, if they felt that that was sufficient under Section 110 to take jurisdiction and on their own motion, order a stay of proceedings in the Louisville Police Court so that they might go to this Court.

That that court likewise, if they consider this case as important, would have the authority when the principal case and on the merits, comes before to taking grant relief.

Now, that is my position, but the Court of Appeals was never given an opportunity --

Chief Justice Earl Warren: Is that -- is that argued in your brief, Mr. Frick?

Mr. Herman E. Frick: -- as such --

Chief Justice Earl Warren: Is that argued in your brief?

Mr. Herman E. Frick: It's argued some places in my brief.

Chief Justice Earl Warren: Where?

Mr. Herman E. Frick: I don't remember exactly where.

I'd like to make just one more point.

Now, as far as the Kentucky Court of Appeals is concerned, this is direct from the Louisville Police Court to the Supreme Court of the United States.

The Court of Appeals of Kentucky has not been asked to grant relief to this petitioner on any violations of constitutional rights.

Now, he has constitutional rights both under the Federal Constitution and under our State Constitution.

They had never been asked to do that, so, I don't see how that you can complain about the Kentucky Court of Appeals when they have not had an opportunity to pass on the merits of this question, but only on the collateral point which they considered important enough to grant relief on their own motion.

Justice Charles E. Whittaker: I wonder if I correctly understood you or you -- if I did, you really said what you meant.

I understood you to say that the Court of Appeals, on this state proceeding, said that the only place where the man could have relief was here.

Mr. Herman E. Frick: That is correct, Your Honor.

Justice Charles E. Whittaker: Did you say that?

Mr. Herman E. Frick: That -- that is correct.

Justice Charles E. Whittaker: Well then, that's to say they couldn't grant any, is it?

Mr. Herman E. Frick: I don't know what you can say unless the question is presented to a court.

Bear in mind, this is a collateral proceeding.

Under Section 110, the Kentucky Court of Appeals grants relief on its own motion.

They grant a stay of proceedings without being asked for to the petitioner.

Now, if they have that authority and deem it important enough in a collateral manner, they certainly have authority in the principal matter to consider it important enough.

Justice John M. Harlan: I didn't understand from anything in your brief (Inaudible) again that you claimed that we didn't have jurisdiction.

Mr. Herman E. Frick: I believe I raised it.

Justice John M. Harlan: Where is it?

Mr. Herman E. Frick: I didn't make any specific claim as such.

Justice John M. Harlan: I didn't see it.

Mr. Herman E. Frick: I was talking about the right of -- right of review.

Justice Felix Frankfurter: Well, whether you claim it or not, if there be opportunity of reviewing this police court judgment in a Kentucky court, then we haven't got jurisdiction whether you have brought it home to our understanding or not.

Either there is or isn't, reviewing power in -- from higher court in Kentucky of this police court judgment, if there is, then we have directed jurisdiction.

Mr. Herman E. Frick: Is there --

Justice Felix Frankfurter: I'm not (Voice Overlap) --

Mr. Herman E. Frick: -- the only way that I can ask, it may -- we may or may not have jurisdiction in the Kentucky Court of Appeals.

I'd like for the Court to understand that, that it is discretionary under Section 110, whether or not, the Kentucky Court of Appeals will review.

Now, they have said that in a case where there is a simple fine of $5 or $10, they will not grant relief under Section 110.

But, where a great and irreparable injury is done, then they will grant relief under Section 110.

So, Mr. Frankfurter -- Judge Frankfurter, I don't know how to answer your question whether there is or is not an appeal.

Justice Charles E. Whittaker: Well --

Mr. Herman E. Frick: It's speculation.

That's why I've started off by saying that there was speculation in this case.

Justice Charles E. Whittaker: But you are the one who had asked.

Mr. Herman E. Frick: They were not asked.

That is correct, Your Honor, as such.

Justice Hugo L. Black: I understood you to say that they granted relief that was not asked at all.

Mr. Herman E. Frick: They did on the collateral point, that is, a stay of proceedings.

Justice Hugo L. Black: And his relief on what basis?

Mr. Herman E. Frick: On the basis of Section 110, they --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Herman E. Frick: -- say that we have a power under Section 110 of the Kentucky Constitution over control of the inferior courts to grant this right.

Justice Hugo L. Black: Is that the one you say -- is that the one you say they could have granted more relief on -- if that --

Mr. Herman E. Frick: Yes, sir.

