ROBINSON v. FLORIDA

Print this transcript Transcript: 

Argument of Alfred I. Hopkins

Chief Justice Earl Warren: James Russell Robinson et al., Appellants, versus the State of Florida.

Mr. Hopkins.

Mr. Alfred I. Hopkins: Mr. Chief Justice, may it please the Court.

This is an appeal from the Supreme Court of the State of the Florida which affirms certain criminal convictions by the criminal court of record in the -- for Dade County, Florida involving 18 appellants.

The adjudication by the trial court was head pursuant to Section 509.141 of the Florida Statutes.

This chapter of this Section is set forth on page 8 of the appendix of appellants' main brief.

To begin with an analysis of the statute, so we'll know what the case is about, the statute is rather unwieldy piece of legislation provides in essence insofar as it is germane to this case that if any person enter a restaurant and if his presence or continued presence is, among other reasons, in the opinion of the management, thought to be detrimental to the business, then the manager may request that this patron leave the premises.

If the patron declines to leave, the manager may then call the police. He's telling the client to leave, he is deemed to be illegally on the premises and subject to arrest and conviction for misdemeanor.

The statute also provides for certain other criteria of undesirability such as persons being intoxicated, immoral, profane, lewd or brawling, but then at the end, it has this rather generalized provision that any other person who, in the opinion of the management, is -- is -- the presence of such a person would be detrimental to the business, and that person maybe ejected from the premises.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: The continue --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: Not in terms of food.

They were seated, if I may explain from the beginning --

Justice Arthur J. Goldberg: They took seats.

Mr. Alfred I. Hopkins: They took seats.

Let me, if I may Your Honor --

Justice Arthur J. Goldberg: (Inaudible) the fact the this Court has so heavily rejected (Inaudible).

Mr. Alfred I. Hopkins: I wish I had seen the point of the trial court.

We didn't raise that particular issue but they were never served any food at all.

What happened was this.

The appellants, constituting 18 persons and being both Negroes and white persons in association with Negroes, entered into a -- a department store in Miami, Florida called Shell's City.

The Shell's City has 19 departments, one of which is a restaurant.

It serves the public, Negro and white alike, without discrimination in 18 of the departments but in the restaurant, it draws the color bar.

Prior to the incident in question, which gave rise to these criminal prosecutions, there had been two other attempted sit-in demonstrations.

They're mentioned very briefly in the record and the consequences of them are not set forth in the record.

On this particular day, which was on August of 1960, the appellants walked into the restaurant in this department store, sat down in about five tables.

They were not served when they sat down and they waited for service.

They waited for about a half-an-hour.

At the end of the half hour period, one of the appellants got up from the table, walked over to a Mr. George McKelvey.

Mr. McKelvey is the Vice President of Shell's City and he is also a general manager of the store.

The appellant asked Mr. McKelvey could he be served.

Mr. McKelvey said, “No”.

The appellant said, "Why?"

He said, "I have nothing further to say to you."

At that point, the appellant went back to join the group and sat down.

Then Mr. McKelvey got on the phone and called -- called the police and told them what was happening in his restaurant.

About 10 minutes later, a policeman arrived, Sergeant John Suggs of the Miami police force.

He then, with Mr. McKelvey, walked to each of the tables and Mr. McKelvey again made his request to the appellants that they leave.

They again declined to leave whereupon Sergeant Suggs took them all into custody.

Now, going back a step, while they were in the restaurant, there were other persons, white persons seated there and were being served.

That is clear from the record.

The manager of the restaurant testified at the trial that the reason for his refusal of service was the fact that the appellants were Negroes or white persons in association with Negroes, and that, in his opinion, would make a detrimental to any -- longer entertain them.

So the source, the substance, the foundation of his reason for refusing to serve them was their color or their associations with persons of color.

There is no evidence in the record that any of the appellants were engage in any boisterous or noisy conduct.

There is no evidence that they comported themselves in any fashion which would have included them in the other specific provisions of Section 509.141.

They were peaceful at all times.

There is no evidence in the record that there was any hostile crowd gathered about the -- the group of appellants.

There was no situation that would have erupted into violence.

No indication of any kind of situation such as that.

The facts are essentially undisputed, the appellants put on no evidence of their own. However, cross-examining Mr. McKelvey and his associate, Mr. Warren Williams, also a vice president of Shell's City, certain additional facts were adduced, which I think should lead to a reversal of the judgments below.

Mr. Williams, when he was questioned, was asked why the people, why the appellants were refused service.

His --

Justice Hugo L. Black: What page is that?

Mr. Alfred I. Hopkins: On page 28, Your Honor, between pages 28 to 30.

I wanted to point out Mr. Williams' statement of a custom prevailing in Dade County, Florida at that time which was August of 1960, some three years and two months ago.

He indicated not once but on four different occasions that there was a custom in Dade County not to serve Negro and White people in the same restaurant.

And he indicated that -- and it said that this custom forced him to do what he did.

If I may read some extracts from the record, at the top of page 29.

Mr. Williams answers question of counsel.

First, the question - "Do you know why these people were refused service at the restaurant?"

Answer - "Well, basically, it is the policy of Shell's City not to serve colored people in their restaurant."

"Why?"

Answer - "That is based upon the customs, the habits, and what we believe to be the desire of the majority of the White people in this county."

Again, towards the bottom of page 29 in talking about why they discriminate, Mr. Williams again answers, "Well, it goes back to what is the custom that is the tradition of what is basically observed in Dade County would be the bottom of it."

Again --

Justice Hugo L. Black: What -- what is the precise point for which you present this argument, this -- emphasize this --

Mr. Alfred I. Hopkins: At a later point in my argument, I wanted to -- to make this position, Your Honor, that we have uncontradicted in the record a statement by the State's own witness that there is a custom prevalent was at that time on the White majority in Dade County, which compelled the manager of the restaurant to segregate and --

Justice Hugo L. Black: You -- you mean that if the sentiment of a community can only be met by taking that course that the Constitution would make that state action.

