BARR v. CITY OF COLUMBIA

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Argument of Matthew J. Perry

Chief Justice Earl Warren: Number 9, Charles F. Barr et al., Petitioners, versus City of Columbia.

Mr. Perry, you may proceed with your argument.

Mr. Matthew J. Perry: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Supreme Court of the State of South Carolina.

The case arose in March, 1960 at which time the sit-in movement or the movement which brings these cases before the Court at this time, was perhaps at its highest stage.

One day before this case arose, some of the petitioners in this case went to the Office of the City Manager of the City of Columbia to discuss matters pertaining to the efforts of Negroes to use lunch counter facilities in the City of Columbia and at that conference, the record shows that the City Manager of the City of Columbia advised some of these petitioners, gentlemen, further demonstrations will not be tolerated.

At that particular time, the -- most of the stores, drugstores and other stores which had lunch counters in the City of Columbia followed the policy of excluding Negroes or of segregating them therein.

A few days before March 15, 1960, police officers working for the City of Columbia and other officers of the South Carolina Law Enforcement Division working in cooperation with the City Police of the City of Columbia, learned that Negroes would make an effort to gain food service at the Taylor Street Pharmacy located in the City of Columbia.

Agent Carl Stokes of the South Carolina Law Enforcement Division testified that he and other officers advised the management of Taylor Street Pharmacy that Negroes were coming.

They had some meeting among themselves and worked out a plan whereby the action which was thereafter taken was formulated.

This plan was that among other things, that officers would be placed in the premises of the Taylor Street Pharmacy.

On March 15, 1960, Agent Carl Stokes of the South Carolina Law Enforcement Division and the Deputy Sheriff were on duty in the Taylor Street Pharmacy premises.

They've been waiting there throughout the morning, up until the time the five petitioners here appeared.

When the petitioners entered the store, they walked in quietly and some of them stopped near the front of the store to purchase some cards.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: Well, they might have known it, Mr. Justice Goldberg.

The -- the Solicitor General's argument on the vagueness of the statute here might still have merit because of course, the statute did not give these petitioners any warning.

They -- they may have known but the statute didn't.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: They were told this officially by the City Manager of the City of Columbia.

However, petitioner, David Carter testified at the trial that he did not know he would not be served and that in fact he went there to be served.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: I would say that he was expressing some optimism, sir.

[Laughter]

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: After some of the petitioners stopped to buy postcards or other cards, they then started walking to the rear of the store.

Now here, perhaps I should state the lay-out of the store.

The Taylor Street Pharmacy is a very large drugstore in the City of Columbia.

In fact, it is described by its manager as a department store.

It also has a restaurant which is located near the rear or at the rear of the store premises.

The petitioners started walking back there and Agent Carl Stokes together with the Deputy Sheriff followed them in close pursuit because this was the kind of thing that Agent Stokes and the Deputy Sheriff were waiting for and as the petitioners went into the restaurant area, some of them -- all of them took seats at different points.

The manager of the store came into the lunchroom area and stationed himself at a point where he felt his voice could be heard by all and stated that the Negroes would not be served and that they would have to leave.

At this time, Agent Stokes was standing right by the manager there in close proximity to him and after the -- the store manager had made his statement and petitioners did not move, Agent Stokes leaned over and said to the manager, "Now, you go over and tell each one of them in person or -- or directly to leave in my presence."

Acting in response to the request of the -- the police officer, Mr. Terry, the manager went over to each of the petitioners, all except one of them and told them that they would have to leave, with that is with Agent Stokes still following in close pursuit.

Chief Justice Earl Warren: Agent Stokes was a policeman?

Mr. Matthew J. Perry: Yes, sir.

Agent Stokes was an officer of the South Carolina Law Enforcement Division.

After --

Justice Potter Stewart: That's a lot -- does that mean the state police?

That's a long way, right?

Mr. Matthew J. Perry: That is correct, sir.

The South Carolina Law Enforcement Division is the official police force of the State of South Carolina.

Justice William J. Brennan: We ran into that I think in Edward (Voice Overlap) --

Mr. Matthew J. Perry: That is correct in Edward versus South Carolina.

After the manager had directed the Negroes to leave, he then left the area of the lunch counter or the restaurant.

One of the petitioners sought to have some words with him on the way out but the manager said, "I have nothing further to say" and kept leaving the place.

At this point then, Agent Stokes and the Deputy Sheriff took over completely with petitioners still occupying their seats in the same manner which had characterized their conduct before the manager left.

And at that -- at this point, Mr. Stokes, the -- the SLED Agent stated to the petitioners, "Now, I am a State Officer and I am saying to you, you will have to leave."

Justice Potter Stewart: At this point, assuming – assuming, putting aside your -- your constitutional argument, at this point an offense had been committed, had it not?

Mr. Matthew J. Perry: I --

Justice Potter Stewart: Putting aside the -- the vagueness arguments and your constitutional argument, but at this point, it was appropriate that -- it's what I'm suggesting that the law enforcement officers take -- takeover because an offense had been committed under the state law.

Mr. Matthew J. Perry: Well, in our view, the -- no offense at that time had been committed because the petitioners had done nothing --

Justice Potter Stewart: Except stay there after they've been told to leave.

Mr. Matthew J. Perry: That is correct and the only reason for the request which was made to them to leave was because they're Negroes.

Justice Potter Stewart: Well, as I say, I -- I'm putting to one side, the constitutional argument as a matter of state law, an offense had been then committed after they've stayed there, after been -- being told to leave, had it not?

Mr. Matthew J. Perry: An offense which has been -- has been defined by South Carolina to constitute an offense.

Justice Potter Stewart: Exactly.

Mr. Matthew J. Perry: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: That is correct, Mr. Justice Goldberg.

We did, however, contend that the petitioners were -- were pursuing their constitutional right of freedom of speech and expression.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: Yes, sir.

Justice Arthur J. Goldberg: But on the vagueness point (Inaudible)

Mr. Matthew J. Perry: That is correct.

Justice William J. Brennan: It was not raised.

Mr. Matthew J. Perry: It was not specifically raised that the -- at the trial except to the extent that it might have been raised in the -- the contention that petitioners were exercising right of freedom of speech.

Justice William J. Brennan: Well, wasn't it argued (Inaudible)

Mr. Matthew J. Perry: Not specifically.

When -- when Agent Stokes said to the petitioners, "Alright, now, I'm a police officer and you will have to leave," petitioners kept their seats.

He there upon placed them under arrest and told them to follow me at which time all of the petitioners followed Agent Stokes out of the store and got into his police car.

Now, these petitioners were thereupon charged in warrants issued by the City of Columbia with trespass under Section 16-386 of the South Carolina Code of Laws for 1952 at that time, and I might say parenthetically that since that time, South Carolina has re-codified under that 1962 Code and the 19 -– the Section to which we refer as Section 16-386 under the 1952 Code is now codified by the same numerical number in the 1962 Code.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: There is no change made.

It's copied verbatim.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: That is correct, however, shortly after these cases reached the Court in March 1960, South Carolina enacted a new statute which was before this Court last year in Peterson versus City of Greenville, now codified as Section 16-388.

Petitioners were also charged with breach of peace under a statute which is set-off in the record of these proceedings as Section 16-509.

Justice John M. Harlan: Where do you find that statute?

Mr. Matthew J. Perry: It's set forth in petitioners' brief at page 3.

I beg you pardon.

I have misstated the numerical Section, Section 15-909.

This is the first time that particular statute had been invoked.

The Court will recall that we were here in Edwards versus South Carolina, at which time the Court convicted petitioners of the common law offense of breach of peace, but throughout these proceedings, the -- the convictions of petitioners here have been referred to as violations of the particular section to which we refer.

Petitioners were tried in the Municipal Court of the City of Columbia known as the Recorder's Court and were found guilty of the crimes of trespass and the breach of peace.

The Richland County Court affirmed as did the South Carolina Supreme Court later rejecting petitioners' claims that their constitutional rights have been violated and rejecting further petitioners' claim that the evidence presented against them did not support the charge made on the ground that the exceptions which petitioners made were said to have been too general.

