BELL v. MARYLAND

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Argument of Jack Greenberg

Chief Justice Earl Warren: Number 12, Robert Mack Bell et al., Petitioners, versus Maryland.

Mr. Greenberg.

Mr. Jack Greenberg: May it please the Court.

This case is here on writ of certiorari to the Court of Appeals of Maryland.

Petitioners have been convicted of violating Article 27, Section 577 of the Public General Laws of Maryland, the trespass statute which is the same statute that -- that was read to you by Mr. Rauh and was the statute that was involved in the Glen Echo case.

They were indicted on a two count indictment, which appears on page 6 of the record stating that the petitioner unlawfully did enter upon and cross over the land premises and private property of a certain corporation in the State to with Hooper Food Company, Inc., a corporation, after having been dully notified by Albert Warfel, an agent, not to do so.

Second count of the indictment charges that they entered this property which was then and they are posted against trespassers.

They were found guilty on Count One, fine $10 and caused the fine being suspended.

They were acquitted on Count Two.

Petitioners claim that their convictions violate the Equal Protection Clause of the Fourteenth Amendment and that the criminal proceedings and judgment enforced racial segregation against them.

They also claim that the judgments below violate the Due Process Clause of the Fourteenth Amendment in that there was no evidence to sustain the conviction under the indictment and statute which have just been read.

Or if it were to be held that there was sufficient evidence, the indictment statute did not give them fair notice required by the Due Process Clause.

Justice William J. Brennan: Was that question raised in the state court?

Mr. Jack Greenberg: It was raised, I believe, sufficiently to present it here particularly in terms of the free speech argument and I think vagueness argument and free speech argument are really different ways of saying the same thing in a case such as this.

Justice William J. Brennan: Well, is that, Mr. Greenberg, you say it was not raised in terms?

Mr. Jack Greenberg: It was not raised in terms but I think it was raised sufficiently to be here as in Wright against Georgia and other cases where free speech and vagueness in a case such these are intimately linked.

But --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: I -- I go along with that.

I think we argued it first.

I don't want to be said that we're adopting it.

It appears at length in our certiorari petition and in our brief.

Justice Potter Stewart: He's adopting your argument position?

Mr. Jack Greenberg: Well, I would let him characterize it.

But it -- it is an argument upon which we rely.

However, we will not argue it orally because this is the only argument the Solicitor makes and I suppose this is the one that he will be arguing orally.

The facts of the case are in many respects similar to the facts of the other cases which have just been argued.

June 17th, 1960, a group of 15 to 18 Negro students among whom where the petitioners who numbered a dozen, entered the lobby of Hooper's restaurant in Baltimore, they were met by the hostess at the door or rather within the restaurant, beyond the door and she stated, "I am sorry but we haven't integrated as yet."

The restaurant manager, Mr. Warfel, whose name appears in the indictment, came up at this point and began to talk to the petitioners.

He testified that he told them it was company policy that we haven't integrated the restaurant.

And then he said in the process of translating the company policy, the group broke.

They've brushed by us and sat at various tables in the restaurant and after they were seated, they proceeded to hedge (Inaudible) which is explained as then spreading out and sitting at various other tables in the restaurant.

The owner of the corporation operating the restaurant arrived and instructed Warfel to call the police.

When the police arrived, the petitioners were seated at various tables, some upstairs, which was a restaurant, and downstairs, which was a cafeteria and grill.

Warfel read the Maryland Code to the petitioners.

Clerks and waitresses took down their names and then Mr. Hooper went to the magistrate to obtain warrants.

There is no question that they were refused service and an effort was made to eject them from the restaurant solely on the basis of their color.

Hooper made it clear that he agreed with the petitioners' objective.

He testified that, "I go on record as I favor what you people are trying to do."

He also said, "I told Mr. (Inaudible), who was one of the petitioners here, that I felt personally that it was an insult to human dignity.

I sympathize with it and also told them that my customers govern my policy."