Mr. Alfred I. Hopkins: I base my position, Your Honor, on the dictum of Justice Bradley in the majority opinion of the civil rights cases.

I grant you it's only a dictum but he did say it.

If I may read from his statement set forth on page 27 of appellants' main brief.

Mr. Justice Bradley said, "Civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of law, customs, or judicial or executive proceedings."

Justice Hugo L. Black: Well, you know -- have we had -- I'm not -- I'm asking you this for information.

Has this Court ever had a case when it gave that effect to custom of the people as distinguished from custom of the law officers and the state --

Mr. Alfred I. Hopkins: Your Honor, I have not found a case.

Justice Hugo L. Black: -- and the long continued legal practice by having the effects such as we had in the Tennessee case or in the failing to summon jurors where the state officials just did not do it over the period?

Mr. Alfred I. Hopkins: Your Honor, I haven't found such a case and this question in my mind as to what Justice Bradley meant -- what the majority of the Court meant.

Also a fact that the -- one of the early civil rights acts, R.S. 1983 uses the word "custom or law" where --

Justice Hugo L. Black: You're relying on that?

Mr. Alfred I. Hopkins: I am suggesting that that statute repeats the same language and that that may have been in the mind of the framers of the Fourteenth Amendment --

Justice Hugo L. Black: But does that have any relevance to your argument here except insofar as you want to construe the Fourteenth Amendment as in saying that custom of the people -- prevailing sentiment of the people should be accepted as the law of the State?

Mr. Alfred I. Hopkins: I'm suggesting that it may well have been adapters of the framers of the Fourteenth Amendment.

When they use the word "state", we're thinking that simply of the agents of the people, that is the legislators, the administrators, the judges but while have been thinking of the body politic itself.

For example, and examples are rare in this field, but in the case of Neal versus Delaware, the Court was dealing with a provision of the Constitution of the State of Delaware, where the people of the State of Delaware had purported to disenfranchised or limit the franchise to White people.

This is by way of analogy but there was a state constitutional provision adopted by the people of the state and the Court stated in the -- the Supreme Court stated that that provision was void because it was repugnant to the Fifteenth Amendment of the Federal Constitution.

What I'm getting at is this.

It seems to be clear that the people of the state if they act formally and politically, acting the political fashion to the legalism of a constitutional provision can constitute the State.

Justice Hugo L. Black: But what percentage of the people would the evidence require that you shall have that custom and that sentiment?

Mr. Alfred I. Hopkins: In this case --

Justice Hugo L. Black: How would you try that out?

Have you used evidence?

Mr. Alfred I. Hopkins: In this case, we have the evidence.

Mr. Williams stated that it was a custom of the majority of the people.

Justice Hugo L. Black: But that -- that's rather slim to read, isn't it, to rest constitutional decision on as to whether the people have so engrafted it on a -- as a part of their legal system that it has to be used to set aside the state law as unconstitutional?

Mr. Alfred I. Hopkins: Mr. Justice Frankfurter indicated in Terry and Adams and one of his again in dictum that custom could have the force of law, in fact be stronger than the law.

Justice Hugo L. Black: But I think he wrote to that effect in the case from Tennessee with reference to the tax rather they have been taxing railroad, as I -- I hadn't got the name of it, but that was in line with our cases with reference to juries whether the Court's function so long in one way that you can say that that has become somewhat say the custom of the law enforcement officers and the state officials and others might say just the custom of the -- of the people.

Mr. Alfred I. Hopkins: Your Honor, I don't bother my case entirely on that ground but I do suggest it to the Court as a possible way of resolving this case because I say the authority seems to be slim or negligible, so I did feel that I should bring that idea across to the Court in as much as it is in the record and no contradiction by any of the State's witnesses.

Justice Hugo L. Black: While I was asking you, because I'm familiar with those statements and I think you're perfectly right in presenting it.

I have no -- I couldn't understand but I'm criticizing you about the (Inaudible).

Mr. Alfred I. Hopkins: A further statement of the facts insofar as they involved the Florida restaurant and hotel licensing statute.

Florida has, like many jurisdictions, elaborate regulations and statutory provisions governing the licensing of restaurants.

Relevant provisions of our statute, Chapter 509 are set forth in the appendix to the appellants' main brief.

The statute provides that no one may operate a restaurant unless he has a license.

The statute provides for the establishment of the Hotel and Restaurant Commission which provides -- which issues the licenses.

This Commission is set up to encourage the public health safety and welfare, safeguard rather, the public health, safety and welfare of the people of the State of Florida.

No restaurant maybe built until its building plans are first been approved by the Commission.

Justice Potter Stewart: Suppose that's true by house thereto, isn't it?

Mr. Alfred I. Hopkins: Yes, it is true.

Justice Potter Stewart: You can't build a house without a building permit.

Mr. Alfred I. Hopkins: My argument will be or I'll make it now that the licensing requirements and this infusion of state activity and to private enterprise would, in my view, be limited to places of public accomodation, places where significant community interests are affected.

I will make the same kind of argument in this regard as counsel yesterday made with regard to the limit to which Shelley and Kraemer should be extended.

I wouldn't suggest that Shelley and Kraemer be extended to the privacy or the intimacy of a home.

I think the Court has the power and certainly has in many other fields of constitutional law limited the scope of certain of its doctrines.

And I suggest that the licensing argument, which I'll use as a -- as a brief label, there's no reason to extend it to the home that it can be limited to places of public accommodation or situations where significant public interests are affected.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: That's right but --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: -- I think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: Mr. Justice Stewart was suggesting, what about all the licensing laws, building permit laws, that sort of things.