However, this was the first time in these series of cases that the Court had invoked such a rule and in fact in other cases decided about the same time ruled upon exceptions, identical to those which were framed in this case.

Justice Potter Stewart: The convictions under both statues were affirmed (Inaudible) both --

Mr. Matthew J. Perry: Yes, sir.

Justice Potter Stewart: (Voice Overlap)

Mr. Matthew J. Perry: That's right.

Justice Potter Stewart: And breach of peace?

Mr. Matthew J. Perry: And breach of peace.

Justice Potter Stewart: Disorderly conduct?

Mr. Matthew J. Perry: That is correct.

The statue is entitled disorderly conduct --

Justice Potter Stewart: Disorderly conduct.

Mr. Matthew J. Perry: -- but it includes a multitude of offenses --

Justice Potter Stewart: I see it, yeah.

Mr. Matthew J. Perry: -- including breach of peace.

Justice Potter Stewart: And all of these petitioners were convicted under both.

Mr. Matthew J. Perry: That is correct.

Justice Potter Stewart: And convictions under both were affirmed (Voice Overlap) --

Mr. Matthew J. Perry: Were affirmed, yes sir.

Justice Potter Stewart: And were concurrent or consecutive sentences imposed or (Voice Overlap)

Mr. Matthew J. Perry: Consecutive sentences were --- were imposed in these cases with $24.50 of each sentence being suspended.

We do not know what brought about the particular formula the Court used except that it represented some arbitrary concept on the part of the Court.

This case then involves, we think a very clear cut illustration of the use of state power to enforce racial segregation.

The police in this case came into the matter before petitioners ever went upon the premises of Taylor Street Pharmacy.

They warned the manager in fact that Negroes were coming.

Justice Potter Stewart: Played so the rule (Inaudible) the redcoats are coming or --?

Mr. Matthew J. Perry: Yes, sir.

Justice Potter Stewart: That's all -- that's all the record shows just -- just that Negroes are coming.

Mr. Matthew J. Perry: That is correct and they also counseled to the manager in the method in which the criminal offense was to be charged and the evidence secured in order -- in order to later go to court and prosecute because --

Justice Potter Stewart: I missed that.

I'm sorry.

Mr. Matthew J. Perry: Alright sir.

Agent Carl Stokes testified that he stood next to the manager and after the manger told the petitioners, "I -- I will not serve you, you will have to leave," the agent carrying the full colloquy of South Carolina power stood next to the manager and said to him, "Now, you go and tell each one of these petitioners, each one of these -- these persons, he will have to leave in my presence."

Justice Potter Stewart: Stokes was this so-called SLED man?

Mr. Matthew J. Perry: That is correct and the Deputy Sheriff also was on the premises and standing close by.

Justice Potter Stewart: Did he say anything, did say anything?

Mr. Matthew J. Perry: The record does not show that the Deputy Sheriff said anything.

I believe that -- that respect and deference was given to the agent from the official police force in the State of South Carolina.

I think Agent Stokes outranked the Deputy Sheriff and the record indicates that he did most of the active cooperation with the management in this case.

The record also showed that he counseled with him before the Negroes came, while the Negroes were upon premises and then in fact arrested the petitioners without having been requested to do so by the manager.

Justice Potter Stewart: Well, how significant is (Inaudible)

Mr. Matthew J. Perry: Well, I think that it is significant for the purpose of illustrating to this Court, the extent to which the -- the power of the State was -- was used as a matter of state law, but the thing what happened here --

Justice Potter Stewart: Remembering my Brother Goldberg's question in the previous case, right, as to whether or not if the duty of the police officer to arrest somebody simply because he's requested to do so and the answer is obviously no in any State but certainly the other side of the coin is that -- that it is a duty of the police officer to arrest somebody if a misdemeanor is committed in his presence regardless of whether or not he's requested to do so, isn't that true?

Mr. Matthew J. Perry: Well, that may be true sir.

I submit to the Court that where, as here, the -- the State had no statute specifically prohibiting this conduct, the City of Columbia had no ordinance specifically prohibiting it as well as the case in Peterson versus Greenville, the state officer requested and demanded that petitioners leave.

There -- he thereby, made up a crime for them to they have to remain and when they refuse to immediately leave, the power of the state further went into operation by carrying forth an arrest which was not requested by the manager and we submit that this is important for the purpose of illustrating the extent of the -- the full power abused by the police.

Justice John M. Harlan: But what you're saying in effect is that this record shows that the State was there not to enforce property rights but to enforce segregation.

That's --

Mr. Matthew J. Perry: Precisely.

Justice John M. Harlan: -- what you're really saying?

Mr. Matthew J. Perry: That is precisely our opposition sir.

Justice John M. Harlan: Now, implicit at least in these -- these records and these cases come up in various skimpy ways, implicit in this – wouldn't you think it was fair to say that the state court at least, rightly or wrongly found to the contrary.

In other words, it recognized that the state could not do what you're claiming, it did.

Mr. Matthew J. Perry: The state court recognized the right on the part of management --

Justice John M. Harlan: To exclude.

Mr. Matthew J. Perry: -- to exclude --

Justice John M. Harlan: Right.

Mr. Matthew J. Perry: -- Negroes and thereby declared a state law of policy which we feel violates petitioners' rights to both equal protection and due process.

Justice John M. Harlan: Or, little off at least I was trying to say, you're -- you're making a specific statement that because of the advance notice of this, of the police of Stokes who was -- the Stokes that Negroes are coming to the restaurant and his action on the premises in arresting without -- without requesting the owner and other things you've said all add up to something that indicates that state was really enforcing segregation here rather than enforcing the trespass law.

Mr. Matthew J. Perry: Yes sir, precisely, precisely.

Justice John M. Harlan: My question here --

Mr. Matthew J. Perry: And I think that when we examine that against the -- the background of statutes in South Carolina which specifically require racial segregation and the custom which these statutes seemed to have generated.

Justice John M. Harlan: Yes, but you're getting off again and my Brother said because I'm -- I'm dealing with a particular thing because as far as I'm concern, if you can demonstrate what you show, you're entitled to a (Inaudible) of this case because I can't see in the record yet, that's what I'm --

Mr. Matthew J. Perry: Well sir, I think that that it's in the record right from the beginning of the first warning that Agent Stokes and other officers conveyed to the manager that Negroes were coming.

I think it's also apparent in the record when Agent Stokes and the Deputy Sheriff went on duty on the store premises.

I think it is also apparent that when petitioners were entering the restaurant, Agent Stokes and the Deputy Sheriff followed them in close pursuit, this being their primary purpose on the premises.

I think it is --

Justice Arthur J. Goldberg: (Inaudible) they have a duty in the record clearly that they have (Inaudible) between the police and the restaurant owner of what can be done.

They have a duty (Inaudible) that in order for us to execute the policy of (Inaudible) this testimony that Mr. Stokes who had advised this in the owner, the manager (Inaudible).

Mr. Matthew J. Perry: I think Mr. Justice Goldberg if you will go back to the first one or the two statements are made which appears in the testimony of petitioner, David Carter.

Prior to the entry and to the Taylor Street Drugstore premises, these young men had been and to see the City Manager and he had said to them, "Gentlemen, further demonstrations will not be tolerated."

I believe we have to begin there to see exactly where the -- the statement on the part of the police of the City of Columbia came from and where the full power of the government of South Carolina came from.

Chief Justice Earl Warren: We'll recess now Mr. --

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Argument of David W. Robinson Ii

Mr. David W. Robinson Ii: May it please the Court.

We have an agreement with counsel that petitioners will argue in Number 10 and then we will reply in both 9 and 10 if that meets with the Court's approval.

Argument of Constance Baker Motley

Ms Constance Baker Motley: Mr. Chief Justice, and may it please the Court.

Before this Court for review upon the granting of a writ of certiorari is the judgment of the Supreme Court of South Carolina affirming the convictions of petitioners for trespass.