Petitioners' equal protection argument in this case is presented in three parts and it's essentially the same, the petitioners have made in the -- in the cases preceding this one that is that we submit that the arrest and conviction here served only to enforce the racially discriminatory decision of the owner and then consequently, under Shelley against Kraemer, which was argued at length by Mr. Rauh and other cases holding similarly.

The State has participated to some significant -- significant extent in enforcing and encouraging racial segregation and that such state action is forbidden by the Fourteenth Amendment.

We wholly urge such an argument upon the Court but in view of the fact that it has been argued at length previously, we will prefer to concentrate in this oral argument upon other aspects of the question.

Petitioners submit -- submit also as in the other cases that the choice of the proprietor was not an authentically private decision but as -- is abundantly demonstrated by the record was influenced by the custom of the community.

In fact, this -- in this case, it is more clear that in any other because Mr. Hooper said that, "I wholly believe in what you're trying to do.

I completely agree with you and sympathize you but my choice is influenced by the community."

This choice of the community in turn, we submit, was to some significant extent and that is the terms of burden to a significant degree.

And we submit that in this case, the significant has been influenced by historic pattern of Maryland laws which had the purpose of sustaining a segregated society.

I think it should be recognized that upon these convictions occurred, Maryland had not, in the sense that has been suggested here, turned the corner and started enacting public accommodations, legislations and so forth.

At this time, the Maryland was a State without laws of that sort.

And we say that under such circumstances, the very least, state action should be held to have a role in state custom unless something to the contrary, something contrary to common experience to show.

We say that it is beyond belief that a State such as Maryland, which although its policy is now in the process of change, has not helped to create and shape the existing state, what, segregation custom.

Well, for many years, it has had a statutory policy of requiring racial segregation in many institutions of public life.

This is not the charge, the present regime in the State with wrong doing but rather simply to recognize that state responsibility for a custom having once attached, continuous to play a role in what occurs in life.

And to this extent, we submit, the State continuous or at least at the time of this conviction certainly did continue to be involved to a significant degree in the manifestation of the custom which it had helped to create, shape and perpetuate.

It maybe that -- that a simple analogy would -- the -- instructive or descriptive it's -- as if one has poisoned the well and then later repented and sought to cleans it.

Nevertheless, some of the residue of the poison remains and members of the public drink it.

All we're saying is that the man who poisoned the well is, to some significant degree, involved in the owners that has before and those who drank the water even though he has repented and made efforts to undo what he did.

Justice Potter Stewart: I suppose this is a silly question.

It's already been made in the previous case and that is whether customs produce laws or laws produce customs.

Mr. Jack Greenberg: I think both occur obviously.

Customs produce laws and laws produce customs but to the extent that laws produced or shaped customs, the State is significantly involved in them.

Justice Potter Stewart: Generally speaking, that laws reflect the -- the mores of the community that they rather than create them.

Mr. Jack Greenberg: Well, I think sometimes they do, sometimes they represent either the enlightened or unenlightened views of the community leaders who are either ahead or behind of the community.

I -- I think it depends on the law and the situation.

Sometimes one and sometimes the other but I think it is beyond doubt that the -- once the law is on the books, it then plays a role in influencing and -- and educating, encouraging and shaping figure (Voice Overlap) --

Justice Potter Stewart: Now, there's no law of any kind here directly affecting this restaurant, was it?

Mr. Jack Greenberg: Not in the segregation sense, no (Voice Overlap) --

Justice Potter Stewart: That's (Voice Overlap).

The -- the laws you have collected in footnote --

Mr. Jack Greenberg: It's on page 30 --

Justice Potter Stewart: -- in page 31 and page 32, what you been able to find, I suppose (Voice Overlap) --

Mr. Jack Greenberg: That's correct.

Justice Potter Stewart: And now as I understand it, Maryland has a -- a law looking at a way requiring non-discrimination.