Justice Potter Stewart: The zoning law.

Mr. Alfred I. Hopkins: Zoning laws, of course.

Justice Potter Stewart: Inspection laws as to plumbing and electricity and else --

Mr. Alfred I. Hopkins: Yes, sir.

Justice Potter Stewart: I presume they have in Florida.

They do in -- also in our jurisdiction.

Mr. Alfred I. Hopkins: Yes, sir.

But as I say that'd be -- I would limit the application of the argument or not extend it to situations of actual privacy.

But I'd like to elaborate a little more on the statute to indicate its scope and indicate the extent to which the State has involved itself in licensing restaurants.

They regulate fire escapes, exits, plumbing, ventilation, all the various safety precautions.

They provide that no employee maybe employed unless he has a health certificate.

The regulations, which were adopted by the Commission pursuant to the statute, go into minute detail down to how much detergent must be put in a deep sink to properly cleanse pots and pans, so much for safety and health.

But the statute doesn't seem to stop there, in fact, it doesn't stop there.

Statute talks about the welfare of the people.

Interestingly, in Section 509.032 on page 7 of the appendix says, "The Commissioner shall be responsible for ascertaining that no establishment licensed by this Commission shall engage in any misleading advertising or unethical practices, as defined by this chapter and all of the laws now enforced to which may hereafter be enacted.

Similar to that provision is another provision on page 23 of the appendix that a license may be revoked that gambling is carried on from the premises.

In addition, the regulations provide for achievement rating cards, which are to be posted on the premises.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: It's a big card that has points given for their compliance with various health and safety provisions.

I could show the Court example of it.

Justice Hugo L. Black: Does your argument base still on diverging the regulation of a business, on activity by the State to be treated for constitutional purposes, so as the way it worked, actual state operation of that, doesn't it?

Mr. Alfred I. Hopkins: That would be my argument, Your Honor, and I would base it upon --

Justice Hugo L. Black: Well, there are certain regulations with reference to the home.

Any of those that you mention are with reference to the home.

I -- I have difficulty in distinguishing constitutionally speaking between one private -- one ownership by a person and another ownership by a person.

Mr. Alfred I. Hopkins: Let me, if I may, go back to the case of Public Utilities Commission versus Pollak and that was the case of the radios playing in the buses and three cars here in District of Columbia.

The Court, in the first part of its opinion, stated that the capital transit system, because of its regulation by the Public Utilities Commission, in placing these radios and acting in the way it did, act in the governmental capacity, and that First Amendment rights or obligations were brought in to play.

The Court said that there wasn't a mere fact that there was a franchise granted.

The Court stated that this was a -- an enterprise regulated by a state agency.

The Court went on to say that it deemed as particular significant the fact that the transit company went to the Public Utilities Commission to get a ruling on this particular service, the radios.

Here, I think, if we had gone to the Florida Hotel Commission for our ruling, we would've gotten the same answer necessarily as we've got from the Florida Supreme Court, namely that restaurant owners may discriminate.

But the important thing about the Pollak case, it seems to me, as the Court has said that a regulated enterprise where it acts in a field of significant public importance, public transportation, takes on characteristics of state action, for there is, to use the language of the Burton case, they had interdependence between the State and the -- the private enterprise.

A similar case was Baldwin against Morgan, a Fifth Circuit case which dealt with the terminal building in Birmingham, a railroad terminal building.

And that Fifth Circuit made the same kind of approach that here was a public -- here was a facility serving a public need regulated by the city.

And with this interdependence, they could not discriminate against Negroes in the seating facilities.

I would suggest that if Capital Transit Company or some other public street railway system were to institute (Inaudible) setup on its streetcars that that would be unconstitutional.

I suggest --

Justice Potter Stewart: Both of those cases I suggest there maybe a difference, two differences.

First, you're dealing with a monopoly, a regulated monopoly.

And secondly, you're dealing with instrumentalities of commerce, isn't it true?

Mr. Alfred I. Hopkins: To beat the monopoly situation, the Court said in Pollak that the fact it had a franchise, presumably it was given monopolistic powers was unimportant.

But even if the Court should consider it important, then it would seem that the monopoly situation would -- would lead to an absurd result.

If you say that a monopoly, because it's a monopoly, cannot discriminate but 100 or 1500 restaurants, because they're not monopoly, can discriminate, then you get a very strange result.

Justice Potter Stewart: My guess is only this that if you have a -- only one mass transportation monopoly, then this is the only way people can ride, who -- who need to use a mass transportation.

If you have 1500 or 2000 restaurants in -- in Dade County, Florida presumably some of them will choose to serve only White people, some of them may choose to serve only Negro customers, some may chose to serve both.

Mr. Alfred I. Hopkins: But where the need is there, the need can be as great and significant to the Negro who wants to eat at Shell's City or some other variety store or department store as the need for an equally important service or commodity as transportation.

I don't see that food in the middle of a day when you're hungry is any less important than transportation, and the fact that there is only one enterprise that provides the commodity, should in my mind, will make the constitutional difference.

You need -- you have to have hundreds of restaurants in the community.

One transportation system can serve the purpose.

That is essentially the argument as to the licensing problem.

Justice Hugo L. Black: Your argument boils down, as I understand it, to this that since restaurants are licensed in the sense that people need to buy food and so forth, you leave them to private ownership, but the government has just as much tried to regulate them as it would have if the government were exercising governmental authority, as some nations do, to own all the property and decide how people should use it and presume they are the associates.

Mr. Alfred I. Hopkins: They are -- they are already regulated in a -- in a great sense.

Justice Hugo L. Black: That's right.

They are regulated, but your -- you would strike down the distinction as I understand it on that argument.

Mr. Alfred I. Hopkins: I'm not sure --

Justice Hugo L. Black: You said the mere fact that they were regulated gives the government the right to do these other things, if you say, when it wouldn't have if they were not regulated.