That law, Section 16-386, by its terms makes it a misdemeanor to enter upon the lands of another after notice from the owner or tenant prohibiting such entry.

The Negro petitioners in this case are Columbia, South Carolina college students, who were arrested on March 16th, 1960 when they went into Eckerds Drug Store, a large multi-department chain store, the only department of which -- which is restricted to whites is the lunch counter.

The petitioner seated themselves in a booth in the lunch counter and the owner asked them to leave and the police officer asked them to leave and after a few minutes hesitation, one got up, the other was attempting to get up and he was pulled up by the police officer, and they were arrested.

Petitioners were tried in the Recorder's Court in the City of Columbia without a jury on March 25th, 1960.

They were convicted of trespass and sentenced to pay a fine of $100, $24.50 of which was suspended or 30 days in jail.

Their convictions were affirmed by the Richmond County Court Criminal Division and by the Supreme Court of South Carolina.

Throughout the state court proceedings, petitioners claimed that their arrest and convictions violated rights secured to them by the Due Process and Equal Protection Clauses for the Fourteenth Amendment to the Federal Constitution.

Petitioners urged that their convictions amounted to state enforcement of private racial segregation to the use of the state's judicial machinery to enforce such discrimination in a public place where -- where petitioners have been invited to trade and where they had the right to be and that this action singled them out for different treatment by the state solely because of their race and color.

These contentions were summarily overruled by the Supreme Court of South Carolina on the ground that similar contentions have been rejected by it in a similar case, City of Greenville against Peterson, which was reversed here last term on other ground.

Upon this review, petitioners contend first that their rights have been violated because here, the state's criminal law enforcement and judicial machinery were employed to sanction and enforce private racial discrimination in a place open to the public.

Every member of the public could go into this place and every white member of the public could sit at the lunch counter.

Secondly, petitioners claim that their rights have been violated because the state is involved in this act of racial discrimination, because it's an act performed by the manager of Eckerds Drug Store in obedience to a community wide custom of racial segregation in public-eating places, which custom in turn is dictated in part by a state law and massively supported and encouraged by a network of corresponding state laws clearly defining that state's long pursued policy of enforcing racial segregation.

Not only in the public life of the state, but in private affairs as well.

Thirdly, petitioners claim that their rights have been violated because, contrary to the command of the Fourteenth Amendment that no state shall deny equal protection of the laws, South Carolina has denied the same by a regime of laws, which fails to furnish such protection to petitioners by subordinating petitioner's claim to equality in the public facilities of the community to a narrow and technical property claim, which is no more than an assertion of their right to deny equal treatment to Negroes in one department of a store open to any member of the white public.

Now, the gravamen of this case was put before the arresting officer in a single question, which appears on page 17 of the record.

The arresting officer was the Assistant Chief of Police and he was asked this, "Chief, isn't it a fact that the only reason you are called in from the police department to arrest these two persons was because they were Negroes who are asking for service in the food department of Eckerds store.

And the manager was directing them out because they were Negroes, isn't that correct?"

And the chief answered, "Why, certainly," I would think that would be the case.

Consequently, there is no question in this case that the policy of Eckerds Drug Store was to permit Negroes to trade in all of the numerous departments of the store except the lunch counter.

At one point, the manager of the drug store testified that he did not refuse to serve petitioners because they were Negroes, that's on page 26, but when he realized that he's previously admitted, an obvious policy would not permit him on the cross examination to evade the crucial issue as to why service was denied, he asserted all stores do the same thing.

It is also clear that the manager's refusal to serve therefore was influenced by community custom, which we claim amounts to unconstitutional state action because dictated in part by state law and supported by a massive state segregation policy.

Constitutionally relevant here, is the fact that this community-wide custom of not serving Negro and white persons together in public-eating places in South Carolina is expressly dictated in part by a state law.

At the turn of the century when public-eating places were largely the concern of people traveling, South Carolina made it a crime to furnish meals to white and colored persons in the same room, at the same table or at the same counter in station restaurants or station eating houses, in times limited by common carriers of such passengers.

And then, in Peterson versus City of Louisville, the case which was here the last term, there was a South Carolina city ordinance in Greenville, which expressly required segregation in restaurants.

In addition --

Justice Potter Stewart: There is no -- there is no contention is there or is there Ms. Motley that -- that that any statute or ordinance directly bore on this situation here?

Ms Constance Baker Motley: No, sir.

Not this statute which I just referred to -- referred to station restaurants and railroad stations.

Justice Potter Stewart: And you said --

Ms Constance Baker Motley: It did not say a lunch counter in a drug store.

Justice Potter Stewart: And that was the term of the century that's (Voice Overlap) --

Ms Constance Baker Motley: That's right.

Well, I'm saying is that this is state policy and this, the custom stemmed or was generated by this state policy expressed in this statute and numerous other state statutes making the action of the owner state action because --

Justice Potter Stewart: But was it --

Ms Constance Baker Motley: -- no infused with the state policy.

Justice Potter Stewart: But there was -- there was no -- if I understand it correctly, there was no statute or ordinance, which compelled the -- this restaurant -- this store proprietor to do as he did to discriminate.

Ms Constance Baker Motley: That's right.

There was no ordinance or a state statute.

Justice Potter Stewart: Or -- or -- and none which made it an offense for -- for people to eat together, is that right?

Ms Constance Baker Motley: That's right, that's right and then as I've said, this custom which was dictated in part by state law and that it expressed the state's policy with respect to public eating in a certain area was again massively supported and has been for almost a century by South Carolina statutes, which created the segregated society presently existing in that state because the state not only decreed segregation in the public life, and facilities owned and operated by the state but in a facilities owned and operated by private individuals as well.

And as we point out in our brief, during reconstruction, there is historical evidence that Negroes were able to eat in public-eating places in Columbia, South Carolina, the same city involved here and as way as 1895 and 1898, there was opposition in South Carolina to the enactment of racist legislation.

However, it is obvious that the pro-segregation forces prevailed and after a brief, desegregated reconstruction era, the policy of South Carolina changed and became that of segregation of the races as we've said as evidenced by these numerous laws, which requires segregation in such places, in circuses, in traveling shows, steamed ferries, carrier stations, restaurants, textile factory.

In other words, the state extended its policy beyond the public life into private affairs.

Justice William J. Brennan: Well, may I ask Mrs. Motley, your argument in essence is that just as the store owner in Peterson would not be heard to say that he made a private choice, invited the existence of an ordinance expressly requiring segregated eating facility?

Here, the store owner ought not be heard to say he made a private choice against the background (Inaudible) to segregation law?

Ms Constance Baker Motley: That's -- that's right.

Also --

Chief Justice Earl Warren: (Inaudible)

Ms Constance Baker Motley: I didn't get the --

Chief Justice Earl Warren: (Inaudible)

Ms Constance Baker Motley: Oh, yes.

All of these that we've collected on page 28 of our brief I think footnote -- it's page 30 Footnote 11.

We've collected all of the current laws in South Carolina bearing on segregation.

Those require --

Unknown Speaker: (Inaudible)?

Ms Constance Baker Motley: Pardon me?

Unknown Speaker: (Inaudible)

Ms Constance Baker Motley: Yes, sir.

We filed a joint brief in 9, 10 and 12.

Justice William J. Brennan: Would this argument apply in 9 and 12 as well as in 10?

Ms Constance Baker Motley: It applies in -- yes, in 9 and 10, and 12.

Justice William J. Brennan: Now, this may not be the appropriate place to ask it, while I think of it Mrs. Motley, are you also arguing the point that this South Carolina trespass statute does not give fair warning?

Ms Constance Baker Motley: Yes.

We have argued that in our brief and --

Justice William J. Brennan: Did you raise it in the -- I think vagueness (Voice Overlap)

Ms Constance Baker Motley: No, the vagueness was not raised as such in the South Carolina Court.