Mr. Jack Greenberg: Covering some of the county of the State.

Justice Potter Stewart: In -- in some of the county.

Mr. Jack Greenberg: Yes.

And Baltimore has an ordinance also, this has happened since these convictions.

In addition to the custom argument already argued, petitioners would urge upon the Court other fundamental considerations that is that in this case, as in the other cases at bar, the State has upheld the claim of the proprietor, in this case, called the property right against the claim of the petitioners for equal treatment.

The Criminal Court of the City of Baltimore has held as a matter of Maryland law, in the absence of appropriate legislation forbidding racial discrimination, the operators of privately owned restaurants, even though generally open to the public, may discriminate against persons of another color or race however if you're unjust such a policy maybe deemed to be.

And the Maryland Court of Appeals has held in the context of the racial issue in this case that private citizens retained the right to choose their guests or customers and furthermore, that this and maybe enforced by the criminal law of the State.

Now, we submit that this is not the neutral declaration of a common law that always was and emanated from nowhere but rather the expression of a ranking of values on behalf of the State which in the terms of Erie, we quoted in our brief that there is no transcendental body of law outside of any particular state but obligatory within it unless and until changed by statute.

And Justice Holmes, as a number of times written in the same effect as quoted in Erie and -- and in our brief.

But the law of property of a State and its ranking of property claims as again -- against others is, we submit, subject to the requirements of the Fourteenth Amendment.

It's held in Marsh against Alabama and Shelley against Kraemer, that property rights must be created and for subject to the Fourteenth Amendment.

We submit that the values of the Fourteenth Amendment by the nature of their constitutional position are dominant.

The State denies equal protection of the laws when it ranks above these values, the claim of a proprietor open to the public and licensed by the State for the purpose of being open to the public, the right to exclude some persons from his establishment so in the grounds of race.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, I would say that the Fourteenth Amendment, Mapp against Ohio, Mr. Justice Harlan's opinion in Poe against Ullman and other cases indicate that there is a constitutional right of privacy which in the -- the case of a private home, I would submit , would be dominate against something of this sort.

I think the public place can make no such claim and in fact is so thoroughly regulated that -- that it's not the same sort of situation.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, I think if it were a genuinely private club, yes.

It -- it would partake of the privacy protection if it were a -- a sham, a -- a place open to the public under the name of the club and there have been cases under public accommodations statutes to this effect and when it's been found to be a club it has been held to would have the right to make choices of this sort no matter how reprehensible.

And when it's been found to be a place that's going under the name of a club just to be able to discriminate the state commission that you said you can't do that.

And I think it would be the same kind of result.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: A bind cooperative?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, I would think -- again, I -- I am not too familiar with the operation of -- of that type of -- of an operation.

I just wouldn't know.

I think it would depend upon how genuinely public or private it was.

I just don't know.

I once belonged to a cooperative grocery store and as far as I can tell, it's like any other grocery store and I don't think that it should be permitted to discriminate.

On the other hand, if there were some element of privacy in it, it might be different.

The church case we discussed early this morning would involve considerations of First Amendment rights of religion.

And again, I don't feel that it's -- it's necessary to argue how something like that would come out at the time like this.

I think that the values to the -- the considerations to be taken into account are -- are fairly clear.

It is the position of petitioners that the extent that this ranking is in the form of the application of state power or refusal to act to protect the Negro citizen in this claim of equal service.

The State has as much responsibility as if it has affirmatively sanctioned the exclusion in terms of -- of positive legislation.

State inaction in various circumstances has been held to deny equal protection of the laws and burden the failure of the State to insist upon a non-discrimination clause and at least would play a role in the decision was held to -- was so characterized.

Terry against Adams, of course, was a case in which in most views, the State did nothing and thereby, state action in the constitutional sense appeared.

Various cases in the Court of Appeals to the Catlett and the Lynch case cited in our briefs take the issue and deem the civil rights cases themselves.

