NAACP v. BUTTON

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Argument of Robert L. Carter

Chief Justice Earl Warren: Number 41 -- or Number 44, National Association for the Advancement of Colored People, Petitioner, versus Fredrick T. Gray, Attorney General of Virginia.

Mr. Carter.

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

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

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

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

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

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

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

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

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

Justice William J. Brennan: Just out of curiosity, Mr. Carter, what's happened to those three? Are they back before the Virginia Court?

Mr. Robert L. Carter: Yes, sir.

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

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

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

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

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

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

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

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

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

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

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

Justice William J. Brennan: Mr. Carter, what's capping?

What's capping?

I never heard that expression.

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

I don't -- other than the running, I don't understand what the rest of it means.

Justice William J. Brennan: In my state, we call the man who is chasing, is that what it is?

Mr. Robert L. Carter: Yes, I suppose so.

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

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

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

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

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

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

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

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

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

Now --

Justice John M. Harlan: Do you have a paid staff, a full-time paid staff?

Mr. Robert L. Carter: Full-time paid staff which is --

Justice John M. Harlan: Of lawyers?

Mr. Robert L. Carter: Of lawyers, yes, sir, which this paid staff of lawyers is in New York.

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

It --

Unknown Speaker: (Inaudible)

Mr. Robert L. Carter: Well, this -- there is an independent organization which is not before the Court, which is called the NAACP Legal Defense and Educational Fund which is separate from the -- from petitioner.

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

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

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

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

Unknown Speaker: Who pays for that?

Mr. Robert L. Carter: That is paid by the state unit in this instance.

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

Now --

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

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

Mr. Robert L. Carter: I -- this is in the --

Justice Potter Stewart: I misunderstood it.

Mr. Robert L. Carter: I think that what the Court was doing -- was making a distinction between the Legal Defense Fund and petitioner organization.

This is not true.

Both organizations turn to finance the litigation and so forth.

The Fund operates differently.

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

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

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

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

Justice Potter Stewart: This litigation arose as a, what, a suit for declaratory judgment or an injunction?

Mr. Robert L. Carter: It was a suit that -- it originally arose as a suit for an injunction before statutory United States District Court --

Justice Potter Stewart: And then it was --

Mr. Robert L. Carter: Under the doctrine of federal abstention, we were sent over to the state court.

Justice Potter Stewart: And then, this also then became a suit for declaratory judgment in Virginia.

Mr. Robert L. Carter: Declaratory judgment and injunction.

Justice Potter Stewart: And injunction in Virginia.

Mr. Robert L. Carter: Yes.

Justice Potter Stewart: And the plaintiff -- the only plaintiff was the NAACP.

The Fund was not a plaintiff.

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

Justice Potter Stewart: Well, just let me pursue this a moment, excuse me, and a declaratory -- both the Fund and the NAACP lost, in fact.

Mr. Robert L. Carter: Yes.

Justice Potter Stewart: And the Fund does not appeal.

Mr. Robert L. Carter: That's right.

Justice Potter Stewart: Or not brought certiorari here.

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

Mr. Robert L. Carter: No, I think there was a difference in procedure.

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

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

Justice Potter Stewart: The state court did say that the statute applies to the Fund.

Mr. Robert L. Carter: That's right.

Justice Potter Stewart: And that as so applied, the statute is constitutional and the Fund did not ask for any review here of that -- of this point.

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

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

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

Mr. Robert L. Carter: Yes, sir.

But that -- that's the --

Justice William J. Brennan: And -- whereas you're here or the NAACP is here asking us to strike the statute down contrary to the conclusion reached by the Virginia Courts that it was constitutional, is that it?

Mr. Robert L. Carter: We are both -- as a matter of fact, we are both doing the same thing, but in -- now, it's in view of the route which has been taken.

We --

Justice William J. Brennan: If I -- do I correctly understand you to say you didn't feel that the Fund could come here because all it sought was a declaration of its application to the Fund, is that it?

Mr. Robert L. Carter: That's right.

Justice William J. Brennan: That's right, and I --

Justice Potter Stewart: And upon unconstitutionality, did it not?

Justice Felix Frankfurter: I don't understand that.

Why -- I don't understand that.

I mean, I don't understand --

Mr. Robert L. Carter: Well --

Justice Felix Frankfurter: -- is it -- isn't it suppose -- isn't the decision of the Virginia Courts on the request for declaration appealable to this Court, reviewable here?

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

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

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

Chief Justice Earl Warren: We'll recess now.

Continue your argument.

Justice Felix Frankfurter: Mr. Carter, what I want to know is this.

The Fund is a New York corporation.

Was it doing business in Virginia?

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

Mr. Robert L. Carter: Yes, sir.

Justice Felix Frankfurter: It was a litigant before the Virginia Supreme Court when the question -- when these issues were raised before it by proper litigations.

It asked for a declaratory judgment, not an injunction.

Mr. Robert L. Carter: Yes, sir.

Justice Felix Frankfurter: And the Court gave it a declaration.

Now, and you didn't -- or it didn't come here.

Are you also in conflict with the Fund?

Mr. Robert L. Carter: No, I'm not.

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

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

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

Now, would you enlighten us on that?

Mr. Robert L. Carter: Well, the only thing I can say in all fairness to --

Justice Felix Frankfurter: There's no (Inaudible) -- no suggestion that anybody --

Mr. Robert L. Carter: I understand.

Justice Felix Frankfurter: -- a counsel have their responsibility.

Mr. Robert L. Carter: I understand the -- but I'm trying to answer the question.

I really cannot and should not speak for the Fund.

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

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

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

Justice Felix Frankfurter: This matter has been before the District Court?

Mr. Robert L. Carter: It is not pending, awaiting the determination of this case.

Justice Felix Frankfurter: Yes, but you said the District Court has pronounced some views.

Mr. Robert L. Carter: Well, it announced it in open Court, not in terms of an opinion and it is now holding the matter awaiting the determination of this --

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

Justice John M. Harlan: Could it be that what you're worried about was that you didn't know what the right route of review was.

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

Mr. Robert L. Carter: Well --

Justice John M. Harlan: -- picked the Supreme Court so you'd cover both wickets.

Mr. Robert L. Carter: Well, what happened was that we -- there was, as I indicated, a disagreement or rather difference as to what the right route or correct view was and we took this route.

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

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

That's the situation, isn't it?

Mr. Robert L. Carter: That's correct.

Unknown Speaker: (Inaudible)

Mr. Robert L. Carter: That's correct.

Justice Felix Frankfurter: But it's not necessarily -- not necessarily.

The facts might be different.

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

Mr. Robert L. Carter: Well, I might --

Justice Felix Frankfurter: I'm not saying it is -- they are.

I don't know enough about it.

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

Justice Felix Frankfurter: It's a little strange for us to go out of the way and pass down the Fund when the Fund chose not to come here.

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

Justice Felix Frankfurter: Well, I'm -- I won't pursue --

Justice William J. Brennan: I want to ask you that question.

Is there any (Inaudible)?

Mr. Robert L. Carter: No, sir.

Justice William J. Brennan: (Inaudible)

Mr. Robert L. Carter: No, sir.