Justice Hugo L. Black: -- in the regular question, maybe they could?

Mr. Herman E. Frick: Maybe they could.

I don't know.

Justice Hugo L. Black: Well, why are -- how are we to assume that they would decide, if they didn't get to this is the only court they had to rely if you are now saying that on the same facts presented to them and asked them to grant direct appeal by the judge?

How can we accuse the -- if that were for your court?

They said, didn't it, that this is the only place you'd get relief.

Mr. Herman E. Frick: They said that in the collateral proceeding.

Yes, sir.

Justice Hugo L. Black: But now --

Mr. Herman E. Frick: But now, they were not asked for relief on the other point.

Now, there may or may not --

Justice Hugo L. Black: But they were now being asked for the relief they granted, were they?

Mr. Herman E. Frick: Excuse me, sir?

Justice Hugo L. Black: I understood you to say they were not even asked for the relief they did grant.

Mr. Herman E. Frick: That's right.

On their own -- on the court's own motion that granted the stay of proceeding in the collateral case.

Justice Felix Frankfurter: You would ask habeas corpus, a writ.

You would ask for a writ.

There was a -- there was a proceeding before your court indicated by this petitioner.

Mr. Herman E. Frick: Initiated by the City of Louisville.

We appealed in the collateral.

Justice Felix Frankfurter: But you (Voice Overlap) what he did.

Mr. Herman E. Frick: That's right.

Justice Felix Frankfurter: He started a -- he started habeas corpus, didn't he?

Mr. Herman E. Frick: That's right.

Justice Felix Frankfurter: And he's got to the Court of Appeals.

Mr. Herman E. Frick: We appealed.

Then --

Justice Felix Frankfurter: So, you appealed.

Mr. Herman E. Frick: Then, the Court of Appeals in the opinion which is attached to this -- an appendix to the petition for certiorari says that we have the power.

We will not require the petitioner to file a new application with us under 110, when we will grant the relief anyhow.

So, we will hereby authorize a stay of proceedings, which was not asked for by the petitioner in the appeal.

Justice John M. Harlan: I noticed in your -- state constitution says, referring to the power of the Courts of Appeal, said courts shall have power to issue such writs as may be necessary to give it a general control over inferior jurisdiction.

That seems to be very broad.

Mr. Herman E. Frick: Yes, sir.

Justice John M. Harlan: How has that been construed?

Mr. Herman E. Frick: That has been construed for such writs as writs of prohibition to present -- to prevent great and irreparable injury.

Justice John M. Harlan: Has it been construed to apply to a case where, although there is no direct right of appeal because of the size of the fine, as here, that none (Inaudible) the Court of Appeals under certain situations will issue extraordinary writs to review those cases?

Mr. Herman E. Frick: No, sir.

There isn't -- there is another case which says that where a constitutional right may be involved, I think it's the Fowler case, where a constitutional right may be involved but the fine is only $5 or $10 and there's no other showing of great or irreparable injury, relief will not be granted.

That's the reverse of the situation.

Justice John M. Harlan: What's that case?

Mr. Herman E. Frick: That's -- that's cited by the petitioner in his brief, Fowler versus --

Justice Charles E. Whittaker: Fowler?

Mr. Herman E. Frick: What is it?

Unknown Speaker: Walters.

Mr. Herman E. Frick: Walters against Fowler.

But now, in that particular case, there was no showing of this gigantic conspiracy which we have in this case which may make a difference.

We're -- we're asked to speculate on what the Court of Appeals would do.

Justice Felix Frankfurter: Well, you suggested another difference, namely, you suggested the difference between a case where a fellow appeals from the fine of $10, as to which there's no appealability and where he objects to the fine on grounds of unconstitutionality.

Mr. Herman E. Frick: This Walters versus Fowler --

Justice Felix Frankfurter: Cases -- cases in different states make that distinction between appealability where a constitutional question is involved and where there isn't involved.

Mr. Herman E. Frick: Your Honor, in this Walters versus Fowler, I'd like to be fair about this.

In Walters versus Fowler, there was a $5 fine, I believe, and a question as to the constitutionality of the imposition of the fine.

And the Court of Appeals, under Section 110, refused to take jurisdiction on the ground that this was just a minor fine and there was no showing of great and irreparable injury.