This Court assumed that the States were living up to their responsibilities in taking the affirmative action necessary to protect the Negro citizens and only in view of this, was the judgment of the Court rendered as it was.

The form that the state protection would have to take is not an issue at this point.

The only thing petitioners submit is that a fortiori, certainly, a criminal conviction cannot be imposed under these circumstances.

The principle argument made against this type of position is that the logic leads too far that -- that there is no state responsibility here because it would lead to an absurd result in the -- in the case of a club or a church or a home.

I notice no one -- everybody gives the case in terms of little boy asking for cigarettes or somebody been thrown out of a home or somebody being thrown out of the church was the case we have here.

It's a case of a place fully opened to the public, fully subject to regulation.

Indeed, due process of law is not taken away from such a property owner when a state requires to serve Negroes.

I would submit due process of law would be taken away from a home owner if he were required to have a guest in his home no matter what the race.

And we submit that these reductio ad absurdum arguments are self-defeating because by being so far removed from the type of case that we have at hand here.

They indicate type of case we have at hand is one surely within the protections of the Fourteenth Amendment.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: No, I would not.

In fact, I have -- that's my case.

I have a case involving not a lunch counter but a restaurant, that's correct, yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Yes, I would say the State has an affirmative responsibility to protect and form that would take is -- involves other questions but certainly, a fortiori, we can't have an arrest and a conviction and -- and we would submit that for these reasons, the conviction in this case should be reversed.

Argument of Attorney General

Mr. Attorney General: Mr. Chief Justice, may it please the Court.

The facts in this case are certainly different, we believe, and -- from the other cases presented here particularly on the application of the trespass statute.

For here, there was a warning given.

The petitioners have perhaps crossed over the manner giving the warning but it's perfectly clear from the testimony of the leader of the group (Inaudible) in the record that they were not permitted to seek themselves in the restaurant due to the statement of the hostess that they had not integrated yet.

And the trial court took this into consideration, if you will note the opinion of Judge Burns in the court below where he noted that they were refused seats in this restaurant.

The physical layout of the restaurant is perhaps important to the Court's decision here in that there was a lobby.

The petitioners entered the restaurant through a revolving door and came into a room known or referred to in the record as the lobby.

At the end of the lobby, arms of the door there are four steps.

At the top of these steps, the hostess was stationed.

And it is the common practice in this restaurant for the hostess to see all customers coming into the dinning area.

There is a fence separating the dining room and the lobby in this restaurant.

Now, the Maryland trespass statute not only prohibits entry but it prohibits crossing over.

These petitioners crossed over a portion of the premises -- of the restaurant premises after being warned not to do so.

Not only did they enter the dining area and go downstairs after warning, they crossed over a portion of the premises.

And this is precisely what the Maryland statute prohibits.

The -- there's another element in this case which is of significance, we believe, and that is that the police refused to arrest the petitioners.

The polices were called by the owner some time after the petitioners had entered the restaurant and after the owner and the manager of the restaurant had, at length, conversed with the leader of the group to try to persuade them to leave peaceably.

He explained his policy to them.

He stated that he was segregating, refusing service simply because his customers did not want to eat with Negroes.

That is the only reason he gave.

The police were called by the owner after he could not persuade these persons to leave and when the police arrived, they refused to even read the trespass statute.

This was done by the restaurant manager himself.

The police took no part whatsoever in the goings on in the restaurant itself.

The owner had to go all the way down to the police station to swear out warrants.

He went down to police station and the -- the magistrate apparently called or was called, it's not clear from the record which by the petitioners and they made arrangements to voluntarily come down to the court the following Monday on their own recognizance.

There was no custody taken.

There was no arrest.

The State in this situation is certainly a neutral party.

Now, we feel that under the facts and circumstances of this case that this Court is faced with a square decision on whether state criminal trespass conviction of Negroes protesting racial segregation policy in a private restaurant, in a private building constitutes state action proscribed by the Equal Protection Clause of Fourteenth Amendment where neither local laws nor custom requires segregation.