However, throughout the proceeding, due process was raised and when the case got to the Supreme Court and a petition where -- for rehearing was expressly pointed out that free speech was involved and one of these petitioners Bouie had been convicted of resisting arrest and one of the assignments of error or two of the assignments of error were failure of the state to prove a prima facie case and the failure of the state to prove the corpus delicti which I understand in South Carolina, means the state proved no crime and that was raised and passed on by the Supreme Court of South Carolina and they reversed Bouie's conviction for resisting arrest on the ground that there was no evidence to show that.

So they did pass on the sufficiency of the evidence and so, if here we're saying that there was no evidence to convict the petitioners of the crime defined by the statute.

Justice William J. Brennan: And you think that would embrace the fair warning point?

Ms Constance Baker Motley: Yes, that's right.

Now, also relevant here is I've just mentioned is the fact that there has been no perceptible voluntary change in the state's policy.

The South Carolina announced for example, just in August that it would close its state parks rather than desegregate them as required by a federal court.

In other words, South Carolina is still pursuing and pushing a public policy of segregation and this public policy permeates every aspect of life in South Carolina either by direct legislative file as we've pointed out or by public custom of the nature described here.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Yes.

In this case, I believe that after this case, Negroes were able to eat in this particular drug store.

Some Negroes have been admitted to the state colleges, Clemson College by a court order, however, the University of South Carolina by court order and Negro students were admitted to elementary schools in Charleston, South Carolina in September pursuant to court order.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Yes.

I -- I think that the effect of the state's previous policy would still be there but --

Justice Arthur J. Goldberg: (Inaudible)?

Ms Constance Baker Motley: Well, I think the state would have to certainly at least provide a remedy against such discrimination and the state in every case, thereafter, would have the burden of proving that there was no state power still infecting the private action here and if the state could prove that, then the state exonerates itself.

But I think --

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Well, I -- I would think that they would have to do that before they could start claiming that they were no longer involved here and -- because otherwise, we claim that in everyone of these cases, they would have a heavy burden of proving that this man acted without any relation prior to state's policy in discriminating against a Negro who went into the drug store.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Well, you see the northern states of all past statutes giving us a remedy against such discrimination, and certainly, in that situation, you go in the state court enforce that state law so the state --

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Pardon me.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Well, we will cite 30 statutes, state statutes provi -- prohibiting discrimination and public accommodations.

Now, they don't cover every single public accommodation but there, the state would not have the same heavy burden that South Carolina has of showing that the state's policy is not operating here.

And we say that in all these cases, a state could not be heard to say that its massive policy of segregation had no effect, whatsoever and that it never intended to enforce segregation in this kind of situation.

Justice William J. Brennan: But you go beyond that as I understood your answer to me Mrs. Motley.

Your -- your answer is that no one will be heard to say that the choice was a private choice as long as there exists in this kind of massive body of legislation requirement segregation, wasn't that it?

Ms Constance Baker Motley: Yes, that's right.

Justice William J. Brennan: That was the -- state will be heard to say but rather the private individual will not be heard to say that when he asked Negroes to leave, this was a private choice that he --

Ms Constance Baker Motley: That's right.

That's right.

Justice Hugo L. Black: Do I understand -- maybe I could understand that the Negroes also (Inaudible)

Ms Constance Baker Motley: Well, if in South Carolina, the moral they should repeal all state laws on segregation and the owners just reminisce against us the next day.

We say the state still has the burden of showing that his action was without any reference whatsoever to the state's previous policy or this custom which we claim as was generated and supported by state law.

And we think that the day after the state passed -- repeals all its laws and South Carolina would certainly be too soon for us to say there is no state involvement at all here because the magic of repealing those statutes has wiped out all of the influence which the state policy previously had.

Justice Hugo L. Black: (Inaudible)

Ms Constance Baker Motley: Well, no.

Justice Hugo L. Black: Because the rule, what I have in mind is, is that the rule of law (Inaudible)

Ms Constance Baker Motley: Well -- what were -- would --

Justice Hugo L. Black: What would be the effect here?

They were completely (Inaudible)

Ms Constance Baker Motley: No, no.

You don't have to decide that in this case.

No.

Justice Potter Stewart: Adding something very similar to it is, be -- going to be before us in the next case, Bell against Maryland, isn't it?

Ms Constance Baker Motley: Well, yes.

In Maryland, the state has passed a statute.

The Bell, we say, it's again, too soon for the state to say it was -- its policy did not influenced the owner because as a matter of fact, the owner said, "That's the only reason I'm segregating.

I would love to have you," but the custom is what's operating here and in Maryland, they've had a similar massive segregation policy.

It's only recently that they began to change that policy and we say -- in that case the burden is still on the state to show that that policy has not influenced the choice of the owner and as a matter of fact, in that case, the owner said, "It does.

It's the only thing that influences my choice."

Justice Potter Stewart: How do you suggest that such proof be adduced?

You're suggesting it seems to me that the courts get pretty deeply into the realm of psychology.

Each of us is motivated by a variety of factors inherited environmental.

Each of us is motivated by customs of those of whom he lives.

These are all fairly, fairly settled.

Psychological considerations calling upon a discipline, which does not deal in its amplitude, is that the kind of evidence you think (Voice Overlap) --

Ms Constance Baker Motley: Well, I think the state would have to begin with its laws to -- to point out that these segregation laws, anything having to do with this particular facility, and then repeal by the state are not enforced by the state and the state has gone further and provided a remedy against such discrimination.

And all of these kinds of things I think the state would have to prove and of course, the state will then have to show that this was -- has been many years of the state had any such laws, that it couldn't possibly have had the effect which we claim.

We only ask that the state be charged with the normal and probable consequences of its act as anyone else is.

Justice Potter Stewart: But after all that -- after all that evidence was in and maybe -- maybe the defense could get a psychologist on the stand to say that everybody is motivated by a desire to be respected by its peer groups and so on and that the peer group was a community still, held this deeply and transitive even in subconscious opinions, would that be enough to answer?

Ms Constance Baker Motley: Well, no.

I don't think just a psychologist coming in and saying (Voice Overlap) --

Justice Potter Stewart: Because that's what you're getting into, isn't it?

Ms Constance Baker Motley: Well, I don't think so.

I think that there is so much evidence in this case, for example, the state's policy that we don't have to get into that.

The state has a heavy burden right now in this case with all of these laws which required segregation and I think that it will be a long time before we get involved in that kind of situation in South Carolina where we would have difficulty in proving or the state would have difficulty in proving no state involvement and no effect to the state's policy in this kind of situation.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Yes --

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: -- certainly.

Slaves didn't have the right to go in anything.

The slaves didn't have any rights, which the white men or the state was bound to respect and then during reconstruction as I've pointed out briefly in South Carolina, they did have some rights and then segregation was established as a matter of state law and state policy, and everything became segregated.

Justice Tom C. Clark: Your Footnote -- your Footnote in page 30 seems to indicate that these statutes refers in 1962, is that the reference to certain procedures?

The traveling shows --

Ms Constance Baker Motley: No, that's the codification thing.

Justice Tom C. Clark: They're old statute?

Ms Constance Baker Motley: Oh, yes.

These are old statutes.

Justice Tom C. Clark: But they're all reenacted or re-codified by state of action?

Ms Constance Baker Motley: Yes.

They were all re-codified in 1962 Code as far as I'm -- yes.

Justice Tom C. Clark: There's no statute that prohibits the eating-places themselves from serving.

Ms Constance Baker Motley: No, sir.

Just the one that I referred to, and that's in the 1962 code which prohibits serving Negroes and whites in a -- in a station restaurant, that's still in the code.

Justice William J. Brennan: Was that first enacted in 1962, Mrs. Motley?

Ms Constance Baker Motley: No, sir.

In 1906 I believe, we checked that and the -- you know, it gives the history of the legislation in the code under the statute and it indicates that it was first enacted in 1906, that particular statute.

Justice Tom C. Clark: Well, it was reenacted to those non-extended, at large?

Ms Constance Baker Motley: No, it wasn't.