Justice William J. Brennan: (Inaudible)

Mr. Robert L. Carter: No, sir.

Justice William J. Brennan: The two records are exactly the same (Inaudible)?

Mr. Robert L. Carter: That's right.

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

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

Justice John M. Harlan: But you did not --

Mr. Robert L. Carter: And this -- and that record is also --

Justice John M. Harlan: That's also (Voice Overlap) --

Mr. Robert L. Carter: That is --

Justice John M. Harlan: It's not omission of any portion of this record that was related exclusively with the Fund, that's all in hand.

Mr. Robert L. Carter: That's right, sir, insofar as it relates to this particular statute.

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

Mr. Robert L. Carter: That's right.

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

It has no chapters or branches that are operating.

Justice Felix Frankfurter: Well, that may make a difference.

Mr. Robert L. Carter: And the --

Justice Felix Frankfurter: That might might a difference.

Mr. Robert L. Carter: And the -- and this organization does.

It had a salaried employee who was no longer employed.

Justice William J. Brennan: The Fund had?

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

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

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

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

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

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

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

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

Justice Felix Frankfurter: Ask NAACP in Virginia or the home office?

Mr. Robert L. Carter: NAACP in Virginia and in the home office as well.

Now --

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

Mr. Robert L. Carter: No, sir.

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

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

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

The initiation would be from the outside.

Mr. Robert L. Carter: That's right.

Now I'm--

Justice Felix Frankfurter: Does the record -- does the record uniform on that?

Mr. Robert L. Carter: The record is uniform on that and it's clear on that and I think that it is conceded by the defendants that this is -- by the respondents that this is so.

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

Justice Felix Frankfurter: Now, let me be specific to be concrete on that.

Mr. Robert L. Carter: Yes sir.

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

Now, does that describe the situation?

Mr. Robert L. Carter: That describes the -- that describes our situation.

Justice Charles E. Whittaker: But Mr. Carter --

Mr. Robert L. Carter: Yes, sir.

Justice Charles E. Whittaker: Are we or are we not on the (Inaudible)?

Mr. Robert L. Carter: That's right.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert L. Carter: Now, I'm sorry.

I think I spoke too fast.

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

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

Justice Charles E. Whittaker: (Inaudible) Are we free independently to make a judgment upon those or are we bound by the facts as found by the Supreme Court (Inaudible)

Mr. Robert L. Carter: I think so, except for the -- our hesitancy, Mr. Justice Whittaker, is the fact that you have two courts.

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

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

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

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

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

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

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

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

This was not before the District Court.

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

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

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

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

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

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

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

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

Mr. Robert L. Carter: Well on phrase -- on page 3 --

Justice Felix Frankfurter: Page what?

Mr. Robert L. Carter: Page 3 of petitioner's brief, I'm sorry, in paragraph 6, the italicized language charges the attorneys who are associated with us of malpractice.

Justice Felix Frankfurter: Because of?

Mr. Robert L. Carter: I beg your pardon?

Justice Felix Frankfurter: Because of?

Mr. Robert L. Carter: Because of the fact --

Justice Felix Frankfurter: What are the words of the fact?

Mr. Robert L. Carter: That they accept employment and compensation from an organization which is guilty of violating the provisions of Article 7.

Justice Felix Frankfurter: Now where is Article 7?

Mr. Robert L. Carter: Article 7 is down below on page 4.

In Article 7, the italicized words again --

Justice Felix Frankfurter: Where?

Mr. Robert L. Carter: Article 7 is on page 4.

Justice Felix Frankfurter: Yes.

Mr. Robert L. Carter: Do you mean Article 7?

Justice Felix Frankfurter: It's called Article 7, it's 7 if you'll see the --

Mr. Robert L. Carter: One is for instance --

Justice Felix Frankfurter: Oh, I see.

Mr. Robert L. Carter: Representation in 54-78 Your Honor (Voice Overlap).

Chief Justice Earl Warren: Yes, (Voice Overlap).

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

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

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

Justice Felix Frankfurter: Is my legal aid society exempted from this?

Mr. Robert L. Carter: Yes, sir.

Justice Felix Frankfurter: Where is it?

Where is that?

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

Justice Felix Frankfurter: By a specific -- I mean a specific organization?

Mr. Robert L. Carter: The -- a legal aid society which --

Justice Felix Frankfurter: A legal aid society.

Mr. Robert L. Carter: -- which is approved by the Virginia State Bar.

Justice Felix Frankfurter: I see.

Mr. Robert L. Carter: And this was --

Justice Felix Frankfurter: By Virginia State Bar?

Mr. Robert L. Carter: Yes, and this was specifically exempted from -- there were several statutes.

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

Justice Felix Frankfurter: But you -- you neither apply nor would you come under it?

Mr. Robert L. Carter: No, sir.

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

Justice Felix Frankfurter: Well, you didn't -- you weren't approved, so you don't come under the statute.

Mr. Robert L. Carter: No, that's right.

Justice Felix Frankfurter: And you never applied and you don't want to be deemed such.

Is that right?

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

Justice Felix Frankfurter: (Inaudible) -- and you're not?

Mr. Robert L. Carter: No, sir.

Justice Felix Frankfurter: At all events, you don't come within the exemption because you didn't come within the procedure for exemption.

Mr. Robert L. Carter: That's right.

Justice Felix Frankfurter: Alright.

Justice John M. Harlan: The Virginia Court struck that statute down.

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

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

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

Justice John M. Harlan: (Inaudible)

Mr. Robert L. Carter: Yes, sir.

Justice John M. Harlan: (Inaudible)

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

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

Now --

Justice Hugo L. Black: Do you mind telling me -- I understand the use of the word arbitrary in the shorthand method of --

Mr. Robert L. Carter: Yes sir.

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

Mr. Robert L. Carter: I will.

I'll attempt to do that.

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

We contend that this violates --

Justice Hugo L. Black: So it engages in precisely what ground?

Mr. Robert L. Carter: The lawyers who handle cases which petitioner -- for which the petitioner pays, for which he pay --

Justice Hugo L. Black: The petitioner pays.

Mr. Robert L. Carter: -- pays the legal expenses and so forth that these lawyers are guilty of malpractice --

Justice Hugo L. Black: In other words --

Mr. Robert L. Carter: - and are subject to disbarment.

Justice Hugo L. Black: If it becomes a crime or whatever it is, a malpractice for a lawyer to handle a case that -- where you pay the fees.

Mr. Robert L. Carter: That's correct.

Justice Hugo L. Black: Now, why do you say they can't do that under the Constitution, under what provision and under what formalization?

Mr. Robert L. Carter: Well, we -- and let me add one other point.

Justice Hugo L. Black: May I (Voice Overlap) -- and pay the fees for litigants who could afford to pay, is that important?

Because I --

Mr. Robert L. Carter: I think that this has been -- that this has been shown, if the Court please, but that the statute does not necessarily reach that point.

Justice Felix Frankfurter: So then, should you --

Mr. Robert L. Carter: I mean the opinion goes beyond that.