Mr. Alfred I. Hopkins: I think it's the scope of the regulation, which is vast here in this case, because they -- the addition to what I've mentioned, the government can come in.

It has visitation powers.

It can inspect.

Justice Hugo L. Black: Well, they can do that in any hotel or motel, doesn't it?

Mr. Alfred I. Hopkins: They can but I suggest that what's --

Justice Hugo L. Black: Suppose a man was living in it -- many people live in hotels and motels but it's just as thoroughly regulated as the other, would they have to -- could they -- could it be held that the Constitution, I'm not talking about legislation, could it be held that the Constitution itself compels them to accept people into their hotel rooms they don't want or for whatever reason?

Mr. Alfred I. Hopkins: I think when the State has gone this far and indicated this much of a concern and this much of a need for the State in adopting this kind of a -- a comprehensive licensing statute that we have a situation which is analogues to the Burton problem, Burton versus the Wilmington Parking Authority.

The city needed that restaurant otherwise its parking a lot financing would have been in great jeopardy.

Justice Hugo L. Black: Which one was that?

Mr. Alfred I. Hopkins: Burton versus the Wilmington Parking Authority.

Justice Hugo L. Black: Who owned that property?

Mr. Alfred I. Hopkins: The property was owned by the city.

But I don't think that's the only distinction.

I think it's a question of a public need or the public being dependent upon this particular facility.

It was particular --

Justice Hugo L. Black: Did the Court put it on that ground?

Mr. Alfred I. Hopkins: No, sir.

I -- I submit that the two can be related that the Court talked in terms of the extent, the nonobvious ways in which the State has become involved in the private enterprise that agreed to which one is interdependent upon the other, a kind of partnership if you will.

Justice Hugo L. Black: But one of the differences seems to me to be greater than the one as we have adopted in this nation.

Rightly or wrongly, some people think one and some another most think likely consistent with private ownership of property and wouldn't -- you -- you would obliterate that where the government regulates it at all, would you not?

Mr. Alfred I. Hopkins: Only where there is a significant community interest at stake.

I don't believe it's necessary to extend the rule, extend the doctrine to private situations.

I think the Court can deal with this --

Justice Hugo L. Black: If you refer to private, you always ignore the private, what we call, the private ownership is ownership by somebody other than the government.

That's what it meant by private system, isn't it?

Mr. Alfred I. Hopkins: Right.

At that point, I can bring up Marsh versus Alabama which was private --

Justice Hugo L. Black: Marsh versus Alabama has many other phase and connections and your situation does not.

Mr. Alfred I. Hopkins: Capital Transit Company was a --

Justice Hugo L. Black: I may refer to it if you still think so.

Mr. Alfred I. Hopkins: The Capital Transit Company I -- was, I assume, a private enterprise, yet in its operation in this particular respect, it took on characteristics of a governmental activity.

The Court went to great pains to -- to go into that.

Justice Hugo L. Black: Of course, the government could go so far when it would be a governmental activity, where despite terms and contracts and paper writing, the government was actually doing it and purported to put it in somebody else's hand.

I agree with that.

Is that the argument you're making now?

Mr. Alfred I. Hopkins: My argument is that this -- this degree of -- of interdependence, you use the word as --

Justice Hugo L. Black: That's been reached here.

Mr. Alfred I. Hopkins: That's been reached here.

I think there's a matter of constitutional adjudication that this would not pose an impossible job for the Court in drawing lines.

And the classic example would be the state regulation of interstate commerce.

How much is too much?

When does the burden become undue?

It's a difficult paradoxical problem every time that problem arises, but the Court needs it and I believe the Court can read it in this kind of situation.

At same approach, juridical approach in the field of public accommodations.

With regard to a licensing law, I think it should be applied with regard to the Shelley and Kraemer doctrine, which I haven't had time to talk about here this morning, but I adapt the same views as my colleagues from the N.A.A.C.P. that we don't have to get that far that we get into the club or the private home.

That we deal with the scope of the indignity, the scope of the indignity and the humiliation visited upon a great, massive heart of our public, Negro citizen and -- indignity, a humiliation which is visited upon them everyday in every community in they sell, in hundreds of restaurants and in hotels, if you will.

I think it's that the scope of the problem should indicate where a line might be drawn today.

In Burton versus Wilmington Parking Authority, the Court indicated that there was a problem of examining the facts of each case and the multitude of facts that existed in the Burton case led to a conclusion of state action.

I suggest that the multitude of involvement of the State and of the restaurants and of the community at large and of the nation, if you will, require a finding of significant state action in this case substantial enough to bring the action within the proscription of the Fourteenth Amendment.

And I don't believe that hypothetical situations of a home need concerns.

Thank you.

Chief Justice Earl Warren: Mr. Georgieff.

Argument of George R. Georgieff

Mr. George R. Georgieff: Mr. Chief Justice and may it please the Court.

I think by the time this day is over, you will have had quite enough of these cases being so similar, so I'll be very limited in my reply.

First, I'd like to clear away several things.

Basically, I agree with the statement of the facts that gave rise to the action that you are about to review here, with several exceptions.

First, you'll find nothing in this record to indicate that Shell's City restaurant was licensed by any political subdivision of the State of Florida.

There's not a trace of it anywhere.

You will also find that Sergeant's --

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: No, but we are not free to assume that it was, sir.

Justice Arthur J. Goldberg: But then the logical presumption would be that people can (Inaudible)?

Mr. George R. Georgieff: I agree that that would be a logical presumption but in any case, we are confronted with the records that we have here.

It would have been a simple matter to establish that they were or weren't.

Justice Arthur J. Goldberg: Does that admission (Inaudible)

Mr. George R. Georgieff: I beg your pardon?