Justice Byron R. White: Were there -- how long is the Negroes had been admitted at all to the places like this drug store?

Ms Constance Baker Motley: I think right after the suit and -- in the --

Justice Byron R. White: No, I mean to the drug store to -- not to the lunch counter or anything but just to the drug store proper (Voice Overlap) --

Ms Constance Baker Motley: Well, I suppose since the drug store was open, I'm not certain to that.

I think that in all of these situations, the Negroes have always been permitted to buy at all of the counters except the eating counter.

Justice Byron R. White: And there never was a state policy, the segregation in retail establishment generally?

Ms Constance Baker Motley: Well, what happened as a matter of fact is that the facilities in these department stores are segregated like the rest rooms and if they have a lunch counter, it was some time segregated or Negroes excluded all together, but they could buy at the merchandise counters generally without discrimination.

They might have had to wait until all the white customers were waited on, something like that, but the policy in these department stores and drug stores is to segregate only the eating.

This, again, was a part of the custom not to eat with Negroes and as --

Justice Byron R. White: I take it as no specific evidence in the record of any causal connection between the -- the exclusion and the -- and the state policy or custom?

Ms Constance Baker Motley: Yes.

The owner said, "All stores do the same thing."

When we asked him -- oh, when he was asked, "Did you refuse to serve these petitioners because they were Negroes?"

He first said no, and then he said, "Well, all everybody does the same thing," which to me says, this is a custom that what I'm doing is what everybody does.

Justice Byron R. White: But that's the -- that's the extent of the evidence in that regard.

Ms Constance Baker Motley: Yes and of course the other evidence is what this Court can take judicial notice of and that's all of these statutes of South Carolina.

Justice William J. Brennan: Mrs. Motley, of this desegregation of Eckerds, is that the only one that has been desegregated at the lunch counters there

?I think you've told us that presently that lunch counters desegregated.

Ms Constance Baker Motley: I can ask the state, maybe they know of other stores that have been desegregated.

Ms Constance Baker Motley: They have been.

Justice William J. Brennan: Generally in Columbia?

Ms Constance Baker Motley: Yes, sir. Lunch counters.

Justice Tom C. Clark: Was this since 1960?

Ms Constance Baker Motley: Yes, sir.

They limited the lunch counter, as he says not restaurants per se.

I'd like to save the remaining time for rebuttal.

Chief Justice Earl Warren: Mr. Robinson.

Rebuttal of David W. Robinson Ii

Mr. David W. Robinson Ii: Mr. Chief Justice, may it please the Court.

I'm replying in behalf of the City of Columbia in both Numbers 9 and 10 and would request that you consider all of my remarks addressed to both cases except when I specify otherwise.

I would first like to direct the Court's attention to the problems of vagueness and the convictions on the merits in these cases.

It's our position that these cases are not defective for those reasons, for three reasons.

First that petitioners failed to properly raise and present the question of whether they were guilty of trespass at all before the state Supreme Court.

Secondly, that they had actual notice of the owner's policy before they enter these stores, therefore, were guilty under the statutes and thirdly, that the question of whether a construction of refusal to leave after entry, whether that such a construction would be vague was never presented at all to the state Supreme Court.

Justice Potter Stewart: As – how does your third point differ from the first one?

Mr. David W. Robinson Ii: My first point is that -- is that they didn't properly brief and argued whether they were guilty of anything.

The -- the third point is that they didn't raise a question of the constitutionality of the construction that was rendered by the state court.

In connection with the first point, our state Supreme Court has rules that most appellate courts have regarding the exceptions and questions presented which are designed to focus for the Court what the question involved each.

The questions and the exceptions in these cases simply said that the state failed to prove of a prima facie case and to produce a corpus delicti.

There was no spelling out what the error of the trial court was.

In their briefs, which we have attached as an -- as an appendix to our brief, in the Barr case, the petitioners have fully argued the question of state action, but when it came to the question of a conviction on the merits, they simply said that the argument on the question one, which was a state action argument, would simply take care of question two, which was the question whether they're guilty of anything and our Supreme Court refused to raise the question.

They said that under our rules, they have improperly raised it and wouldn't consider.

Now, in the Bouie case --

Justice Potter Stewart: The matter -- as a matter of South Carolina law, has this statute, I' talking now about 16-386, which begins by saying every entry upon the lands of another where any horse, mule, cow, hog or any other livestock is pastured.

Has that been consistently construed to apply the -- the places like drug stores?

Mr. David W. Robinson Ii: There are no cases --

Justice Potter Stewart: Presumably there aren't many horses or cows or --

Mr. David W. Robinson Ii: There were no cases involving drug stores until the Charleston versus Mitchell decision, which was decided by this Court a few days before these cases were decided.

Justice Potter Stewart: -- after these convictions?

Mr. David W. Robinson Ii: After these convictions, that's correct.

Now, there is language in an old 1926 decision, which indicates that a refusal to leave after notice would be a misdemeanor, but that's purely dictum.

That case didn't involve a drugstore.

It didn't involve a refusal to anything.

It was simply a comment by the Court in refusal to leave.

It was simply a court comment that it would be a misdemeanor.

There are no other decisions on it and of course, we --.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: It had been applied mostly in rural area -- in rural type cases, involving farmland.

Quite often, you get the question of where there's been a shooting on -- with question of retrieve as to whether the trespasser had a duty to get off the premises when requested to do so.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: That's correct, that's correct, that's correct.

In the Bouie case, coming back to our point number one, the petitioners did brief fully the question of whether or not Bouie was guilty of resisting arrest, and our Supreme Court reversed on that, but when it came to this matter of where he was guilty -- guilty of trespass again, they simply passed it over, and we submit that the question was not properly presented to our Court.

Now, if you conclude that it was, then it's our position that these people had actual notice before they entered these premises.

Our statute says in part every entry after notice from the owner prohibiting such entry shall be a misdemeanor.

In each of these cases, the petitioners testified they had been in these stores many times previously trading in the other departments.

One petitioner testified that he had bought food at the lunch counter to take out.

Also, these petitioners testified specifically that their purpose, their sole purpose in entering these stores was to be served food or not to buy food to take out or not to use the other departments, and the record as a whole show that their entry into these stores was a demonstration to protest the owner's policy of refusing to serve Negroes.

Justice Hugo L. Black: May I ask you just (Inaudible)

Mr. David W. Robinson Ii: Trespass after notice.

Justice Hugo L. Black: The notice was given to the trespasser?

Mr. David W. Robinson Ii: That's -- that's correct.

Justice Hugo L. Black: What difference does it make then by the time that the act, they knew they didn't want?

I thought the crime was being there or going in as to it's warned not to do so?

Mr. David W. Robinson Ii: Well, it seemed to me that the purpose of requiring a notice is to let him know that he is not warned.

If he already knows --

Justice Hugo L. Black: But the statute doesn't make that a crime, does it, either -- on that basis?

Mr. David W. Robinson Ii: Well but it--

Justice Hugo L. Black: If the crime is, and I would think those elements are necessary that he goes on it as he has been warned not to do so by the owner?

Mr. David W. Robinson Ii: Well, it's -- it's our position that by the owners maintaining of this policy, and by the fact that the petitioners knew of it, this notice had been brought home to them before they entered the premises.

Now, he had (Inaudible) that he --

Justice Hugo L. Black: You mean, his desire that in general, people not (Inaudible) there be to certain group that he might change his mind.

The statute, I must -- I must confess I'm impressed somewhat, by my home state statute like this, does make clearly a crime going on there if he has been warned not to do so.

Supposed he knew all along that they didn't want it but they didn't tell him not to.

Can you stretch that to make it a crime?

Mr. David W. Robinson Ii: Well, that's our position.

Justice Hugo L. Black: That's your argument.

Mr. David W. Robinson Ii: That's what our argument is --

Justice Hugo L. Black: That is the acute issue in that point.

Mr. David W. Robinson Ii: That point, that's correct, sir.

We feel it by his holding store out in this manner for sufficient length of time and these people admittedly know it, too and have testified.