Justice William J. Brennan: Well, Mr. -- Mr. Frick, what -- tell me, what do you understand that your court meant in this case by this sentence in the opinion at page 39?

It is only in extreme cases, like the one at bar, where a person wants to go to the Supreme Court, I gather, that means this Court --

Mr. Herman E. Frick: Yes, sir.

Justice William J. Brennan: -- that we will interfere with an inferior court under Section 110 when an unappealable fine has been imposed?

Mr. Herman E. Frick: That was the language which I was mentioning.

I don't know exactly what was in the mind of our Court of Appeals, but they say extreme cases and --

Justice William J. Brennan: At page 39 of the --

Mr. Herman E. Frick: Yes.

Yes, sir.

Justice William J. Brennan: -- appendix of petitioner's brief.

Mr. Herman E. Frick: Now, this was considered an extreme case on the collateral proceedings, sufficient for them to grant relief.

Justice Charles E. Whittaker: Yes, if you say so.

The application that you made in accordance directed you notwithstanding the unappealability case otherwise, they wouldn't appeal.

Otherwise, for how do you think you've depended on the next supreme case pose a much less sentence.

Mr. Herman E. Frick: I don't attempt to forecast what the Court would do.

What I am saying is that here is a case -- this very case itself on collateral proceedings where they did entertain jurisdiction under Section 110 voluntarily.

Now, if an application will be made on the merits, would the facts in this particular case be different from the facts -- sufficiently different from the facts in Walters versus Fowler, that they would take jurisdiction?

That is the question.

Justice John M. Harlan: Well, this certainly indicates that they have power to entertain it, does it not?

It does that much.

Mr. Herman E. Frick: Yes, sir.

Justice John M. Harlan: And we can't speculate as to what they would or would not have done without having an application made.

Mr. Herman E. Frick: That's correct, Your Honor.

Justice John M. Harlan: And therefore, I'd suppose you say that -- no jurisdiction up here.

Mr. Herman E. Frick: Well, I believe that can very well be argued, Your Honor.

Justice Charles E. Whittaker: And you don't argue it?

Mr. Herman E. Frick: I do argue it.

Chief Justice Earl Warren: Mr. Frick, you spoke at the beginning of your argument about some irrelevancies that have crept into the -- the record itself.

I noticed in your brief, as Appendix B, you attached the police record of Sam Thompson from January 24th, 1958 to June 24, 1959.

Is that taken from the record?

Mr. Herman E. Frick: I would like to put it this way.

Chief Justice Earl Warren: No.

Let's ask -- -- just -- just answer the question, if you please.

Is it in the record or not?

Mr. Herman E. Frick: No, sir.

Chief Justice Earl Warren: All right.

Mr. Herman E. Frick: Not as such, it is not in the record.

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Herman E. Frick: Now, let me tell you why we did that.

Chief Justice Earl Warren: Why is it in your brief?

Mr. Herman E. Frick: Now, it's in my brief.

On -- the record in the trial of this case on February the 3rd, the record shows that on page 31, that the record was shown to the police court.

I believe that -- I believe that this Court is entitled to the same evidence which a police court was shown.

Chief Justice Earl Warren: Did you give us that?

As I understood it that, the -- the record said that the police had handed -- handed the judge the record to this man and it showed 54 arrests.

Mr. Herman E. Frick: Yes, sir.

That is correct.

Chief Justice Earl Warren: Before the --

Mr. Herman E. Frick: It showed 54 arrests.

Chief Justice Earl Warren: Did you show the 54 arrests?

Mr. Herman E. Frick: No, sir.

We showed nine arrests, that is for the period of the one year preceding the arrest.

Chief Justice Earl Warren: Yes.

Mr. Herman E. Frick: The reason for that is this.

I -- the other arrests are not material.

There is no point in cluttering up the record with that.

The arrests in the year preceding are admissible because, under our alcoholic beverage statute, it is illegal for the holder of an alcoholic beverage license to sell liquor to someone who has been convicted three times in the previous year, three times or more of drunkenness in a public place.

That's what DPP is.

Now --

Chief Justice Earl Warren: But that isn't in the record.

This isn't in the record.

Mr. Herman E. Frick: Not as such.

The -- the criminal record of this man of 54 arrests was shown to the police court and the judge, at page 31, said, “Let the record show that the prosecutor showed me this record.”

The basis is not important.