Justice Arthur J. Goldberg: Does that admission (Inaudible) because of the licensing facts?

Mr. George R. Georgieff: No, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: It's a fact therein the case just as are the situations brought up by counsel here.

Justice Arthur J. Goldberg: I don't follow, and if you say (Inaudible) licensing.

Mr. George R. Georgieff: I can't say that since I don't know, sir.

Justice Arthur J. Goldberg: You don't say that it's (Inaudible) will apply.

Mr. George R. Georgieff: I will say this.

I assume that they were and if they do apply and I'm sure they do, chances are Shell's City was a licensed establishment.

Now --

Justice Arthur J. Goldberg: So, then that was (Inaudible)?

Mr. George R. Georgieff: I assume it was, sir.

Sergeant Suggs, when he went around the tables with Mr. McKelvey and Mr. Williams, both are whom were vice presidents and one a manager of the restaurant, after these people were asked to leave by Mr. McKelvey at each table, Sergeant Suggs asked them or suggested that they should leave before anything else follow.

When they declined, it was then that he arrested them for the commission of this act that resulted in the criminal action being brought against them.

So in that respect, it's somewhat similar to the case that you heard yesterday in which the police declined to do anything and required the individual to go down and make his complaint before the magistrate's court.

Now, there has been a question raised here about whether customs of a community should form the basis for your conclusion that this amounts to a state action here.

And if it does, you should then turnaround and condemn what's happened in Florida in this case.

Now, I think that there's a fair reason why you can't equate customs to state action in this case.

You can impose your sanctions against the people of Dade County if they feel that they preferred generally not to associate in restaurants with a Negro, the White people that is.

Now, I do not, for one moment, suggest that either Mr. McKelvey or Mr. Williams, whoever it happened to be, are free to determine for this Court what the general belief, feeling, or custom is in Dade County.

There are over a million people in Metropolitan Dade County right now.

I hesitate to think that Mr. Williams is qualified to pass on this.

But even if he is, you could only impose sanctions based upon this custom if the government of Dade County or Florida or the City of Miami were to abdicate any duty that it had under your Constitution and our own for that matter based upon this custom.

If they had found, because of what people believe or thought that they wouldn't dare to turnaround and arrest anybody for failing to serve a Negro, and if that became their policy, then I would expect that you would strike it down, based upon the custom as developed by the acts or failure of the act of the law enforcement or the government of the state.

Justice Arthur J. Goldberg: Now supposed you establish (Inaudible), supposed you establish that the (Inaudible), but the restaurants are (Inaudible).

Now the second question is this, recognizing the custom that can serve the (Inaudible) shall be required to serve the -- can't be required.

Do you think that would be a valid question?

Mr. George R. Georgieff: No, sir.

Justice Arthur J. Goldberg: Now let's supposed the establishment changed, (Inaudible) which shall include the (Inaudible) of color people, what about that?

Mr. George R. Georgieff: It's a little different.

Justice Arthur J. Goldberg: What's different?

(Inaudible)

Mr. George R. Georgieff: I'm -- I'm on tenterhooks Mr. Justice -- Mr. Justice Goldberg.

You see, when you add the affirmative mention of a class of people or a creed, take your pick, it doesn't matter, then you begin to evidence by your legislative act, some opinion, some official opinion to which you can direct a complaint.

Justice Arthur J. Goldberg: But you then would have to (Inaudible) --

Mr. George R. Georgieff: More nearly --

Justice Arthur J. Goldberg: -- (Inaudible) would be invalid.

Mr. George R. Georgieff: -- more nearly invalid than valid, if you make that mention.

Justice Arthur J. Goldberg: (Inaudible), supposed that you note the (Inaudible), but you apply this generally to (Inaudible)

Mr. George R. Georgieff: Yes, sir.

What was your question with that illustration?

Justice Arthur J. Goldberg: What would be the practical fact (Inaudible)?

Mr. George R. Georgieff: No, sir.

Justice Arthur J. Goldberg: (Inaudible) by law or a custom (Inaudible)

Mr. George R. Georgieff: It is not in my view, sir.

Justice Arthur J. Goldberg: And why?

Mr. George R. Georgieff: I'll tell you why, sir.

If we do away with 509.141 and wipe it off the books, you're nevertheless confronted either with common law trespass or the statute that we have which is I think 832.01 or 823, I'm not certain which.

Justice Arthur J. Goldberg: Common law justice, criminal justice (Inaudible)

Mr. George R. Georgieff: Yes, sir.

Now, in those cases, an owner of private property exercises whatever he pleases as his reason to evict someone from his premises.

If you leave it to him --

Justice Arthur J. Goldberg: (Inaudible) are you saying that these men could be indicted, or common law (Inaudible)?

Mr. George R. Georgieff: Well, no, sir.

I'll tell you why indictments invariably are returned only in capital cases in Florida.

Justice Arthur J. Goldberg: (Inaudible) convictions brought in the appearance common law justice.

Mr. George R. Georgieff: Yes, sir.

Justice Arthur J. Goldberg: Pardon me?

Mr. George R. Georgieff: I -- I'm sorry.

I said yes, sir.

Justice Arthur J. Goldberg: You agree?

Mr. George R. Georgieff: Yes, sir.

Now, assuming that that is so and it is, if you allow a man who has a farm, a home, take your pick, whatever it is, he has some private property.

If you allow him to determine who he shall have on his premises and if he shall have him and for how long and for any reason, then does it matter that you take a section and create it and you codify that, which you already have extended him as, let's say, your majesty of the law, so that he doesn't have to take it into his own hands, I fail to see any difference.

I -- I agree that depending upon how you approach it.

If you go backwards from your illustrations, you might come to the conclusion that if it doesn't make any difference, since custom is the basis for as you'd reach that but basically, we go forward from poor beginnings to more sophisticated ones.