Justice Felix Frankfurter: But I understood you to say that you differ from a legal aid society in that you do not help, or whatever, you do not --

Mr. Robert L. Carter: That's right.

Justice Felix Frankfurter: -- do business with indigent litigants.

Mr. Robert L. Carter: That's right.

Justice Felix Frankfurter: Is that right?

Mr. Robert L. Carter: That's right.

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

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

Justice Felix Frankfurter: But I didn't mean to suggest it makes a difference.

I just want to get the (Voice Overlap) --

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

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

Mr. Robert L. Carter: I -- yes, I take that position.

Justice Hugo L. Black: And what is -- what and why do you say that?

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

Mr. Robert L. Carter: Well, let me try to answer it this way.

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

Justice Hugo L. Black: Where -- what provision of the constitution are --

Mr. Robert L. Carter: Due process --

Justice Hugo L. Black: -- on provisions?

Mr. Robert L. Carter: Due process and equal protection.

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

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

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

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

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

Justice Hugo L. Black: You're saying they can't follow this classification with reference to that Article?

Mr. Robert L. Carter: With reference to that.

Justice Hugo L. Black: Are you depending on any other provisions with reference to --

Mr. Robert L. Carter: Well --

Justice Hugo L. Black: -- doing something to people on account of their race or anything of that kind?

Any other provision of the constitution you depend on --

Mr. Robert L. Carter: Well, we --

Justice Hugo L. Black: -- or their right to advocate things?

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

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

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

Justice Felix Frankfurter: Let me ask you this.

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

Would they come within the statute?

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

Mr. Robert L. Carter: I think not.

Justice Felix Frankfurter: No?

Mr. Robert L. Carter: I think not.

Justice Felix Frankfurter: Suppose -- are you prevented from doing just that and nothing else?

Mr. Robert L. Carter: We are not prevented from -- at the present time, we are not prevented from doing that.

Justice Felix Frankfurter: I'm not arguing on any -- I'm not arguing on --

Mr. Robert L. Carter: I --

Justice Felix Frankfurter: -- legal interest.

I just want to know what this is.

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

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

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

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

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

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

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

Mr. Robert L. Carter: Well, I would think so, Your Honor.

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

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

Mr. Robert L. Carter: Yes sir.

We --

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

Mr. Robert L. Carter: Well, we would be -- I think I have confused you.

I haven't made myself clear about the lawyer.

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

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

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

Justice Hugo L. Black: Well, with the case I mentioned -- I'm trying to get down to a concrete thing as to what you're claiming.

You talked about civil rights.

Mr. Robert L. Carter: Yes, sir.

Justice Hugo L. Black: Do you mean by that, as one illustration, that your forbidden to pay a lawyer because of your interest in enforcing the right of people not to be denied their -- or not to have their right to vote denied or abridged --

Mr. Robert L. Carter: Yes, sir.

Justice Hugo L. Black: -- on account of their race or color.

Mr. Robert L. Carter: We would be forbidden from doing that.

Justice Hugo L. Black: And is the -- as the Supreme Court of Virginia held that it's illegal in Virginia for an institution or a person to help pay lawyers in order to protect that constitutional safe -- constitutional right?

Mr. Robert L. Carter: Insofar as it relates to our activities, they have so held.

Justice Hugo L. Black: Well, is that part of your activity?

Mr. Robert L. Carter: Yes, sir.

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

Justice Felix Frankfurter: Now --

Justice Potter Stewart: Not just the mere paying wouldn't do it, would it?

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

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

Mr. Robert L. Carter: No, sir.

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

Justice Potter Stewart: Yes.

Mr. Robert L. Carter: -- etcetera.

That has been struck down.

Justice Potter Stewart: That was struck down.

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

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

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

Mr. Robert L. Carter: Yes, sir.

I --

Unknown Speaker: (Inaudible)

Mr. Robert L. Carter: I think that's true.

Unknown Speaker: (Inaudible)

Mr. Robert L. Carter: Well, they said that because -- they said that we had no pecuniary right or liability in the case and this is in the statute.

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

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

This is not the situation in our particular case.

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

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

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

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

Mr. Robert L. Carter: I think I am asserting that in the context in which -- in a particular context of the lit -- of the activities in which we are engaged.

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

The -- we're engaged in an activity involving an issue of racial discrimination and segregation.

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

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

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

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

Mr. Robert L. Carter: I think that -- I agree.

I think that this would be our position.

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

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

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

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

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

Mr. Robert L. Carter: Well, let me put it this way.

Justice Felix Frankfurter: I'm not saying it is. I just want to know what your position is.

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

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

Justice Felix Frankfurter: I'm not unfamiliar with your situation.

Mr. Robert L. Carter: Yes sir.

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

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

I just want to know what your position is.

Mr. Robert L. Carter: Well, insofar --

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

Mr. Robert L. Carter: Well, I don't -- we have never -- I've never breached the situation, if the Court please.

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

Justice Felix Frankfurter: They haven't asked you any question.

Mr. Robert L. Carter: We do not inquire --

Justice Felix Frankfurter: I know, but may the State -- may the State require you to ask that question?

Mr. Robert L. Carter: I don't --

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

That's his constitutional right.

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

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

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

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

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

Justice Felix Frankfurter: You're not saying -- you're not saying or are you saying that the State of Virginia, the Commonwealth of Virginia is singling out the NAACP in this legislation.

Are you saying that?

Mr. Robert L. Carter: Oh, yes, I think I haven't got -- we -- I haven't been (Voice Overlap) --

Justice Felix Frankfurter: Well, that's a real -- I mean, that's a real equal protection (Inaudible).

Mr. Robert L. Carter: I just --

Justice Felix Frankfurter: If you are saying that, that's a totally different argument.

Mr. Robert L. Carter: I think that the -- and I'll have to -- my time is been up some time.

Chief Justice Earl Warren: Well, Mr. Carter, your time is up but I'm going -- because we've taken so much time questioning, you may have five minutes of rebuttal to summarize your argument if you -- succinctly if you will.

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

Mr. Robert L. Carter: Thank you, thank you.

Chief Justice Earl Warren: Mr. Wickham, and of course you may have five minutes extra, too, if you wish it.

Argument of Henry T. Wickham

Mr. Henry T. Wickham: Thank you.

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

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

This question -- this case involves two questions.

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

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

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

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

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

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

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

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

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

It doesn't really make much difference.

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

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

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

Justice William O. Douglas: Are you familiar with the Railroad Brotherhood cases in California and Illinois?

Mr. Henry T. Wickham: Yes, sir.

Justice William O. Douglas: Would 54-78 preclude those practices of the Brotherhood?

Mr. Henry T. Wickham: Well, as I read the cases, that I in fact have referred to in the respondent's brief, I do not think so.

Justice William O. Douglas: What would exempt them from 54-78?

Mr. Henry T. Wickham: From 54-78?

Justice William O. Douglas: Yes.

Mr. Henry T. Wickham: Well, the -- it would seem to me that, number one, as I understand it, they did not pay attorneys for the client.

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

Justice William O. Douglas: Would 54-78 apply to an association of taxpayers to contest assessments made by various boards or commissions in Virginia?