It's just to show that there was some jeopardy of the license holder if he would want to sell beer to Mr. Thompson who claimed that he bought a bottle of beer on the premises.

Chief Justice Earl Warren: Let me ask you, Mr. Frick.

Has this man been arrested since this time?

Mr. Herman E. Frick: I understand that he has.

Chief Justice Earl Warren: How many times?

Argument of Louis Lusky

Mr. Louis Lusky: 12.

Rebuttal of Herman E. Frick

Mr. Herman E. Frick: 12 times.

Chief Justice Earl Warren: How many times?

Mr. Herman E. Frick: 12, Mr. Lusky says.

Chief Justice Earl Warren: 12 times for this same kind of offense?

Mr. Herman E. Frick: I'm afraid I can't answer this, Your Honor.

Mr. Lusky would have to answer that question.

Rebuttal of Louis Lusky

Mr. Louis Lusky: Well, there's a great variety of crime.

We could give you a list, if you want.

Chief Justice Earl Warren: What?

Rebuttal of Herman E. Frick

Mr. Herman E. Frick: I'd be willing to --

Chief Justice Earl Warren: All right, if you don't (Voice Overlap) --

Mr. Herman E. Frick: I'd be -- I'd be willing to stipulate that the --

Chief Justice Earl Warren: If you don't know, you can't answer.

Mr. Herman E. Frick: -- list of subsequent arrests may be given to the Court for full information.

Justice Felix Frankfurter: Do we have to pass on that, too?

Mr. Herman E. Frick: Excuse me, sir?

Justice Felix Frankfurter: Do we have to pass on that, too?

Mr. Herman E. Frick: I hope not, Your Honor, but I don't have to -- we've got into some other irrelevance either.

Justice John M. Harlan: There is lack of jurisdictional question, but I'm looking for the opinion of your Court of Appeals city ordinance, page 38, you're referring to Walters case, against Fowler, isn't it?

Mr. Herman E. Frick: Yes, sir.

Justice John M. Harlan: And you say that although if they had jurisdiction -- had jurisdiction in that case, understanding the unappealable fine to grant extraordinary writ, but they did not in that case because (Inaudible) were extreme.

And then, they go on and say that the difference between that case and this one is and in that case, the collateral would be to be to stay in the -- in the case as that kind of a thing that would -- seem they will exercise their jurisdiction on a showing of necessity short of what might persuade them to take the case on direct review.

Do I read that all correctly?

Mr. Herman E. Frick: That's my understanding of the law.

Justice Hugo L. Black: Where is that?

Mr. Herman E. Frick: It's on page 38.

Justice Hugo L. Black: I didn't understand -- I didn't understand your answer to Justice Harlan.

Mr. Herman E. Frick: That's -- I said that is my understanding of the law, that the Court of Appeals does have jurisdiction under Section 110 in an extreme case.

Justice Hugo L. Black: Has it ever taken it in a case like this?

Mr. Herman E. Frick: It -- it has never taken one in a case like this.

Justice Hugo L. Black: You have heard of it taking on all three particulars?

Mr. Herman E. Frick: They have taken -- I do recall of another case where the Court of Appeals did take jurisdiction under Section 110, which was not on a constitutional case, but which was one which was not otherwise authorized by a statute.

Justice Hugo L. Black: Is that cited, that case?

Mr. Herman E. Frick: No, sir.

That is not cited.

Justice Hugo L. Black: Could you cite it to us?

Mr. Herman E. Frick: I -- I can find it in -- I suppose, forward to the clerk.

Justice Felix Frankfurter: Mr. Lusky --

Justice Felix Frankfurter: Could you do that?

Justice Felix Frankfurter: -- argued that this --

Justice Hugo L. Black: I beg your pardon.

Chief Justice Earl Warren: Will -- will you do that?

Justice Hugo L. Black: Sure, we'll like to have it.

Chief Justice Earl Warren: Will you get that case and file it with the clerk and serve it onto counsel, please.

Mr. Herman E. Frick: All right.

Justice Felix Frankfurter: I get your -- Mr. Lusky's argument.

He argued that this is an extraordinary case on the hopes it hasn't arisen every day in Kentucky -- in Louisville.

Mr. Herman E. Frick: Unfortunately --

Justice Felix Frankfurter: (Voice Overlap) case, we don't know what they would have done.