And if we say to the people who own business establishments, if you feel -- and who is better qualified knowing his clientele that the continued presence of someone here is going to be offensive to your business and will prove detrimental, and you allow to an ordinary citizen in his home, I don't see any difference between the two.

It's one that you extend as a matter of right and law for many years, centuries perhaps, and now one that you simply draw forth in specific terms in relation to business establishments.

I don't know sir that that answers your question but I hope it does.

Now, I'd like to advert to Marsh versus Alabama.

That seems to be one in which there was almost to complete abdication, the people were denied the right to voice their expressions as guaranteed by the First Amendment.

Now, I don't know what the philosophy of this Court was when you said what you did in Marsh.

But I imagine that part of it might have been a real fear that if you didn't reverse Marsh, that it would be a simple matter for the states to turn overall their communities to private individuals to sell them and they would rule them as they like, like company towns.

Now, if that is real, it might be a reason I don't know.

But I -- I would like to dwell on Shelley as the basis for the request on the part of these appellants that you should implement what you did there in this case.

Now, there's been so much written about Shelley versus Kraemer that I suppose that one can speak of it, but many case, I know the one thing that you did not say about Shelley.

You did not say that the person who sold to Shelley had to sell to him.

All you did say was once Shelley earned the lawful right to title to that property, it was not proper, under the Constitution of the United States, for the State of Missouri to deprive him of the right to the enjoyment of that property.

Now, he had earned it by a free sale, by the party who had owned it, and he merely sought to enjoy that right.

If these people who came into Shell's City's restaurant had been successful in securing services from the management --

Justice Hugo L. Black: Did they have a contract with him?

Mr. George R. Georgieff: I beg your pardon sir?

Justice Hugo L. Black: Did they have a contract with him?

Mr. George R. Georgieff: They had nothing, sir.

Now, had they been able to secure services from him in exchange for their money, you would have the situation that you do in Kraemer.

If he sold them the food and then said, "Well, now, look, wait a minute, you can't eat this food in here.

Take it out, but you can't eat it in here because we don't allow that based upon custom."

Then you'd have the comparable situation that's reflected in Shelley.

But you don't have that here.

All you have is somebody who says, "I want a guarantee not only that I can contract but that when I do, it will be as I wish it to be."

Justice Arthur J. Goldberg: Well, under your statute it's authorized the restaurant owner that after he sold the food (Inaudible)?

Mr. George R. Georgieff: Yes, sir, if something occurs.

Justice Arthur J. Goldberg: You are (Inaudible) in his mind thinks detrimental to the system in his opinion --

Mr. George R. Georgieff: If he puts --

Justice Arthur J. Goldberg: -- would the statute authorize to (Inaudible)?

Mr. George R. Georgieff: Well, sir, I'm at a loss now.

We don't have any decision which explains this statute.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: Well, there are some who say it would.

I -- I'm not certain that it would.

I assume that the most I could say in honesty, not departing from my position or doing harm to those who did -- to that and the appellants is that if he were to put the people back in the position that they were before they came in, that is to say gave them back their money and there were a genuine basis upon which he could conclude that there were detrimental, I'd take it that that is possible under the statute.

Justice Arthur J. Goldberg: Does that apply now to the (Inaudible) given that your statute (Inaudible)?

Mr. George R. Georgieff: I should assume so.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: That's not our defense.

It was never raised to a point that was raised at any stage of the proceedings in this case, Your Honor.

Justice Arthur J. Goldberg: What would you think?

Mr. George R. Georgieff: What would I think?

You would have to demonstrate, I suppose.

Well, as a matter of fact, I dare say that by the provisions of the statute, the very statute, assuming that it's correctly quoted here, I don't have any reason to believe it isn't, if the -- if you leave it to management, as you do in ordinary cases of trespass, there is no way.

How do you explain to somebody who does not want you in his home that you belong there?

You don't.

Justice Arthur J. Goldberg: So, you're not.

Mr. George R. Georgieff: That's right.

And based upon --

Justice Arthur J. Goldberg: Consider you are (Inaudible).

Mr. George R. Georgieff: We do that everyday in an ordinary trespass, sir.

That results in criminal action.

It doesn't always but it may.

Justice Arthur J. Goldberg: I don't follow it here.

You said that in the legal criminal action of trespass, you can (Inaudible), get out, and that would make this (Inaudible) as the trespass charge.

Here that is not the case (Inaudible).

Mr. George R. Georgieff: Is that not the basis of the private owners order to get out.

His own opinion that he doesn't want him there.

Justice Arthur J. Goldberg: (Voice Overlap) --

Mr. George R. Georgieff: I don't mean to question, Your Honor, don't misunderstand, but I don't see how we can separate the two.

Isn't it opinion that generates an order to leave however arbitrary?

Justice Potter Stewart: The basis is not the "get out".

The basis was the refusal to leave after being told to get out, isn't it?

Mr. George R. Georgieff: Of course, it is.

No question about it and it is in 823 as well.

You become a trespasser after the notice --

Justice Potter Stewart: Right and I --

Mr. George R. Georgieff: -- as opposed to one who simply enters on a property.

Justice Potter Stewart: I suppose a -- a -- I suppose it's conceivable that in a defense for -- to a trespass charge, you could say, "He didn't tell me to get out," or -- or while he said it, "You really didn't mean it," which is at least possible.

Mr. George R. Georgieff: Perhaps it is, Your Honor.

Now, as I say, putting these two side-by-side, you simply have an open legislative announcement as to one where there is to the other, it's been something that's developed over the years.

Now, if I, both as the private homeowner and as a restaurant operator, decide as to the same person, one, that I don't want him in my house once he's in there, and I'll tell him to leave, and that I no longer want him in my restaurant and I tell him to leave, I fail to see the difference.