Mr. Henry T. Wickham: The provisions of Section 54-78 apply to -- it seems to me, to everyone that has engaged in certain activities.

Justice William O. Douglas: It adds “in which it has no pecuniary right or liability.”

I was wondering what category of cases that includes?

Mr. Henry T. Wickham: Well, I think what they're driving at, for example, it's a Virginia case involving the Richmond Credit Association.

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

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

Justice Hugo L. Black: Did what?

Mr. Henry T. Wickham: Sent the client or the creditor to the attorney who was paid by the Credit Association.

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

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

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

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

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

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

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

Justice Hugo L. Black: Laid down by the Virginia State Bar?

Mr. Henry T. Wickham: Yes.

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

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

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

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

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

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

Mr. Henry T. Wickham: I say that I have found no case that has drawn that distinction to date, Your Honor.

Justice Hugo L. Black: I understood that.

Mr. Henry T. Wickham: Yes, sir.

Justice Hugo L. Black: I was asking you.

Mr. Henry T. Wickham: I don't see why there should be any difference in your procedure or your professional conduct.

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

And --

Justice Hugo L. Black: Yes, the wrong --

Mr. Henry T. Wickham: Regardless of the type of litigation --

Justice Hugo L. Black: -- the wrong way is the way which the law forbids if the law is constitutional.

Mr. Henry T. Wickham: That is correct, sir.

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

Mr. Henry T. Wickham: It would seem to me that the procedures and the proper conduct -- professional conduct of attorneys should be the same regardless of the type of litigation.

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

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

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

Mr. Henry T. Wickham: Well, I --

Justice Hugo L. Black: Maybe it's not relevant.

Mr. Henry T. Wickham: No --

Justice Hugo L. Black: But not only can you just dismiss it --

Mr. Henry T. Wickham: No, sir.

I think --

Justice Hugo L. Black: -- from the idea that the man did -- the man who would believe in that, somehow, there's something wrong with him professionally.

Mr. Henry T. Wickham: Well, I don't -- I didn't mean to indicate that.

Justice Hugo L. Black: I didn't think --

Mr. Henry T. Wickham: -- and I hope I didn't say that, sir.

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

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

These statutes do nothing more.

Justice Felix Frankfurter: Every criminal case involve a so-called civil rights embedded in the Constitution -- every criminal case.

Mr. Henry T. Wickham: Well, there are few cases today that don't.

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

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

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

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

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

They get a per diem of $60 a day.

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

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

His associations were on the legal committee.

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

That's just about $60 a day.

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

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

Justice Felix Frankfurter: What about my hypothetical case, Mr. Wickham?

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

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

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

Would that come within the statute?

Mr. Henry T. Wickham: No, sir.

I think that would be perfectly alright.

Justice Hugo L. Black: Why?

Mr. Henry T. Wickham: Number one, they're helping indigent people.

Here, we have no record of that.

Justice Hugo L. Black: Do you think that's the key to that?

Mr. Henry T. Wickham: That is one element.

I think we have -- I haven't related all the facts yet.

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

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

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

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

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

Some of these people never knew who represent them.

Unknown Speaker: (Inaudible)

Mr. Henry T. Wickham: Authorization to represent -- for the attorneys to represent their client.

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

Justice Hugo L. Black: When was that?

Mr. Henry T. Wickham: Sir?

Justice Hugo L. Black: When was that?

Mr. Henry T. Wickham: When was that drawn up?

Justice Hugo L. Black: When was that -- when did that happen?

Mr. Henry T. Wickham: Well, it happens -- if the -- it happened in Charlottesville.

It have --

Justice Hugo L. Black: When?

Mr. Henry T. Wickham: I think it was back in 1956 or 1957, I'm not sure.

Justice Hugo L. Black: When was this law passed?

Mr. Henry T. Wickham: This law was passed in 1956.

I frankly don't know.

It happened before that.

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

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

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

Would he violate this law?

Mr. Henry T. Wickham: These people, down and off they go -- they're going to employ the attorney for the --

Justice Hugo L. Black: Yes, they meet and say, “We are much interested.

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

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

Mr. Henry T. Wickham: I think that they'll be violating -- yes sir, because, they would then be controlling the litigation and --

Justice Hugo L. Black: That's what I --

Mr. Henry T. Wickham: -- you'd lose your relationship of --

Justice Hugo L. Black: I asked you that because I thought that's what your position is.

Mr. Henry T. Wickham: Yes, sir.

Justice Hugo L. Black: Yes.

Justice Felix Frankfurter: Would it be necessary they control litigation?

Mr. Henry T. Wickham: Well, not -- it seems to me that you almost have to --

Justice Felix Frankfurter: MI mean that -- that isn't a matter of law.

That's a question of what the circumstance is --

Mr. Henry T. Wickham: It's a question of --

Justice Felix Frankfurter: -- whether they would or wouldn't.

Mr. Henry T. Wickham: It's a question of fact.

Justice Felix Frankfurter: Yes.

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

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

Justice Felix Frankfurter: That the Illinois -- that's precisely the ground of distinction that the Illinois Court put.

Mr. Henry T. Wickham: Yes, sir, that's correct.

Justice Felix Frankfurter: That it wasn't true there, was it?

Mr. Henry T. Wickham: Sir?

I --

Justice Felix Frankfurter: I thought that's the distinction that the Illinois case took.

Mr. Henry T. Wickham: Well, that was -- as I understand the Illinois case is -- that was one thing --

Justice Felix Frankfurter: That they were not controlling it.

Mr. Henry T. Wickham: That they said that the Brotherhood could not do it.

It would be to pay the --

Justice Felix Frankfurter: That's suppose --

Mr. Henry T. Wickham: Pay the attorney.

That's right.

Justice Felix Frankfurter: That's what I'm saying.

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

The fellow who gives advice would control the litigation.

Mr. Henry T. Wickham: I read that the Court's opinion would indicate that it was a conclusive presumption because they said that they wanted all ties --

Justice Felix Frankfurter: But didn't he--

Mr. Henry T. Wickham: -- severed between the attorney and the Brotherhood.

Justice Felix Frankfurter: Well, in that case, did they say that was illegal in Illinois?

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

Justice Felix Frankfurter: Yes, but one of the rules was that they should not control the litigation.

Mr. Henry T. Wickham: That's right.

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

Justice Tom C. Clark: And they couldn't --

Justice Felix Frankfurter: They couldn't solicit.

Justice Tom C. Clark: They couldn't circulate power of attorney to (Inaudible)

Mr. Henry T. Wickham: Yes, sir.

Justice Tom C. Clark: (Inaudible)

Mr. Henry T. Wickham: That's correct.

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

Justice Tom C. Clark: In one point I didn't understand is the -- I'd like to get it cleared up.

In Illinois, they said they might forget the fact.

Could that be possible under this statute?

Mr. Henry T. Wickham: Yes, sir.

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

Justice William J. Brennan: Well suppose, Mr. Wickham, they continued to suggest the same legal committee that did not pay them.

Mr. Henry T. Wickham: I think you get into a close case, sir.