Rebuttal of Louis Lusky

Mr. Louis Lusky: Unfortunately, Your Honor, I'm not in the position to argue.

This is an extraordinary case.

Justice Felix Frankfurter: Well, you're not in a position to argue otherwise, unless there's -- a record has made out such a case -- or your brief has made it out and neither of which is true.

Mr. Louis Lusky: I'm afraid that it is a very ordinary case.

Justice Felix Frankfurter: Yes, but you haven't shown that.

That isn't the case you're making.

You made this particular fellow as a -- as an outcast of Louisville society.That's your argument.

That was your argument yesterday.

Mr. Louis Lusky: (Voice Overlap) --

Justice Felix Frankfurter: I don't know what this will be now.

Mr. Louis Lusky: That is true, Your Honor.

And all I'm saying is that we don't claim that Sam Thompson is the only outcast that has been created by the Louisville Police Court or even that it's a very ordinary thing in Louisville.

And we assume that the reason that this Court has been willing to give its time to this case is that it's not an ordinary thing.

Now --

Justice John M. Harlan: Do you deny that it had the power unless --

Mr. Louis Lusky: I would like to speak of this jurisdictional question because, as Mr. Justice Frankfurter says, it is a basic question and -- and it goes to the -- to the root of this Court's power to hear the case.

I -- I would like to ask one thing.

I -- I didn't understand whether Mr. Frick said that this case which he intends to send to us is a case where the Court of Appeals entertained an application for relief, although the sentence was too small for appeal.

And I would like to ask whether it is such a case.

Rebuttal of Herman E. Frick

Mr. Herman E. Frick: No, sir.

That is not what I -- the case that I had in mind.

The case that I had in mind was one, if my recollection is correct, where there was a provision for the incorporation of a city where there was no right of appeal and a constitutional question was raised and the Court of Appeals granted an appeal either directly or under (Inaudible) or go with saying on a constitutional point, that always (Inaudible)

That is the case, it's Miller --

Chief Justice Earl Warren: You may --

Mr. Herman E. Frick: (Voice Overlap) versus Miller.

Chief Justice Earl Warren: Yes.

You may make the record of it and give it to the Court, please.

Rebuttal of Louis Lusky

Mr. Louis Lusky: If the Court please, I -- I am going to do my best to confine myself the 10 minutes that's been allowed.

I -- I have taken note that some indulgence had been granted to opposing counsel.

And if I run over a little bit, I -- I hope I may be forgive, particularly since this basic question of jurisdiction has been raised.

Now, I think it's quite important to understand exactly what the Court of Appeals said.

This Court has a pretty clear conception of it now, as these questions have indicated.

The situation in the Kentucky Court of Appeals is that -- that substantive relief will not be granted under the power established by Section 110 of the constitution, even though a federal constitutional claim, a due process claim is made, if the sentence is too small for appeal.

This appears in a series of cases which is cited in our brief, (Inaudible) is the latest I think, Walters against Fowler, Thompson against Wood

.And Walters against Fowler, which is the case where the point is most fully discussed, as it happens, does not specifically refer in the Court's opinion to Section 110.

So, you can't tell from reading the Court's opinion that it's a Section 110 case, although it is the only source of jurisdiction.

Now, in order to -- I thought this might puzzle the Court when the time came to read the opinion and in -- in the Walters case.

And therefore, in order to eliminate any doubt on that score, I have obtained from the clerk of the Kentucky Court of Appeals, under the seal of that court, a certified copy of the petition for relief in Walters against Fowler, which shows that relief was sought under Section 110 of the constitution.

This is a little technical question that could come up and if there is no objection, I'd like to file it in the case.

Justice William J. Brennan: No objection.

Mr. Louis Lusky: The -- now, here is exactly the -- what the Court of Appeals said, we had -- for the reasons which I explained yesterday.

We were under the necessity of keeping the petitioner out of jail for -- until we could get certiorari ruled on in this Court so that the case wouldn't become moot.

We thought that the proper -- proper remedy - remedy was habeas corpus in Circuit Court, which does have power to fix bail where it's required by law and we -- and the circuit judge agreed with us and granted it.

The city took an appeal from that to the Court of Appeals.

The city and the Court of Appeals argued that there was no way we could get a review at all, there or any place else and that therefore, it was -- it would be a futile thing to grant a stay.