They expected to be arrested, that they had no -- because that's our position.

Justice Potter Stewart: That's your position on the merits if you reach the merits?

Mr. David W. Robinson Ii: That's correct.

Justice Potter Stewart: But your preliminary position is --

Mr. David W. Robinson Ii: That's correct.

Justice Potter Stewart: -- that this was never raised (Inaudible).

Mr. David W. Robinson Ii: Right.

Now, if you conclude that it was raised and my interpretation of the statute is wrong, then you reach this constitutional question of vagueness as to whether this is a refusal to leave after which you must find to be proper entry is -- is unconstitutionally vague.

Justice William J. Brennan: On your -- on your first point, will that make it necessary for us to examine the briefs before your Supreme Court as we had to do in Wright versus Georgia, to decide whether in fact the question had been raised?

Mr. David W. Robinson Ii: We felt you should examine.

Justice William J. Brennan: We'll have to do the same thing?

Mr. David W. Robinson Ii: We think so and we have printed them as appendix in our brief so that you can do so?

Justice William J. Brennan: Yes.

Justice Hugo L. Black: May I ask you this question as to the law?

Mr. David W. Robinson Ii: Yes, sir.

Justice Hugo L. Black: Suppose your Supreme Court decided, considered that question even thought it was not raised, do they have the power to do so?

Mr. David W. Robinson Ii: They have the power.

No question about that.

This a Supreme Court rule which they 99% of time enforce, but as happened in the Bouie case, they have the power to look into it, because in Bouie, on the same exceptions, they did reverse the conviction for resisting arrest and the exceptions were just as vague, but it was argued in the brief and the Court had it before them.

Justice Hugo L. Black: Do you think that makes any difference on whether or not we should consider --

Mr. David W. Robinson Ii: Well --

Justice Hugo L. Black: -- that point even though they had chosen for somebody who's not made clear to refuse to pass on it, although they had (Inaudible) this or under the law.

Mr. David W. Robinson Ii: If -- if you're going to find error on the -- it's the part of the state court, we feel this should be taken in consideration in your decision as to whether to review it.

Now, coming to the question of vagueness, this was raised at all in the briefs, in the exceptions, in the questions, and in particular, we like to call your attention to the petitions for rehearings in our state court.

We have a typical procedure, whereby after the Supreme Court's decision, counsel can file a petition for rehearing.

These were filed in this case.

The rule, if I may read to you in part says, "The petition must be filed stating particular the point supposed to have been overlooked or misapprehended by the court."

Now these petitions were -- for rehearing, were not only filed of course after the decisions in these cases.

They were also filed after the decision in the Charleston against Mitchell, which I believe is pending before you now, in which our Court did so construe the statute to make it a trespass, to refuse to leave.

So the precise -- and counsel were the same in all cases.

So counsel had notice of this case and a petition -- the -- the points raised in the petitions for rehearing which are contained in the record make absolutely no reference to this question of vagueness.

And it's our position that this Court under your decisions is without jurisdiction to reverse for -- on a ground, which whereas was not raised at all, it would be highly improper to do so.

Justice Hugo L. Black: Am I right in (Inaudible) if that is the case, I just got a situation that if we did consider then the other case by the court below, happen to find this but refused to pass it on this because the court did not -- the Supreme Court of South Carolina did not pass on it because for some reasons it didn't want to.

It has an outstanding of decision against one and for the other, on precisely the same ground?

Mr. David W. Robinson Ii: I'm afraid I lost -- I lost Your Honor's question.

Justice Hugo L. Black: If you have a -- as I understand it, you say that there is another case in which your Court waives this rule?

Mr. David W. Robinson Ii: Which I -- well, that case is one of the cases -- it waived it as to the question of resisting arrest, but this was -- this question maybe I -- I -- I think I've been confused.

I have said in -- in my first point is it one properly raised.

Now, I think when you say a case doesn't prove or a state doesn't prove a prima facie case that covers the world.

So in a sense, it was raised and I think under those circumstances, our Court could under its rules go into the matter, but this question of vagueness was not raised at all.

Justice Hugo L. Black: Could they have considered it despite that fact?

Mr. David W. Robinson Ii: Well of course, I assume our Court can consider anything.

Justice Hugo L. Black: But could they have considered it when it was raised later?

Mr. David W. Robinson Ii: I believe -- during the petitions for rehearing, they could.

They could've granted a rehearing and considered them.

Justice Hugo L. Black: And may I ask if they present that question there?

Mr. David W. Robinson Ii: They did not mention it in the petition of rehearing.

Justice Hugo L. Black: Did they present it later on?

As I understand, it's never been presented.

Mr. David W. Robinson Ii: Never been presented until we --

Justice Hugo L. Black: Until we've got here.

Mr. David W. Robinson Ii: -- until we got here.

Justice Hugo L. Black: That is the question.

Mr. David W. Robinson Ii: That's it --

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

Mr. David W. Robinson Ii: That's it.

It was never presented.

I believed it first showed up in a petition for a writ of certiorari.

It was the first time that this came up.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: That -- it was really a companion and in this case, in the Barr case, they said, "We're not going to consider it because the exceptions don't comply with our rules."

In the Bouie case, they did comment in one sentence, I believe in the opinion, that in discussing the resisting arrest question, they said they're obviously guilty of trespass.

Now, whether there was -- their theory was -- was a theory I'm proposing that they had noticed before they went in, or whether it was refusal to enter, it's impossible to tell on the right.

In short, it's our position that under the decisions of this Court, it would be highly improper to -- to rule that the lower court is an error on a ground, which it never had the opportunity to conserve it.

And we submit that that basis of the case should be affirmed.

Chief Justice Earl Warren: (Inaudible) susceptible the interpretation that they must be informed more that the Court (Inaudible), would there be any evidence of any crime in this case pursuant to crime?

Mr. David W. Robinson Ii: If the Court concluded that they had actual notice, then of course they would've been forewarned.

Now, if the Court concluded that that actual notice didn't count.

Chief Justice Earl Warren: Didn't what?

Mr. David W. Robinson Ii: Did not count, I mean, that you couldn't consider that, then you would be faced with the question of whether refusal to leave was -- or that kind of construction was vague, but it's --

Chief Justice Earl Warren: Could there be any -- could there be any evidence of any kind of a crime that we -- if we can prove that you just pass?

Mr. David W. Robinson Ii: Well, they did refuse.

You mean that you -- you say that -- that you will not -- that the only way our statute can be construed is forewarning.

Chief Justice Earl Warren: Right.

Mr. David W. Robinson Ii: Well, the only evidence we have of that is their actual knowledge.

Now, short of that we have none.

Chief Justice Earl Warren: Alright, now we say -- if we were to say that that was not full, is there any evidence in this case at all that prove corpus delicti?

Mr. David W. Robinson Ii: I'm not sure I know what that means, Your Honor.

I (Inaudible)

Chief Justice Earl Warren: (Inaudible)

Mr. David W. Robinson Ii: Yes.

Chief Justice Earl Warren: Is there any -- is there any evidence on here?

Mr. David W. Robinson Ii: None, none.

Chief Justice Earl Warren: Then if we put that interpretation, it would not be issues that may be raised in the trial court that corpus delicti has not been proven --

Mr. David W. Robinson Ii: Not.

Chief Justice Earl Warren: -- (Inaudible) for us?

Mr. David W. Robinson Ii: Not, if they put another interpretation on the state statute.

Of course, they have since construed that statute and I believe their construction is binding on Your Honors.

Chief Justice Earl Warren: What?

Mr. David W. Robinson Ii: In, it's bind --I believe that the state court's construction of the statute that a refusal to leave does violate it if binding upon this Court and in the Charleston case, they did make that decision, which the Charleston case really was a companion case to this.

Justice Tom C. Clark: It's not here though.

Mr. David W. Robinson Ii: It's not.

I understand it's on the way, Your Honor.

I don't know but we're not involved.