Now, if there is, perhaps, I can go further toward answering your question, Mr. Justice Goldberg, but I just don't see that there is any difference.

Justice Arthur J. Goldberg: Well, suppose (Inaudible).

Then the question your legislature comes with when it enacted the statute is to find specifically if it deals with an interference (Inaudible).

Then my question is how do (Inaudible) and charged by showing the amount of (Inaudible).

Then it could be said that the (Inaudible).

Is this not where you apply (Inaudible) not just undesirable and unlawful?

(Inaudible) to find why a person must be accused (Inaudible), he could be only made or it could be (Inaudible).

Mr. George R. Georgieff: Well, I don't think so, sir.

Justice Hugo L. Black: How did your court read it?

Mr. George R. Georgieff: I beg your pardon, sir?

Justice Hugo L. Black: How did the court read it?

Mr. George R. Georgieff: They didn't read it all.

They simply said that on its face, it was valid.

They didn't enter into that area.

Justice Hugo L. Black: They didn't enter into discussion at any stage?

Mr. George R. Georgieff: No, sir.

Now --

Justice Byron R. White: (Inaudible)

Mr. George R. Georgieff: They did, sir.

In as much as there was no question as to evidence, they stated, and I think you'll find in their opinion that's in the -- in the appendix that since the only point raised was the validity of 509.141 that they concluded that on its face, it was totally color blind and perforce constitutional.

Now, of course, I don't know what went into their deliberations but they did not discuss the matters that are brought up here.

Now, if I may, Mr. Justice Goldberg --

Justice John M. Harlan: But then we have to take the statute, the construction of the statute's meaning that your court, the Florida court and not a state law, has said that this statute means that an owner can exclude somebody for any reason that he wants to.

Mr. George R. Georgieff: That's correct, sir.

Justice John M. Harlan: And we're bound by that construction, aren't we?

Mr. George R. Georgieff: I'd like to think you were.

If I may, Mr. Justice Goldberg, in answer to your question, it is by nature -- by the nature of the property that the statute breaks down into four sections.

And in the fourth, when you get to the section which says, "And any other person".

Now, I would assume that in ordinary circumstances wherever you might be that these enumerated areas or acts or situations would probably provide a valid basis for anybody to act in defense of themselves, their property, etcetera.

Now, when you get to the other, the area where it's left to the individual, it is because it is private property that they have to extend in some latitude if the only reasons you could were for those enumerated, while there wouldn't be enough paper in the world to write out all the reasons.

You have got to leave something to an individual as you do in ordinary trespass, as you do in the -- in other situations.

If you do not, then you wind up in a hopeless mirage.

You either -- you either enumerate beyond belief or you leave it totally without mention.

Now, I don't pretend to know why they bothered to say it the way they did in the legislature, but I assume that they had a valid reason.

And so far, of course, it hasn't been changed except by an insubstantial alteration by the '61 Legislature.

But it seems to me that if you don't allow some latitude for an individual to determine what, in his view, is going to be detrimental, even if it'd be this, however vague you may consider it to be, then there isn't anything that you can give him.

If he isn't drunk, if he isn't brawling, if he isn't offensive or abusive, then theoretically, you can't put him out even if you are offended by it and even if you do know that it will be detrimental.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: Well --

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: I understand that there are parts of it which are quite broad.

I don't know how much -- how specific we could be and still have anything that is workable.

Justice Arthur J. Goldberg: This was construed by your Supreme Court in the last phase other than in this case?

Mr. George R. Georgieff: No, sir, and then only on its face.

There has been no construction of it as such.

I might add though that these individuals, whatever we may personally think about the conduct that resulted.

One thing they knew for certain, they were neither of the enumerated things because I don't think there's any doubt about that.

The fact is that they went there planning to do this very thing which is apart from what we're discussing here.

But now a question of whether this is a state action.

There has been the hue and cry raised that they were informed against by the office of the State Attorney, that they were sentenced by a judge of the criminal court of record, that the District Court of Appeal acted on it, that the Florida Supreme Court acted on it, and that the Attorney General is now a part of it.

Well, by law, we're required to be.

Any criminal action in the State of Florida as is probably true in most of the jurisdictions including the District of Columbia are brought by some prosecuting arm of the Executive Branch.

I fail to see how this type of action makes it state action.

I further fail to see how Sergeant Suggs, when he arrested after a refusal to leave in the face of this legislation, was doing anything but what he was required to do as a part of his duties as a law enforcement official.

Now, if he is given the ability, the duty, the responsibility, the choice to decide whether a given act is or isn't, then we don't need this Court or any other court, because if our police officers can decide what is a crime, then we don't need any courts.

And before too much longer, if they become proficient at it, we won't need laws.

But the point is, the legislation as it exists, at least until you have had a chance to review it and pass upon it, is valid.

And we've got to presume that if you refuse to leave after you've been asked, in accordance with the statute, and this was in the presence of the police officer who asked them and even suggested that they leave before he arrested them, then have committed those acts which, if they result in a conviction, constitute the misdemeanor of which they ultimately were found guilty by the trier of fact.

Now, custom is one thing, police action is another.

Any crime that is committed results in some type of prosecution, I would hope.

Now, admittedly, there are times when choices are made as to which way to go but that is not done by a law enforcement, that's done by a prosecution and/or the court which is the proper place for it to repose.

But it's idle to say that because all of these circumstances which led to the case finding its way here, that becomes state action.

The state did not advocate anything.

They have a statute which simply says that these people are going to be allowed to exercise the right over their property.

And therefore, anybody who flies into the face of this request, after it's been made in accordance therewith, is guilty if the -- if it results in the trial in the finding of guilt.

Now, there was a reluctance yesterday on the part of some people to enter into the question of whether this approaches religion, I am not so reluctant, I don't seen how you can avoid it.