That excerpts -- pertinent excerpts from their brief in that Court are cited in our -- in our brief and in our petition for -- reply brief on the petition for certiorari, the Court of Appeals held, in a 4-to-3 opinion that it would not depart from the rule of Walters against Fowler as far as substantive relief was concerned.

They did, however, agree the four-man majority -- the four-judge majority did agree that we had a federal right to an opportunity for a federal hearing on our federal claim and that they -- they could, without inconsistency with Walters against Fowler, open the way for the presentation of that claim to this Court, even though they were -- they considered themselves bound by their previous decision, not to entertain our claim on the merits.

Now, the proof of that -- the proof of that has already been suggested in questions that have been asked and it's -- and it's -- it's very obvious.

The Court was -- was indulgent with this procedure.

They said, “If we wanted to -- to cut this thing square, what we would do would be to reverse this case because Judge Lawrence Grauman in the Circuit Court had no power to grant the relief that he's granted.

And you then could come in with an application for similar relief in this Court and we would grant it.

We know we'd grant it because we've had a full hearing on the case, oral argument even, which is very rare in that court.

And so, rather -- rather than make you go to all the trouble and expense of starting over, we're going to grant this on our own motion.

Now, it is perfectly clear that if they had thought that relief could be granted on the merits, they -- in that court, they would have done one or two -- of two things.

Either they would have granted a stay long enough for us to apply in that court, or they would have granted complete relief which they could have done because they had the full record before them, including the evidence.

Now, the opinion of the court shows on its face that they had every -- everything except the transcript of the evidence.

And since that doesn't show, I have obtained from the Court of Appeals, a certificate, again, under the seal of the Court, certifying which was the fact that the evidence -- that the same evidence which is printed in the -- in the record here.

The transcripts of the two trials were filed with the Kentucky Court of Appeals in that case.

So, they had the same record which you have.

They showed that they do not consider themselves embarrassed by the failure to ask for the particular relief which they thought was proper.

And they went just as far as they could go under the Kentucky precedence to grant us relief which was simply to open the door into this Court.

Now, three judges of the court said Walters against Fowler precludes us from betting relief.

Everybody agrees to that and it's -- it's ridiculous to suggest that the Supreme Court would take its time with the case like this.

So, they dissented on the ground that the stay that was being granted would be futile, but the whole court agreed that there was no basis for substantive relief and the -- the -- if you -- if you read the -- the -- another passage of the Court.

If you -- if you will look at page 38 and the petition for certiorari in the appendix of that petition, this is what Judge Porter Sims says.

First complete paragraph, “Appellee appears to have a real question as to whether he has been denied due process under the Fourteenth Amendment of the Federal Constitution, yet, this substantive right cannot be tested unless we grant him a stay of execution because his fines are not appealable and will be satisfied by being served in jail before he can prepare and file his petition for certiorari.”

And then, they go on and, on the next page, they distinguished that Walters case not on the ground that the -- that Walters was being kicked around anymore than Thompson was being kicked around.

But, on the ground that Thompson wanted to go to a different court than Walters, was trying to get into.

It is only in an extreme case, in other words, as he says, it is only in extreme cases like the one at bar, where a person wants to go to the Supreme Court that we will interfere.

Justice John M. Harlan: In other words, what you're saying, if I get it correctly so far as direct review is concerned --

Mr. Louis Lusky: There is none.

Justice John M. Harlan: There is none.

Mr. Louis Lusky: That's right.

Justice John M. Harlan: And as far as review by this Court is concerned, they will exercise their jurisdiction over inferior courts only in extreme cases of which this was one.

Is that what you're saying?

Mr. Louis Lusky: Only in a -- in cases where a substantial federal questions are shown on the record --

Justice John M. Harlan: Yes.

Mr. Louis Lusky: -- and where the petitioner desires to get into this --

Justice John M. Harlan: Yes.

Mr. Louis Lusky: -- Court.

Justice John M. Harlan: Now, is there any case where the Kentucky Court has granted direct review?

Mr. Louis Lusky: To my knowledge, sir, there is no case where the Kentucky Court of Appeals has granted substantive relief from a sentence too small for appeal.

And -- and it -- it -- in this -- in this very case, they've -- they've specifically said they won't do it.

Now, there're are a couple more points, if I -- I may, I know my 10 minutes is nearly up, but I'd just like to run quickly through a few points which are of some importance.