It's not here, but you can only make that finding if -- if you were free to interpret the statute, is what I'm trying to say and it's my point that I believe the state court's decision is binding upon this Court as to what the statute meant.

Chief Justice Earl Warren: And that forces us within vagueness.

Mr. David W. Robinson Ii: That's correct and it's our point that that absolutely was not raised, and that the state court should have an opportunity to consider the question before it is held in error in that construction.

Justice Byron R. White: What was the -- what was the other case?

Mr. David W. Robinson Ii: The Charleston against Mitchell, 230 -- 123 S.E.2d 512.

Justice William J. Brennan: When was that decided?

Mr. David W. Robinson Ii: It was decided December 14th, one day before -- one day after Barr and about two months before Bouie.

They were all decided (Inaudible)

Justice Byron R. White: And what did -- what they hold in that case?

Mr. David W. Robinson Ii: The name of it?

Justice Byron R. White: No, what did they hold?

Mr. David W. Robinson Ii: They construed our state statute as making refusal to leave, after warning a crime of trespass.

Justice Byron R. White: And wouldn't you even think that's exactly what they meant in the Bouie?

Mr. David W. Robinson Ii: I think it's possible to conclude that, but the --the record -- the opinion themselves don't say so and if -- if I could--

Justice Byron R. White: But -- but they did say in the Charleston case which went to those alternatives, they were relying on?

Mr. David W. Robinson Ii: That's correct, that's correct, but the point was argued in brief.

I personally went and looked at the briefs and it was briefed and argued in the Charleston case.

They won't raise it.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: Let me say -- to start, there's no evidence in the record, the record itself, and our record indicates to the contrary.

One of these petitioners testified he had eaten in many public places.

Justice Arthur J. Goldberg: What?

Mr. David W. Robinson Ii: He testified he had eaten in many public places.

There was -- the stores themselves would be segregated in all other departments.

Now, in all frankness there was at the time on these cases, most of the lunch counters in Columbia were segregated.

It's my view this has nothing to do with the state.

The state is completely apart.

Let me say it first before I get in to it.

It's my belief that custom makes our law and that under our form of government, the wishes of the people through the vote and through our system determines the state law.

It is not vice versa.

We don't have a situation where the state tells the people what to do.

Under our form of government, we tell the state through our vote and through our choices and it's my belief that custom makes the law and many of these statutes on the book are still there, the -- the eight statutes and most of them -- I think couple on them this Court's held unconstitutional.

There's no question that -- that they're viable, but there are statutes.

Justice Arthur J. Goldberg: Did the custom (Inaudible)?

Mr. David W. Robinson Ii: I think custom proves, it wouldn't work, Your Honor.

I think it had a party.

If I could try to change the focus on these cases a little bit, as to what we're really talking about in the state action aspect of it.

These owners have taken their money and invested their money in a store.

They have -- they're in this business for profit.

They made a judgment that they can serve both races in all departments except the lunch counter and make a profit, but they have found that they cannot make a profit in that lunch counter if they serve both races and so they have chosen to serve the white race and exclude the Negro.

Now, this is -- this is the private owner's decision, no matter what else is said.

He wants profit.

Both of these owners I believe testified that personally he didn't care and I don't think many of them do.

It's strictly a profit motive involved in these things.

Now, the Negro comes along and he is protesting this judgment.

He's not interested in the profit either, but he has a racial point to make and he comes in to the store to protest this decision.

Now, the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: It's derived from the feelings of his customer.

It's --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: I think Your Honor's comment earlier was that, if you go all the way back, it was a source of slavery and a source of the -- the condition of the Negro when he was brought to this country.

He had none of the Western culture or civilization behind him.

His -- his manners, his morals, everything was different and he was -- he was a different person completely from a white person when he first came.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: I'm --well, I'm certainly it is.

There's no -- no question.

It comes from that whole background has started, but when --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: Well --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: I will -- I may have been too broad.

Let me answer you Your Honor this way.

I do not think that the slavery law created the segregation.

I think the condition of the Negro when he came to this country created it.

I think there is some difference.

I believe that he's -- the fact that he was so different in background, culture, morals, sanitation and everything is what accounted for this segregation, whereby the white people did not want to share their every -- all of their everyday lives with him.

Now, I don't -- I don't think that the slavery law is necessarily causing it.

Chief Justice Earl Warren: (Inaudible) consisting on that segregation on -- as effect?

Mr. David W. Robinson Ii: Our state is -- itself is more and more mannered.

Well, first of all let me say in this area, we think the state has never insisted.

Well, it's true that we may admit it -- let me rebut if I may some -- some comments, if the Court please.

We --one Negro went into Clemson this year, in addition to the one ordered in by the courts.

Two neighbors went into the University of South Carolina this year, in addition to the one ordered by the courts.

We are making progress.

Now, this thing will not change overnight, but --

Chief Justice Earl Warren: (Inaudible) by the court order?

Mr. David W. Robinson Ii: They did not, no sir.

Two of them is in the South -- South Carolina -- well, one in the university went in on the court order.

Two more went in.

In the sense, it was a court order in that it was a class action, but there was no specific proceeding brought for those -- those other two.

Same thing was true in Clemson.

It's true that was a class action decision on the books, but there were no separate precedent for that.

Charleston has been ordered, desegregated with respect to the state parks.

Let me add two, that there's a legislative committee going about the state now, holding hearings on the state parks and the unanimous settlement at these hearings has been to keep the parks open and to open them next year.

The Legislature will act on the matter next spring.

It is not foreclosed.

That's what I'm -- I would like this Court to know.

Chief Justice Earl Warren: (Inaudible)

Mr. David W. Robinson Ii: I don't know.

Chief Justice Earl Warren: (Inaudible) be segregated in August 21, 1962.

Mr. David W. Robinson Ii: There were some statements by various politicians, some that we will close, and I think the parks did actually close.

The court order didn't order them integrated until mid-September after the summer season and I think at that time, the parks were closed.

Now, the legislative committee, the problem has don't back -- has been back and the legislative has lapped and the -- this committee is going about the state and from all I have read, the parks are going to be open again next summer because the overwhelming -- someone has been to open by all -- all races to here.

Now, I just want -- don't want the Court to think that the matter -- isn't an end, that we're not state park business, we're not necessary.

Chief Justice Earl Warren: Well, how about some of the other -- some of the other laws that are required to (Inaudible)?

Mr. David W. Robinson Ii: The law itself --

Chief Justice Earl Warren: -- requires the segregation?

Mr. David W. Robinson Ii: I believe that law is still on the books.

Yes sir, I think this Ms. Motley is correct in her statement at all.

Chief Justice Earl Warren: For instance in changing that.

Mr. David W. Robinson Ii: There is usually segregation in, for instance in change, yes to me knowledge.

Chief Justice Earl Warren: We have a law (Inaudible)

Mr. David W. Robinson Ii: That -- that's correct and I believed it's followed.

Yes, sir I think --

Justice Potter Stewart: Do you know if any state where there's not segregation in penal institution?

Mr. David W. Robinson Ii: I'm not really qualified to say, Your Honor.

I don't want to --

Chief Justice Earl Warren: Do you know if any -- any others or a state law is required (Inaudible)?

Mr. David W. Robinson Ii: I -- I do not know.

I do not -- I just don't know.

I'm not really familiar with it.

Chief Justice Earl Warren: How about state Farriers, they required segregation.

Mr. David W. Robinson Ii: I don't believe we have any state Farriers left Your Honor but I'm not sure.

I can't think of any off hand.

Chief Justice Earl Warren: Are there any parks (Inaudible) that is required in 62?

How about any counter (Inaudible) restaurants is put into place?

Mr. David W. Robinson Ii: I believed that statute is on the books but I believe this Court has declared as un -- not necessarily, the statute but the purposeful that it stands of unconstitutional, we do have immigration in our carrier stations and statute is following them.

Justice Tom C. Clark: Do they have it in the restaurants?

Mr. David W. Robinson Ii: Most of the restaurants in Columbia are still segregated.