Now, the mere recitation of -- did statutes does not, in our view, constitute any state custom on the part of the State of Maryland.

As far back as 1960, Chief Judge Thompson of the United States District Court in the District of Maryland in a case in which custom was a factual matter before the court decided in Slack versus Atlantic White Tower.

That as far back as 1957, there was no custom of segregation in -- in Maryland.

Furthermore, there is no evidence before the Court in support of the petitioners' contention that there was such a custom.

On the other hand, the petitioners' leader admitted that on a previous occasion or on several previous occasions, in the same general area, in the same community, they had sat and had been served in restaurants.

This is certainly very damaging admission on the part of the chief witness for the defendant, the petitioner says in this case if they had been served in other restaurants in the community.

Certainly, this negates any community custom of segregation.

There's no other evidence to the contrary either.

The owner in this case would not be penalized in anyway because he admitted Negroes.

There would be no state action that could be taken to forcing to admit Negroes.

He had no contract with any other restaurant owners.

He -- the -- there was no state law, there was no state policy, there was no state action on any -- in any respect that could compel the restaurant owner here to segregate his facility.

On the question of licensing, in Maryland, there's no difference between the licensing of a club in which persons are excluded and a restaurant except where the facility, no matter what it maybe, is operated without profit to the operators.

And this is the only distinction made in the licensing statute which is Section 8 (a) of Article 56 of the Maryland Code.

The health statute which involves the regulation by the State on the grounds of sanitation etcetera, applies to all facilities whether they'd be country clubs, private eating clubs, whatever they may be.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Yes, in that case there was a -- a rat infestation in the home and the -- this Court ruled that where there was evidence outside the home that there was such a rat infestation but a health inspector could enter the house.

Now, the Maryland statute certainly isn't directed at sit-in demonstrations or segregated facilities or neither this sort of thing.

And as a matter of fact, there was a prior case in Maryland Court of Appeals in which the statute was tried to be applied.

It was -- it was overruled by the Court but in Krause versus Maryland, the Court stated that the statute at the least would've been applicable if notice had been given in a case where there's a repossession of an automobile in a man's property.

The only question involved there was that whether there was a notice given and the Court there found there was no such notice.

The owner wasn't there at the time and that the people went on the property and the only forewarning they had was that he had leaned on the car.

The -- all trespassers, regardless of their race, color, sex, color of hair or what -- whatever manner that they -- or whatever characteristics they have that the owner of private property in Maryland that wishes to call into play to forbid their entry are equally guilty under the Maryland trespass statute.

If a woman wants to go into a stag bar and the owner doesn't wish to let her enter, I don't think that she could call upon the Fourteenth Amendment in this situation.

The Fourteenth Amendment says nothing about race or color.

It merely says a State shall not deny equal protection.

In fact this Court, in Brown versus Board of Education said that after an exhaustive study of the debates in Congress and other materials available at the time the Fourteenth Amendment was passed, the time the civil rights bills were enacted that this Court could not determine with any certainty what the Fourteenth Amendment was aiming at.

That was stated in the -- a unanimous opinion of this Court in Brown versus Board of Education.So I think that the remarks of Mr. Justice Goldberg in this regard that the Fourteenth Amendment and the Thirteenth Amendment must be read together is not quite the meaning which was given to the Fourteenth Amendment by this Court on that occasion nor --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: No, they -- they certainly had something to do with Negro rights but that is not the only thing that they had to do -- deal with.

Justice Arthur J. Goldberg: This is the argument involved in (Inaudible)

Mr. Attorney General: I'm not saying that they are not applicable and in fact, it's -- it's perfectly clear that they're applicable to the Negro situation that the example that was cited by Mr. Justice Goldberg, I believe was the civil rights cases and I think that the discussion there as in the slaughterhouse cases was on the privileges and immunities.