Justice William J. Brennan: Even if they did not pay them, even if the petitioner did not pay?

Mr. Henry T. Wickham: No, sir.

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

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

Justice William J. Brennan: Well, let me see if I get that.

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

Mr. Henry T. Wickham: That's correct, sir.

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

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

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

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

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

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

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

Justice Potter Stewart: How does the ACLU operate?

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

Mr. Henry T. Wickham: No, sir.

I don't know.

Justice Potter Stewart: You just talked about a different method of procedure from what other people have and I wondered how similar their --

Mr. Henry T. Wickham: I just don't know, sir.

Justice Potter Stewart: -- operations were to these.

Mr. Henry T. Wickham: I wouldn't venture a guess.

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

Mr. Henry T. Wickham: They have -- as I understand the legal aid societies are conducted by the local bar associations--

Justice Felix Frankfurter: The local bar.

Mr. Henry T. Wickham: In most all of the instances then I would -- in conclusion, Your Honors, I respectfully request and submit that the decision of the Court of Appeals of Virginia should be affirmed.

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

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

What do you say to that?

Mr. Henry T. Wickham: Well, I say, Your Honor, I see nothing in the record that would indicate that.

He talks about massive resistance and government standards program.

It was the government at that time.

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

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

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

And --

Justice Felix Frankfurter: What about its discrimination in its enforcement?

Mr. Henry T. Wickham: Well, that's another problem.

Justice Felix Frankfurter: But if there is discrimination in enforcement then there's something wrong.

Mr. Henry T. Wickham: Well, it would -- it was -- it would fall or it would be invalid under that set of facts.

Justice Felix Frankfurter: What do you say as to that?

Mr. Henry T. Wickham: Sir?

Justice Felix Frankfurter: What do you say on that count or on that basis?

Mr. Henry T. Wickham: Well, of course, the statute never been enforced as of today.

There's been -- never been an injunction as a matter of fact.

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

Justice Felix Frankfurter: And this is --

Mr. Henry T. Wickham: So, they've never been charged with anything.

They're the ones that brought this litigation along --

Justice Felix Frankfurter: They wanted to --

Mr. Henry T. Wickham: -- for determination and as matter of fact, our Court has not pointed to any particular section or clause or sentence of this statute that the petitioner violates.

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

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

Justice Potter Stewart: Does this sub --

Justice Felix Frankfurter: There's no injunction against them?

Mr. Henry T. Wickham: No, sir.

I mean, against us?

You mean against this Fund?

Justice Felix Frankfurter: No, against petitioner.

Mr. Henry T. Wickham: No, sir.

They --

Justice Felix Frankfurter: I thought I heard him say that --

Mr. Henry T. Wickham: He said somebody asked for an injunction --

Justice Felix Frankfurter: Yes.

Mr. Henry T. Wickham: I believe, as distinction that the Fund didn't.

Justice Felix Frankfurter: Yes.

Mr. Henry T. Wickham: I didn't know that was the distinction in that case, but it's immaterial.

It's just declaratory judgment that was brought -- action was brought.

I've forgotten now whether an injunction was -- I don't think injunction was ever argued.

I mean, it was -- it's been agreed all along among counsel.

Justice Felix Frankfurter: You're saying the State hasn't moved against it.

Mr. Henry T. Wickham: That's correct.

Justice Felix Frankfurter: But they brought a proceeding in the District Court.

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

That's where we are now.

Mr. Henry T. Wickham: Well --

Justice Felix Frankfurter: But you never --

Mr. Henry T. Wickham: No, sir.

This action -- this 33 never came up.

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

Justice Felix Frankfurter: Yes.

Mr. Henry T. Wickham: So this has never been here before on --

Justice Felix Frankfurter: In connection with their series of litigation.

Mr. Henry T. Wickham: That's right, yes.

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

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

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

Mr. Henry T. Wickham: That's correct but my position is, of course, that you can read the statute and it's very clearly applies to everyone.

Justice Potter Stewart: Has this statute ever been enforced against anybody?

Mr. Henry T. Wickham: No, sir.

Justice Potter Stewart: How about in its form before the 1956 Amendments?

Was it ever been enforced against anybody?

Mr. Henry T. Wickham: Yes, I'm sure it has been.

Justice Potter Stewart: I don't believe you cite any cases from -- between you and your (Voice Overlap) --

Mr. Henry T. Wickham: Well, yes, sir.

It's the Third District Committee against -- Camel against the Third District Committee.

It was enforced against that district creditor.

Justice Potter Stewart: Was that entered?

Mr. Henry T. Wickham: Yes, sir.

I think no, it's a -- the one I know now.

I'm not sure about the Credit Association.

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

Justice Potter Stewart: And those were under the old statute?

Mr. Henry T. Wickham: That was under the old statute, yes, sir.

That case was under the Court of 1942.

It had a different section number.

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

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

Would that be covered by your law?

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

Mr. Henry T. Wickham: That and nothing more, I think, would be personal profit.

It's -- the next step might violate the law.

Justice Hugo L. Black: What would have to be added to that, under your interpretation of the law?

Mr. Henry T. Wickham: The furnishing of attorney and the paying of an attorney.

Justice Hugo L. Black: Well, they say -- he said here that they let it know that they will furnish money for the litigation as the proper need arises.

Mr. Henry T. Wickham: Well, if they furnished -- no.

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

Justice Hugo L. Black: Do you mean that --

Mr. Henry T. Wickham: But --

Justice Hugo L. Black: That they can do all of this just so they don't tell him what lawyer to get?

Mr. Henry T. Wickham: That's the same (Voice Overlap) --

Justice Hugo L. Black: That's your understanding of the law?

Mr. Henry T. Wickham: Or they can furnish him the lawyer if the lawyer's not paid.

Justice Hugo L. Black: Does the law --

Mr. Henry T. Wickham: It's a charity case, I mean.

Justice Hugo L. Black: Well, of course not admitted, (Inaudible) where a lawyer serves without pay.

Mr. Henry T. Wickham: That's correct.

Justice Hugo L. Black: Too frequently.

Mr. Henry T. Wickham: That's right.

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

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

Mr. Henry T. Wickham: That's right, though I'm not sure that (Voice Overlap) --

Justice Hugo L. Black: (Inaudible)

Mr. Henry T. Wickham: A particular legal aid society might not be approved by the proper authorities.

I mean, that's -- but I might point out --

Justice Hugo L. Black: What about the Civil Liberties Union if it sends lawyers?

Mr. Henry T. Wickham: I don't know how they operate --

Justice Hugo L. Black: (Voice Overlap) -- it lets people know that it will supply a lawyer in cases that are bad enough, pays them --

Mr. Henry T. Wickham: I don't think it pays the lawyer -- I don't think it --

Justice Hugo L. Black: I don't have the (Inaudible)

Mr. Henry T. Wickham: I said suppose it does.

There's some -- these lawyers that work for them, I imagine, get paid.

Justice Felix Frankfurter: They're always getting paid.

Justice Potter Stewart: Doesn't it often get into cases after they've started the (Voice Overlap) --

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

I never had an experience --

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

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

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

Counsel is supposed to argue.