First of all, it must be borne in mind that what -- that this alternative state remedy which, as has been suggested, is a collateral attack.

Now, this Court has held in the case of Largent against Texas in 318 U.S. 418, that as long as you've taken the criminal case as high as it will go on direct appeal, you are not required to exhaust extraordinary remedies set up under the state law in order to perfect the jurisdiction of this Court.

Now, it's possible that -- that the existence of such remedies might have a bearing on the -- this Court's willingness to exercise this jurisdiction by granting certiorari.

But that case says that -- that jurisdiction exist when you have taken your case to the highest state court in which a -- in which a decision can be held.

Now, the second thing I would like to say is a question was raised by Mr. Frick as to how the -- the January 20th transcript got into this February 3rd trial.

And he suggested it only got in partway because it was offered to show Dr. Dean's testimony.

The fact is that he has overlooked that it -- that it came in two ways.

It came in with connection with the avow and on -- at the -- at the top of page 70, you will see that in the avow, that this transcript was tendered for all purpose.

That a trial on said charges was held in Louisville Police Court on that date, January 20th at which no evidence was introduced to support the charges as evidenced by the transcript of evidence authenticated by the certificate of James Giovanni (ph) official stenographer of said police court.

The counterpart original copy of which transcript has attest hereto and tendered in evidence herewith, so that that whole transcript is a proper part of this record.

Now -- and incidentally, since the court rejected proof of harassment by the police, holding that it was legally immaterial, it must be assumed as a matter of law on this record that such harassment did exist.

I think that is the effect of an -- of a rejected offer of proof the -- for the -- for -- that this Court must assume the proper evidence to be true.

That was the case in Moore against Depmsey and -- and various other cases, I'm sure you're familiar with, more familiar than I am.

Now, Mr. Justice Frankfurter asked about the -- about the original charges.

This is the original record which contains photocopies of the arrest slips.

They -- they are informal.

They do contain the two charges and if the Court wishes to examine them, they're at pages 1 and 2 of the -- of the original transcript.

Justice Felix Frankfurter: Are you challenging the -- the federal constitutional validity of those provisions of the ordinance?

Mr. Louis Lusky: No, sir.

We're not.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Louis Lusky: No, sir.

We're not.

And I'll tell you why we're not.

Justice Felix Frankfurter: Well, I don't -- suit yourself.

I just want to know if you've challenged that.

Mr. Louis Lusky: We have not.

Justice Felix Frankfurter: Do you challenge the total absence of evidence as a foundation for assessment?

Mr. Louis Lusky: We have challenged the -- the judgment of the court.

That is the reason we brought this case here on certiorari rather than appeal.

We challenged the judgment of the court and the reason we did, and I think I would like to state it, if -- with -- with your indulgence, the reason we did is that it will not do this petitioner any good at all to get this statute held or ordinance held invalid on its face or as applied if our -- we are correct in our contention that he is going to be arrested whenever he is seen by a policeman because there are lots of statutes and the -- and -- and if the disorderly conduct statute is held invalid as applied in this case, why he -- he can be -- be arrested next week creating a creampuff with the -- with the wrong expression on his face and you have a new constitutional question as far as this -- the ordinance --

Justice Felix Frankfurter: But so far as --

Mr. Louis Lusky: -- is concerned.

Justice Felix Frankfurter: -- so far as we claim what you make, you've just stated that you're here challenging this judgment?

Mr. Louis Lusky: That's correct.

Justice Felix Frankfurter: That all we can reverse, whatever commentary maybe made as to the basis for reversal.

Mr. Louis Lusky: That is exactly correct, Your Honor.

That is -- that is all that's here because that the first case, we got -- we -- we already have gotten reversed in a court that had jurisdiction over it.

Now, the -- the Circuit Court, where we got our directed acquittal.

Now, on this point of -- of whether -- of whether you can do anything more than reverse, it would be presumptuous for me to suggest anything -- I mean any -- that put the right opinions for this Court.

But the -- I -- I would like to tell you one fact with which has come into existence since this -- this Court granted certiorari, which gives this case a special importance in Kentucky.

In December, the outgoing general assembly voted to call a constitutional convention.

And early this month, the new general assembly has done the same thing, so that this fall, the voters are going to -- are going to vote on whether we should have a new -- a -- a convention to revise our 1891 Constitution that contains this medieval court system.

If that convention is caused, it would be a tremendous help to the delegates of that convention.