Justice Arthur J. Goldberg: (Inaudible) It's not "restrictuity".

Mr. Attorney General: The Fifteenth Amendment, again in your theory in Smith versus Allwright, does state that the -- the right to vote shall not be denied on the grounds of race or color and that's clearly such case.

The Fourteenth Amendment includes a -- a whole bundle of rights.

This Court has used it to enforce the rights of the First Amendment -- Fifth Amendment and other Amendments of the Constitution.

It's not simply a protection due to the expression that's been used in some of the cases, the badge of slavery.

The Amendment just hasn't been determined to be that in all the cases.

Now, it can hardly be said here than that the State compelled or coerced or mandated or commanded the discrimination.

If the court to -- the State here had no connection whatsoever with the decision of this owner to segregate his particular restaurant nor were rights that are constitutionally protected denied to the petitioners.

Now, in the civil rights cases, it was made clear that there must be an abrogation or denial of rights for which the State alone could be held responsible.

This was a fundamental wrong that was intended to be a remedy.

The distinction that can be applied to Shelley versus Kraemer here, I think, should be looked down in the light of some other situations.

For instance, where there is a -- a will in which there is a testamentary clause which prohibits the -- a share of the State can go to one of my sons who marries out of the Hebrew faith, such was the case in Gordon versus Gordon which came up to this Court after Massachusetts had stated that such a discriminatory clause in the will which was given effect by the courts of the Massachusetts was perfectly valid.

This Court denied certiorari in that case and another situation, the Girard Trustees case which came up to this Court from the courts of Pennsylvania.

In that case, it was held that there was no prohibited state action when the provisions and the testamentary instrument, there, the will of Girard, set up a trust to be exercised in the first instance when the case came up before this Court by the City of Philadelphia.

Thrown out on those grounds kept -- court in Pennsylvania then appointed individual trustees which continued the discriminatory policy of this Girard College which was set up under the trust.

When the case again came before this Court on certiorari, the Court denied certiorari.

Now, it's hard to -- to look at those cases or it's hard to justify the results in those cases with the result sought by the petitioners here on the grounds of state action.

Another case is the Black versus Cutter Lab in which there was a discriminatory provision in a collective bargaining agreement which actually was decided in this Court not to be a grounds of state action.

There are other examples that perhaps could be raised.

Now, several cases have been mentioned to this Court as -- today, which I think deserve a little comment, and one is Marsh versus Alabama that -- and comparing that with Terry, for instance, to find that some positive action on the part of the stage called for.

First, it should be born in mind that these cases involve rights that were reserved by other Amendments of Constitution.

In the Terry case, it was the Fifteenth Amendment which certainly has a -- a definite connection with the racial issue to the words of Amendment itself and perhaps calls for a stronger state action.

The other involves the First Amendment.

And here, we don't have any such thing that here, the -- the parties that came on to the property and -- were refused service didn't have any rights to be there.

Now, the mere denial of the rights by the failure to give them redress, certainly, shouldn't amount to state action.

I don't think the court has ever gone that far.

Chief Justice Earl Warren: Did they have a right to go in the café and so they were told (Inaudible)

Mr. Attorney General: Well, that's a question -- yes, I believe that's so.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: They were inside the -- they were inside the door.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: At the steps where the hostess was located.

Chief Justice Earl Warren: What did say (Inaudible) that was in the record.

Mr. Attorney General: What did who say?

Chief Justice Earl Warren: What do they know about (Inaudible) at that time?

Mr. Attorney General: They were told weren't segregate -- weren't integrated yet.

Chief Justice Earl Warren: They weren't integrated (Inaudible)

Mr. Attorney General: And they were refused --

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: They were refused to be seated at that time.

Chief Justice Earl Warren: I beg your pardon.

Mr. Attorney General: They're -- they were not permitted to be seated.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: But the question is --

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: No, but they disregarded what the hostess said and they crossed over to where the seats were.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: They all came in the same door.