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

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

Mr. Henry T. Wickham: I'd like to add one thing, if I May, Mr. Chief Justice that --

Chief Justice Earl Warren: You may (Voice Overlap) --

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

Justice Hugo L. Black: What I was wondering was what in addition to this constitutes the core of the violation if there is something that has to be added to what he said --

Mr. Henry T. Wickham: The --

Justice Hugo L. Black: As I read to you.

Mr. Henry T. Wickham: Yes, sir.

You want me to answer that question?

Justice Hugo L. Black: I'm just wondering, yes, if it's not too much trouble, if it is, don't.

Mr. Henry T. Wickham: Well --

Justice Hugo L. Black: It might not be possible while your --

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

Justice Hugo L. Black: It's violated if they furnished it directly to the attorneys, but not if --

Mr. Henry T. Wickham: If they --

Justice Hugo L. Black: Not if they let the client have it to get the attorney.

Mr. Henry T. Wickham: That's correct, sir.

Justice Hugo L. Black: Even though they ask him to get a certain one?

Mr. Henry T. Wickham: Even though the client asked for a certain attorney?

Justice Hugo L. Black: Even though the client -- the organization designated an attorney they want him to hire.

Mr. Henry T. Wickham: I think that would be a violation of Chapter 33.

Justice Hugo L. Black: You think that violate --

Mr. Henry T. Wickham: Yes, sir.

Chief Justice Earl Warren: Mr. Carter, if you'd like to summarize your argument, if you wish, you may.

Rebuttal of Robert L. Carter

Mr. Robert L. Carter: If I may.

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

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

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

Justice Hugo L. Black: 40?

Mr. Robert L. Carter: 40 (a) in the -- at the end of the petition.

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

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

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

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

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

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

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

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

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

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

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

Is that a fair statement of the case?

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

I think --

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

Mr. Robert L. Carter: Except in the area, if the Court please, of public interest.

Justice Felix Frankfurter: Alright.

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

Mr. Robert L. Carter: Alright.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript: 

Argument of Robert L. Carter

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

Mr. Carter.

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

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

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

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

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

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

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

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

Justice John M. Harlan: Are those cases that you referred to that struck down by the City Court of a -- going up on appeal?

Mr. Robert L. Carter: Yes sir.

I would think so Your Honor --

Justice John M. Harlan: Well, I mean --

Mr. Robert L. Carter: -- state statute.

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

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

Justice John M. Harlan: No, I understand that.

Justice William J. Brennan: [Inaudible]

Mr. Robert L. Carter: The order has been entered.

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

Justice William J. Brennan: [Inaudible]

Mr. Robert L. Carter: Well --

Justice William J. Brennan: [Inaudible]

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

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

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

So I think the --

Justice Potter Stewart: So we have just one here.

Mr. Robert L. Carter: Yes sir, just one statute at the present time.

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

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

These are unincorporated Associations.

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

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

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

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

Now --

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

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

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

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

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

Mr. Robert L. Carter: Yes sir.

Justice Potter Stewart: I mean the issues that they were not racial issues on the surface.

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

Justice Arthur J. Goldberg: Mr. Carter [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Yes sir

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Now, insofar as the -- how a case gets to or litigation gets to the Association in Virginia, the record discloses that the matter will get to the Association in one of several way.

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

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

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

Justice Potter Stewart: Are these 15 or 16 lawyers are -- are they full time employees?

Mr. Robert L. Carter: No sir.

Justice Potter Stewart: No.

Mr. Robert L. Carter: They are volunteers.

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

Justice Potter Stewart: Are there any lawyers in Virginia who are full time employees?

Mr. Robert L. Carter: No sir.

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

I am one of them.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: How much?

Justice Tom C. Clark: [Inaudible]

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

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

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: That would include the expenses that the Virginia State Conference for example would pay.

Now --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: No, that's in a court cost for any record.

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: In Virginia?

No sir.

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir, yes.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: No sir.

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

Now --

Justice Tom C. Clark: You pay it directly.

Mr. Robert L. Carter: We pay it directly.

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

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

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

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

You're talking about the case I have referred to --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

But you --

Unknown Speaker: [Inaudible]

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

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

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

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

This is changing because this certainly has been true.

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

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

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

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

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

Justice Potter Stewart: Mr. Carter, before you go further, I wonder if I could take you back.

You began by describing factually the activities of the NAACP.

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

Mr. Robert L. Carter: I -- let me put it this way, sir.

I don't believe that he has misstated any particular facts, but the conclusions --

Justice Potter Stewart: Well, of course, you disagree --

Mr. Robert L. Carter: Yes sir.

Justice Potter Stewart: -- or you wouldn't be here but --

Mr. Robert L. Carter: Yes sir.

Justice Potter Stewart: But in his -- the facts are stated in those opinions and in that opinion, you do not quarrel with it?

Mr. Robert L. Carter: I'm -- except in terms -- I mean I do quarrel with the use of weighted words such as solicited and clamoring and things of that kind but the mere facts of the -- as stated by Judge Henning, I would have no -- no quarrel.

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

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

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

Mr. Robert L. Carter: The activities --

Justice Potter Stewart: In short, the activities of the NAACP and so on.

Mr. Robert L. Carter: Oh no sir.

I couldn't -- that -- this is put on court --

Justice Potter Stewart: What's the (Voice Overlap)?

Mr. Robert L. Carter: That's what I would regard.

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

Mr. Robert L. Carter: Well, in the first place -- in the first place, I don't believe that the Association, in fact, channeled anything to any group of lawyers.

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

Justice John M. Harlan: The Virginia Court is directing himself only to those cases while the Association goes to people and not what people [Inaudible]

Mr. Robert L. Carter: Well, I think, Your Honor that --

Justice John M. Harlan: -- people and ask them to become plaintiff and refer it to the lawyer and then page the lawyer.

Mr. Robert L. Carter: Well, the fact to that matter, I don't think that there's anything in the record that would sustain the fact that we go to people under these circumstances at all.

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

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

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

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

Now --

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

Mr. Robert L. Carter: Well, let me put it this way, Your Honor.

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

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

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

The other --

Justice Hugo L. Black: You deny that?

Mr. Robert L. Carter: No sir.

I -- the -- we've made no issue of that.

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

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

Justice Potter Stewart: Mr. Hill himself a lawyer?

Mr. Robert L. Carter: I beg your pardon?

Justice Potter Stewart: Is Mr. Hill a lawyer?

Mr. Robert L. Carter: Yes sir.

Justice Potter Stewart: And he was the one who address this meeting?

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

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

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

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

Authorizations at that time were signed.

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

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

Justice Arthur J. Goldberg: Mr. Carter.

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: Looking at the question of [Inaudible] particularly in reference to the action of the Supreme Court of Virginia [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: [Inaudible] is that right?

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: They could provide them [Inaudible]

Mr. Robert L. Carter: That's right.