Let us assume, if you will, that in a given ceremony in a Jewish Synagogue, you have four Catholics come in carrying crucifixes, who sit themselves in the front row.

This is an open and public indicia of a difference of creed, which is offensive to the Jewish populace and to the rabbi.

What can he do?

Well, I suppose he could ask them to leave, but if they decline, what could he do?

Could he force them to leave?

Ask them or rather force them to get out?

Could he call the police?

I think he should be free to.

Now, the difference between creed and color means absolutely nothing if you look at the constitution that assures that they are guarantees.

And yet, here, we don't have anything different, not in the slightest.

If you say to me that these people cannot be discriminated against by private citizens who hold themselves out to serve the public, I say to you that there isn't any reason why the rabbi should be permitted to call upon law enforcement.

Justice William O. Douglas: Of course, you have to have the First Amendment right up to now, the right to run a business as you use, it hasn't been excluded within the First Amendment.

Mr. George R. Georgieff: No, that is true, sir.

Well, it isn't all as I would have it, if you understand.

I -- I realize that.

And yet, it seems to me that when you get to the area of the differences between creed, condition of servitude, color, and so on, I can't bring myself to believe that we can effectively separate it when it suits us and bind it when it doesn't.

Now, let's take the situation --

Justice Hugo L. Black: I thought the defense argued yesterday that this did violate the rules of -- did violate their rights under the First Amendment, that they had a right to go into the store, stay there whether they wanted to go or stay or not in orders that they might advocate their views about their opposition to segregation.

Mr. George R. Georgieff: I think they have that right, yes, sir.

Justice Hugo L. Black: I thought that argument was there?

Mr. George R. Georgieff: I was out for some time.

It's possible I missed it, Mr. Justice Black, but I think that they do have that right.

Justice Hugo L. Black: Do they have the right to go to a --

Mr. George R. Georgieff: I think you've said that many times over.

Justice Hugo L. Black: Do they have the right -- that gets down to this question.

Do you have the right to speak under the First Amendment, do you also have the right to go to a place where there's a valid law, assuming its valid, but you can't go to interfere with somebody else to exercising the right of free speech?

Do you have the right to go (Inaudible) or you must do it somewhere else?

Mr. George R. Georgieff: Well, sir, let me put it this way.

You have -- they have the right to go into the Shell's City's Restaurant but once they were -- once the management determined that they no longer wanted them in there, they did not have the right to remain.

Justice Hugo L. Black: Well, that's what I'm talking about.

Mr. George R. Georgieff: That is correct, sir.

Justice Hugo L. Black: They have no right to be at a place.

Mr. George R. Georgieff: No, sir.

Justice Hugo L. Black: Does the First Amendment guarantees that people shall go to places where, under the law, they could not otherwise go on the ground that they've got to be allowed to advocate their views, wherever they please, whenever they please, and however they please?

Mr. George R. Georgieff: Not in my view, sir.

To the licensing provisions that I might add, which I didn't mean to implement by saying that they weren't -- there wasn't any evidence that there was a license in this case.

But I have set out in my brief the fact that automobiles are probably the most licensed thing in the State and probably, in most States.

Now, I'd like someone to tell me why it becomes different when you apply it to an automobile if you're going to use that as the criteria.

Now, again, like I say, we can't separate it when it suits us for our argument and then bind it together when it doesn't.

If you're going to say that licensing requirements form a satisfactory basis on which you should conclude that there is sufficient state control to make it state action, then I submit that every car that's driven in the State of Florida drives as a result of state action.

Every home that's occupied by anybody -- we've got a homestead exemption law that says that if I become a literal popper, they fall on every depth, that they could do everything they'd like to me but they can't take my home from me.

Now, that's a recognition by the State that they're going to ensure my castle to me.

Now, if they go that far, which is even further than what they've don here by a longshot, does it not follow that they have a right to tell me who and who I shall not have in my home or that anybody may come in and it suits his fancy.

Now, I'll agree and there's a similarity.

I think we'll all agree that someone has a right to come to my door and ask of me what he will.

I may either reply or tell him to go on about his business just as in Shell's City here.

They came upon the premises, sought to do business with these people, they were declined the right to do so and they were asked to leave.

Not at all different from what I might do in my home or you or anybody else.

Now, if we extend that on the theory of the licensing requirements, then I submit that there is no end to it.

You can go on at infinity.

Now, I don't pose a threat to you, that's foolish, I wouldn't suggest that these things are going to happen tomorrow or the next day or any day after that.

But if you're going to put it within the legal framework that they say you should use as one of the basis then I say, don't separate it as to the others which you know will be there one day.

I --

Justice Arthur J. Goldberg: (Inaudible) this record that's filed in about the government's (Inaudible).

Mr. George R. Georgieff: They were not told why but the statute contemplates that they needn't to be told why.

It wholly requires that if management had the opinion, that's all that's necessary.

Now, I hasten to add, if Your Honor please, that the -- the point raised by brief of amicus is one which is totally foreign to this case.

Justice Arthur J. Goldberg: Do the same (Inaudible)

Mr. George R. Georgieff: Well, I was reserving some time, but if -- if you like I can add --

Justice Arthur J. Goldberg: (Inaudible) time that suits you.

Mr. George R. Georgieff: No, but based upon the positions which has been presented by counsel for the appellants here and the total nonapplicability of Shelley and certainly not even (Inaudible) which gives the people the right to contract under the Court of Appeals' decision.

It seems to me that unless you're ready to determine that an ordinary citizen in the pursuit of his rights -- now, he doesn't have property rights, he has personal rights to handle his property the way it suits him, unless you're ready to determine, and determine that these rights shall no longer be his own, and unless you are ready to upset the civil rights cases, I think that your only result can be that you affirm the action of the Florida Supreme Court and deny this appeal.