Chief Justice Earl Warren: They didn't but they weren't all there.

(Inaudible)

Mr. Attorney General: I think according to the record, they were cross testimony --

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: Your -- Your Honor, probably, you're speaking of the testimony of the owner about a previous incident in the restaurant where some of the people went into the bar.

In this case, they all came in the same door into the lobby.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: No, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: They all came in the same door and they congregated in the -- in the lobby.

After the refusal to let them be seated, part of them pushed by the hostess and reseated in the dining room at various tables and the others went down the steps to a grill which is in the basement but they had been warned prior to doing this.

And this is evident from the -- their own leaders' testimony, pages 42 and 43.

Chief Justice Earl Warren: Who had warned them?

Mr. Attorney General: The -- both the hostess and the manager had warned them.

Chief Justice Earl Warren: By saying, "You have to leave the premises"?

Mr. Attorney General: Yes, sir.

Chief Justice Earl Warren: That means that they were prohibited from being on the (Inaudible)

Mr. Attorney General: I think it was understood to me in that, yes sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: Yes, sir.

Chief Justice Earl Warren: So that's what I'm trying to (Inaudible)

Mr. Attorney General: That's right.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: That's right.

And one of the -- one of the petitioners, if -- if I remember correctly in the record, says that they were refused seats.

And another point, he says that they knew that they're going to be arrested.

This is part of their technique of demonstrating in this restaurant.

It could be said that they had actual intent to be arrested in this case as part of their technique for -- for the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I believe in this case, it would your crossing over, it could be entry too, either one.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: No, they weren't.

There was another --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: Oh, very definitely.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: Simply because -- there's another Maryland statute, Section 576, I believe it is, which says there were signs are posted and there is entry.

Then that's the crime.

Now, it would be --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: There were no signs, no, sir.

But whether the -- the actual crime took place at the street or at the -- inside the lobby doesn't particularly matter here as long as the facts show that there was a crime committed, and merely moving out to the street doesn't help I think.

On the question of vagueness, certainly, this Court's decision in Alford versus United States is far more difficult to understand than what the Maryland Court of Appeals did in this case.

Now, the Maryland Court of Appeals found that there was a crime committed if a statute was violated whereas in -- in Alford and this is the first instance that anyone had come up under this situation, in Alford, there was a statute which prevented the construction or the building of a fire near a forest in the public domain, that's all the statute said and the man was convicted for building a fires -- a fire near the forest.

Now, he was the first one to come before this Court or any court in which the -- an appellate court anyway, determined what that statute meant.

And the Court upheld the conviction.

Now, certainly Maryland statute is not only clear, words are easy to understand but there was without a doubt a -- a warning not to enter the particular parts of the restaurant where the petitioners went after which they entered and crossed over of those portions.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I'm not aware of that case, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I think that perhaps in that case, you have a -- a little bit different construction of -- of the wording.

Isn't that a case where there -- there was a -- an agency which determined what the words were.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I see.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I appreciate your suggestion.

Well, in -- in summary, I would say that if the basis of constitutionality of such conviction is neutrality part of the States which, under the decisions of this Court for the past hundred years, appears to be the standard, then the State of Maryland cannot be held responsible for this conviction.

If anything this -- the officers of the State here discouraged the owner from bringing the case even in the court, they required him to go down the police station which in a number of cases, I wouldn't even do.

There was no evidence at all that the police said any forewarning of the -- the incident that took place or there was any state encouragement of the -- the segregation policies of the restaurant.

They had no ownership rights in the building or the -- or the -- of the restaurant itself.

There was no one in this -- in the state employee that was working there.

All the mitigating factors that -- that seem to valid this Court in -- in rendering its decisions in this field are absent in this case.

And it doesn't seem to be an easy way to -- to reach a decision one way or the other on the primary constitutional issue raised.

Therefore, the State of Maryland respectfully submits that the judgment below should be affirmed.