Justice Arthur J. Goldberg: [Inaudible]

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

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

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

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

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

Justice Arthur J. Goldberg: [Inaudible]

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

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

Justice Byron R. White: [Inaudible]

Mr. Robert L. Carter: Well --

Justice Byron R. White: [Inaudible]

Mr. Robert L. Carter: That's true but as I understand the opinion, Mr. Jus --

Justice Byron R. White: [Inaudible]

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

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

Unknown Speaker: [Inaudible]

Justice Hugo L. Black: I don't quite understand that either.

Mr. Robert L. Carter: Alright sir, alright.

Justice Hugo L. Black: [Inaudible] it is your position and I thought so NAACP [Inaudible] particularly with regards to segregation.

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

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

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

Mr. Robert L. Carter: Well, this is the -- my only problem but if that's -- that's exactly what the case would reduce itself too, Your Honor.

Justice Hugo L. Black: Well, that is the fact.

Mr. Robert L. Carter: That's a fact.

Justice Hugo L. Black: Well, that is what you're defending?

Mr. Robert L. Carter: Yes sir.

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

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

No one has been kept out of it.

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Potter Stewart: They do refer litigation to the lawyers and they do pay them.

Mr. Robert L. Carter: Yes sir.

Justice Byron R. White: And they can't [Inaudible]

Mr. Robert L. Carter: That's right sir.

Yes sir.

Justice Byron R. White: [Inaudible]

Mr. Robert L. Carter: Yes sir.

The -- the -- yes sir.

Justice Hugo L. Black: [Inaudible]

Mr. Robert L. Carter: Alright.

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

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

Justice Arthur J. Goldberg: [Inaudible] close rule --

Mr. Robert L. Carter: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Yes sir, that's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Now --

Justice Hugo L. Black: Whether closed or not closed [Inaudible] –-

Mr. Robert L. Carter: That's right.

Justice Hugo L. Black: [Inaudible]

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

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

Justice William J. Brennan: [Inaudible]

Mr. Robert L. Carter: Well, I would think that it would be -- it would be --

Justice Byron R. White: [Inaudible]

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

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: We have had --

Unknown Speaker: [Inaudible]

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

This has been a subject of some concern.

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

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

And for this -- for this --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: I beg your pardon.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes, we could -- we could use the research but you don't know how that research can be -- how that research after you have used it or how that research would be used in actual litigation.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: That's what we --

Unknown Speaker: [Inaudible]

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Right, right sir.

Unknown Speaker: I'm not talking about the litigation in general [Inaudible]

Mr. Robert L. Carter: Right, right.

Now --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: I don't think, Your Honor but there's anything in the record which would sustain the fact.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: That's right.

Justice Byron R. White: There's no part of your operation [Inaudible]

Mr. Robert L. Carter: That's right.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Well, no sir, except for the fact that the -- on the basis that even -- my problem with this is that on the basis of the evidence before this Court, this -- this -- the Supreme Court of Appeals says that this evidence shows that you do conform -- and direct the --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: That's right sir.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: That's right sir.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Well, no sir.

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

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

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

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

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: That's right.

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

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

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

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

And that I -- I think that we do not.

Now --

Unknown Speaker: [Inaudible]

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: They -- the -- the law would bar the liability insurance companies from --

Unknown Speaker: The lawyers will be guilty with [Inaudible]

Mr. Robert L. Carter: No sir.

I think that the -- I don't believe so.

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

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

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

Justice Hugo L. Black: Is that one of the [Inaudible]

Mr. Robert L. Carter: Yes sir, we think -- we point it out in our –-

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Denial of equal protection, yes sir.

This is one of the grounds for our attack.

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

Justice William J. Brennan: Mr. Carter, may I ask [Inaudible]

Mr. Robert L. Carter: They -- there was a long list of exemptions in 36.

This –-

Justice William J. Brennan: [Inaudible]

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: That's right.

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

There's no --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: No sir.

Justice William J. Brennan: Page 33 -- 33 of the record.

Mr. Robert L. Carter: Well, the one before you.

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

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

We are going to --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: I couldn't -- I couldn't say but I think that in terms of the plain language of the statute that it would be -- that there would be no other thing that they could hold other than it did not apply to commercial corporations or associations.

Unknown Speaker: [Inaudible]

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: No, no sir.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: That's right sir.

That's right.

Justice Hugo L. Black: May I ask you [Inaudible]

Mr. Robert L. Carter: I didn't hear you sir.

Justice Hugo L. Black: [Inaudible]

Mr. Robert L. Carter: That's what we contend the effect of the statute.

Justice Hugo L. Black: Is there any opinion within the Virginia Court [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Hugo L. Black: Does it also provide that any lawyers taking the case of this [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Hugo L. Black: Is there are cases still pending against the lawyer [Inaudible]

Mr. Robert L. Carter: No sir.

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

Justice Hugo L. Black: The case is not terminated?

Mr. Robert L. Carter: It is now terminated.

Mr. Tucker was reprimanded.

Justice Hugo L. Black: What is that?

Mr. Robert L. Carter: Mr. Tucker was reprimanded.

Justice Hugo L. Black: For representing a man [Inaudible]

Mr. Robert L. Carter: Well, the --

Justice Hugo L. Black: -- [Inaudible] statute.

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

Justice Hugo L. Black: That's not [Inaudible]

Mr. Robert L. Carter: That's right.

That was dismissed.

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Well, I think it's been found, Mr. Justice White that what we do --

Justice Byron R. White: [Inaudible]

Mr. Robert L. Carter: Yes sir.

Justice Byron R. White: According to your review [Inaudible]

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

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

Now what this leaves us with is --

Justice Byron R. White: [Inaudible]

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

Justice Byron R. White: Was there any [Inaudible]

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

And my --

Justice Hugo L. Black: Did NAACP recommend its lawyers?

Mr. Robert L. Carter: Yes sir.

And on this day --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: I don't understand.

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Well, Your Honor, the point is that in terms --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Well, the -- the --

Unknown Speaker: [Inaudible]

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Well --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: I think that what the evidence will disclose in this case and as the -- and I'm not attempting to invade the problem.

Unknown Speaker: [Inaudible]

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

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

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

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Well, some --

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Well, sometimes.

Unknown Speaker: [Inaudible]

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

Justice Hugo L. Black: [Inaudible] I didn't quite understand your argument [Inaudible] that argue on the basis of what I believe or what the record shows and then can NAACP give privilege [Inaudible]

Chief Justice Earl Warren: Mr. Carter, you do stand among -- you do stand on that Mr. Carter?

Mr. Robert L. Carter: Yes, I think that the -- I think that the -- although the -- yes, I think that the evidence and I hear that I -- I think that the evidence itself is not that clear cut but I think that in terms of the issue --

Justice Hugo L. Black: [Inaudible]

Mr. Robert L. Carter: Alright sir.

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

Unknown Speaker: [Inaudible]

Mr. Robert L. Carter: Yes sir.

From the cases that have been cited -- that they'd cite over this.

Chief Justice Earl Warren: Very well Mr. Carter.

Mr. Wickham.

Argument of Henry T. Wickham

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

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

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

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

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

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

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

It didn't take a thing away from me.

Justice Hugo L. Black: May I ask you, whether you think the statute can go so far as the people are concerned?

Mr. Henry T. Wickham: Well, I think we get to Section 54-78 to answer that question sir.