If this Court had spelled out, at least to some extent, with special reference to the judicial system of Kentucky, what the minimum requirements of essential justice in a modern system of criminal law administration are.

And I simply say that because it so happens that this case is timely from that viewpoint.

Justice Charles E. Whittaker: May I ask you, too.

Is it clear, I'm not sure -- do we have a stipulation as to arrest of Mr. Thompson since this one in question?

Mr. Louis Lusky: Yes, sir.

That's so stipulated appeal (Voice Overlap) --

Justice Charles E. Whittaker: And how many times would --

Mr. Louis Lusky: 12 times, Your Honor.

Justice John M. Harlan: To the -- since -- since this case?

Mr. Louis Lusky: 12 times since -- since January the 24th, 1959.

He's in jail now.

[Laughter]

Justice Felix Frankfurter: But how can -- how can such a stipulation tell us the basis of this arrest?

Mr. Louis Lusky: I don't know, Your Honor.

Justice Felix Frankfurter: How can we do -- tested and suggested that we should jump to the conclusion that all these arrests are as more or less as you claim this one was?

Mr. Louis Lusky: Your Honor --

Justice Felix Frankfurter: The Court would jump you at the course you take.

Mr. Louis Lusky: I haven't asked it.

The Court asked Mr. Frick with how many times --

Chief Justice Earl Warren: I asked -- I asked the question.

You're not wording it up (Voice Overlap) --

Mr. Louis Lusky: And he -- he said he didn't know and I said 12 and -- and that I'd provide a list if he wanted and -- and Mr. Frick, who is my old friend and classmate, says that if I said, he'll stipulate it.

And that's all it amounts to, I mean, if you -- if you want it, we'll file it.

If you don't want it, we won't.

I don't --

Justice Felix Frankfurter: But you're adopting it, you're making it part of your argument.

Mr. Louis Lusky: Well, I'll say this.

Justice Felix Frankfurter: If you wanted to address (Voice Overlap) --

Mr. Louis Lusky: If any member of this --

Justice Felix Frankfurter: -- General Assembly of Kentucky.

Chief Justice Earl Warren: But I asked for it.

Mr. Louis Lusky: If any --

Chief Justice Earl Warren: I asked [Laughter] I asked for the information and he shouldn't be held responsible for my action.

Mr. Louis Lusky: If any member of the Court -- if any member of the Court would like to have it, lay with the consent of opposing counsel (Voice Overlap) --

Justice Felix Frankfurter: You -- you're making a general claim.

You want us to address, as I say, the general assembly and the people of Kentucky.

Mr. Louis Lusky: Your Honor, when this Court speaks, everyone listens.

Justice Felix Frankfurter: Well, then we can't just -- they have a right to listen that the First Amendment and the Fourteenth Amendment (Inaudible) them.

It's another thing to ask is to make a special address to people.

Mr. Louis Lusky: I hadn't intended to ask that.

All I intended to do was to acquaint this Court with the fact that this case might have a -- a special importance to the people in my home state, because it comes up at this particular time.

I didn't mean to be presumptuous anyway.

Now, if -- I -- I don't want to presume any further on the Court's time, but there are just a few detailed points that I would like to take off, if I may.

First, the -- the -- I -- I will say that this case is -- this place is referred to as a saloon.

This is the way the police referred to it and I noticed that -- that is been referred to that way in argument.

It is not a saloon.

It is a tavern that is licensed to sell beer only.

This is just the -- a term which has been injected into the case.

The -- on the question whether the -- whether the petitioner could have been properly waiting for a bus in a tavern which was half a block -- block away from a bus stop and was on a different street that ran the other way.

You have to know the fact that the -- these suburban buses run on schedules and the next bus wasn't due for half an hour.

And as far as whether the -- whether he was dancing or not, Mr. Justice Whittaker pointed out that Marks (ph) the café proprietor, did not consider what he was doing as dancing.

He said he didn't think it was dancing and of course, from a police regulation point of view, the significance of dancing is that it is men and women dancing together, two people dancing.

That's the thing that creates problems.

Now, on the question of what was the [Laughter] -- and some non-legal problems.

I -- I think that's -- that's about all that I -- that I really think I should take your time for, Your Honors, and I do thank you for your indulgence.

Would you like to have the list of arrests or not?

Chief Justice Earl Warren: You might as well file them.