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

Justice Hugo L. Black: Does that include the [Inaudible] and insurance companies.

They have a very good [Inaudible]

Mr. Henry T. Wickham: And --

Justice Hugo L. Black: It goes far beyond that [Inaudible]

Mr. Henry T. Wickham: I'm not familiar with the foreign bureau.

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

Justice Hugo L. Black: Yes but it may direct to the law -- the law of Virginia [Inaudible]

Mr. Henry T. Wickham: I know no consists of law in Virginia that is on that subject that deals with that subject.

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

Mr. Henry T. Wickham: No sir.

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

Justice Potter Stewart: Chapter 33, does not apply -- its provisions do not apply if the corporation has a pecuniary interest in the litigation and I should assume --

Mr. Henry T. Wickham: Well --

Justice Potter Stewart: -- an insurance company which might be liable to fail if the -- if its insured loses would have a pecuniary interest.

Mr. Henry T. Wickham: Well, no sir.

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

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

Chief Justice Earl Warren: Well, which --

Mr. Henry T. Wickham: And you can't separate that --

Justice Potter Stewart: The solicitation of whom, by whom of what?

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

Mr. Henry T. Wickham: The right sir.

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

Mr. Henry T. Wickham: If they suggested that the -- that I use their attorneys.

Justice Potter Stewart: You're insured -- you're uninsured and you heard -- you become a defendant and your liability insurer says, “We'll furnish your lawyer and we'll pay him.

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

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

Mr. Henry T. Wickham: Well, I'll say this sir.

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

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

Justice Potter Stewart: It wouldn't be an agent of the attorney, would they?

Mr. Henry T. Wickham: That's right, and again, you've got the word agent.

Justice Potter Stewart: That's right.

Mr. Henry T. Wickham: -- invoke those definitions.

Justice Potter Stewart: It would be quite similar whether they'd come under the old -- whether -- either with --

Mr. Henry T. Wickham: That's correct sir.

Justice Potter Stewart: -- either the NAACP or an insurance company would come under the original version of the statute as to the amount who is agent, wouldn't it?

Mr. Henry T. Wickham: That's correct.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's correct sir.

In other words, you've got two --

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: I think that that amendment would, yes sir.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: I don't believe it is sir.

I think that lawyers recommend it quite often.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's correct sir.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: Well, that's where you get into another question of control.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: It gets in the word of control, the master-servant relationship comes into -- came into this picture as well as --

Unknown Speaker: [Inaudible]

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: And paid his fee?

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: Well, if -- if they -- if they can go hand and glove, yes sir.

I have a hard time in my own mind.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's correct.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's right sir.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's correct sir.

Justice Hugo L. Black: The federal can change [Inaudible] they name a lawyer and they paid his fees.

Mr. Henry T. Wickham: Then we get back to control of the litigation and I assume no control.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: I say, I can't see the distinction, therefore, I say that would be of no violation, that's correct sir.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: And no -- and no control.

Unknown Speaker: No control.

Mr. Henry T. Wickham: That's correct.

Now, that's -- we put that in a vacuum.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's correct sir.

That's correct.

Justice Byron R. White: Now what would you say [Inaudible]

Mr. Henry T. Wickham: That's right.

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

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

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

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

He is NAACP or was NAACP in Virginia.

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

And --

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: No sir.

No sir.

They're not employees.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: I don't think he was on a retainer.

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

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

Justice Hugo L. Black: Do you think the activities [Inaudible]

Mr. Henry T. Wickham: I can't say if it was subjecting to disbarment sir because I've seen --

Justice Hugo L. Black: Do you think he's a violator of this law?

Mr. Henry T. Wickham: It will make him a violator of Section 54-74 which would subject him to --

Justice Hugo L. Black: What he has done heretofore makes him violator of [Inaudible]

Mr. Henry T. Wickham: Absolutely.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: Not -- not in Mr. Hill's case sir.

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

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

It's in blank.

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

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

Justice Hugo L. Black: How can you do it the right way?

Mr. Henry T. Wickham: How can I do it the right way?

Justice Hugo L. Black: [Inaudible]

Mr. Henry T. Wickham: Well, I think, one --

Justice Hugo L. Black: [Inaudible]

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

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

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

They got no financial gain of this.

Now, these lawyers --

Justice Hugo L. Black: What you're saying is that these lawyers were working [Inaudible]

Mr. Henry T. Wickham: That would -- they would not be covered by this law, that's right.

Justice Hugo L. Black: And the only way you can get that cases [Inaudible] get somebody free.

Mr. Henry T. Wickham: Well, I don't know.

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

Justice Hugo L. Black: Some of them are, I would think throughout [Inaudible]

Mr. Henry T. Wickham: Well, I don't know today whether or not in Virginia that there's much expense involved anymore in this particular type of litigation that -- in this record, I mean, the segregation litigation.

Justice William J. Brennan: Lawyers [Inaudible]

Justice Arthur J. Goldberg: [Inaudible]

Mr. Henry T. Wickham: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Henry T. Wickham: Yes sir.

Justice John M. Harlan: And so the Supreme Court held interpreting the statute of your court.

Mr. Henry T. Wickham: Our Court of Appeals?

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

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

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

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

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

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

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

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

I don't know.

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

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

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

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

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

I urge this Court to sustain the court below.

Chief Justice Earl Warren: Mr. Wickham, if I may ask you one question?

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

You said, yes.

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

And I don't understand you gave an answer.

Mr. Henry T. Wickham: I said yes.

Chief Justice Earl Warren: The answer is yes.

Mr. Henry T. Wickham: But I'm not – in all frankness, I'm not sure of it that the -- that the answer is completely yes.

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

Chief Justice Earl Warren: From Mr. Justice Goldberg, question that asked -- it could have just before that.

Justice Potter Stewart: It involves the -- you said that the element of control were lacking.

Mr. Henry T. Wickham: Yes sir.

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

And you said yes.

Mr. Henry T. Wickham: Yes sir.

Justice Potter Stewart: And I would suppose you're relying on the last sentence on page 14-A and the top sentence on page 15-A of the petition for certiorari.

You better look at it before you [Inaudible] --

Mr. Henry T. Wickham: Yes sir.

I've got it right here sir.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: Well, no sir.

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

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

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

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

Now, I --

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's correct.

He's the chief counsel in all these cases.

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: Well --

Unknown Speaker: [Inaudible]

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

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

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: Well -- in the -- in the first place, the chairman sets fees in all cases except his own and then he consults with the president and then they set his fee.

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

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

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

You're off this committee.

He won't be reelected next year.

Unknown Speaker: The employer [Inaudible]

Mr. Henry T. Wickham: I didn't say that sir.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: Having the staff, to me, shows a great deal of more control than just having a list of lawyers here when the staff -- the chairman and the staff run the State Conference NAACP, that's what I'm saying sir.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's correct.

Justice Hugo L. Black: It would be alright.

Mr. Henry T. Wickham: It can possibly be alright, yes sir.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: Yes sir.

Unknown Speaker: [Inaudible]

Mr. Henry T. Wickham: That's correct sir.