There are demonstrations taking place there now, which began about month so ago, up until that time, we have had none.

The lunch counters, most of which were the big chain stores like Eckerds is a chain store, did desegregate over year and a half ago.

The Taylor Street Pharmacy and the Barr case went out of business.

They shutdown lunch counter altogether and put up vending machines, which served coffee and so on.

They no longer have a lunch counter.

Coming back if I may to the point where these demonstrators or petitioners entered the store in protest of the management's policy.

They asked to be served a cup of coffee on one hand.

The management persisted in his policy of serving only one race.

That is a discriminatory act.

At that point, the discrimination has occurred.

Now, we respectfully submit that there has been absolutely no state action to that point.

In fact, the state is not in the picture.

It's simply a private individual who refuses service.

Now, the problem comes when these -- these people are asked to leave and really the management pulls out another right altogether when he asked these people to leave.

He pulls out a property right and that is the right to determine the people on his premises.

Now, it can be argued that the reason he asked them to leave was because they were Negroes, but I submit to you the real reason he asked them to leave was because he wasn't going to serve, which is the act of discrimination earlier.

In other words, it's like a -- a boy who wants to buy cigarettes and the owner refuses to sell it to him because he's too young.

And then the boy stands there, well the owner finally says, "Leave the premises."

He's not saying leave because the boy is too young for cigarettes, he's saying leave because he's not on the business with him anymore.

It's the same as the owner requesting any unwanted customer to leave and this is the property and at this point --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: No, no.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: That's -- but -- but the decision to refuse service it -- and he could seat them until doomsday and we've got to constitutional problem before the court.

The real problem comes when because he's not going to refuse to -- because he's not going to feed him, he then says leave and that is -- he's -- he's telling to leave like he would any unwanted customer and he's really in a -- in a different standing at that time.

Now when -- when the Negro refuses, he's -- he's now a trespasser as to that owner and under the law of our state, the owner has a choice of either using self help which he can do in our state or of calling the police and in these cases, the owner chose to call the police and we get a constitutional question.

Let me ask you now, what is the state's interest in those trespassers?

Chief Justice Earl Warren: Let me point out to you something (Inaudible) the police came into the (Inaudible), but only having the state to impose the Deputy Sheriff in the store (Inaudible) and then comes the manager, (Inaudible), he said that the police came and (Inaudible) states action before these people into the store?

Mr. David W. Robinson Ii: I don't believe it's state action of constitutional, no, if I may explain.

Chief Justice Earl Warren: (Inaudible)

Mr. David W. Robinson Ii: No, sir I don't think so.

There have been prior demonstrations in the store.

The evidence shows that.

The Bouie case, which was Eckerds, took place on a Monday and Simon Bouie testified -- now there was -- the police testified that Simon Bouie, when arrested clapped his hands and commented, "I wonder how many they'll get tomorrow" and that tomorrow was a Taylor Street Pharmacy case.

Now, how the police found out for sure that they were coming to the Taylor Street Pharmacy, I don't know, but the police notified the manager who had had a demonstration in his store the week before and knew what it amounted to and it was simply a question of the police being there anytime knowing when they would come.

I don't believe that alone, it puts the -- the state into the picture.

It would mean simply that if you know a crime is going to be committed, you got to let it be committed and not have an officer there to prevent it.

Chief Justice Earl Warren: How does the state knows that the crime has committed?

Mr. David W. Robinson Ii: Because of the past history of what happened on Monday --

Chief Justice Earl Warren: At that particular store --

Mr. David W. Robinson Ii: In another store.

Chief Justice Earl Warren: In another store.

Mr. David W. Robinson Ii: And an earlier case in this store.

Chief Justice Earl Warren: Did they presume?

Did they presume that that is to be the rule in every store and (Inaudible) any store?

Bouie and every store and that if any Negroes go to any store that (Inaudible)?

Mr. David W. Robinson Ii: No, sir.

I think that this manager in the Taylor Street case had made it clear, what his preferences were and these were demonstration, Your Honor.

I think this Court can take judicial notice of --

Chief Justice Earl Warren: I presume the manager said the police came and informed him of the demonstration, and we were working as a group.

Mr. David W. Robinson Ii: I think that -- that -- what he means there is he told -- he didn't ask the police to arrest these people.

We don't -- we can't say -- the record won't sustain it.

What he told the police is, "I want them out."

And they were working to a group in the sense that he and the police had agreed that after he told him to leave, if they did not leave, the police would then arrest them.

I think that is that fact.

Chief Justice Earl Warren: This is all -- this is all before the police has ever came (Voice Overlap) --

Mr. David W. Robinson Ii: That's correct, but both the police and the management had had experience with these demonstration.

Chief Justice Earl Warren: And were working as a group to prevent them from coming in and demand their constitutional right?

Mr. David W. Robinson Ii: I think that's -- they were working as a group to remove them from the premises if they refuse to leave when requested.

I don't think there's any question about it, but I think the decision, and as I would like to explain, the decision to -- to exclude was not that of the police.

The decision itself was made by the proprietor to refuse them to come in.

Now, he turns to the police.

Under our law, he could've told the police to get out and he could have used self-help to run these people off, but he chose the police.

Now, the police came, and I think it's interesting to see -- it's important to see what the state's interest in a trespasser is.

One of the state's interest is this property right and it's true that property can be regulated and it's true that public property can be more regulated.

What the primary interest of the state and a trespasser we submit is keeping the peace, because if the owner goes to self-help, a breach of the peace will occur, at least a breach in the layman sense is going to be bias and the state's interest in enforcing a trespass law, is to prevent the necessity for the owner having to go to self- help and to keep the peace and those interests have nothing to do with racial discrimination.

And we submit that when the state comes in, in these cases, the discrimination has occurred and they are simply enforcing the criminal law, which itself is color blind and applies to all in removing these people from the premises.

If you hold otherwise, the effect is going to be, it seems to me to say that the Fourteenth Amendment prohibits -- permits one to violate the criminal law of the state without being prosecuted if at the time he's violating that law he is being racially discriminated against by another private individual, which we submit has never been the law until now.

Justice Hugo L. Black: (Inaudible)

Mr. David W. Robinson Ii: Yes sir, excuse me.

Justice Hugo L. Black: (Inaudible) you are -- you say that the -- the law of South Carolina at the time this occurred, but then a restaurant to serve people or did not.

Mr. David W. Robinson Ii: It did --

Justice Hugo L. Black: I'm not talking about legally or unconstitutional, was that alone --

Mr. David W. Robinson Ii: No, sir.

Justice Hugo L. Black: -- on the books?

Mr. David W. Robinson Ii: No, sir.

Justice Hugo L. Black: At that time?

Mr. David W. Robinson Ii: No, sir.

Justice Hugo L. Black: That required -- made it a criminal offense or imposed any kind of duty on this restaurant owner who refused from serving these people?

Mr. David W. Robinson Ii: No, Your Honor.

The only law on the books that is even in the same field is this statute talking about carriers, railway terminals, restaurants.

There is a statute cited in the footnote in the petitioner's brief, which deals with restaurants in public carrier facilities.

There is no statute on the books in South Carolina with regard to private eating establishment.

Justice Hugo L. Black: You -- is it, could it arguably be made that the owner couldn't be required to try to distinguish between a restaurant that was in -- part of the carrier that others was not?

In other words, how did he know that he wasn't violating that law if he let them into?

Mr. David W. Robinson Ii: Well --

Justice Hugo L. Black: And I presume that if the law did bar it, state law, you would say he is (Inaudible)

Mr. David W. Robinson Ii: Oh, certainly, if the law itself would unconstitutional -- I mean (Voice Overlap) --

Justice Hugo L. Black: But even if it's unconstitutional which is on the book?

Mr. David W. Robinson Ii: Well, that the law itself -- in the law, I haven't -- I frankly haven't examined it, but from the title of it, I'm sure that it's limited to eating facilities and place, and determine, for carriers.

It had nothing to do with lunch counters in private stores I believe.

Now, I'd be frank with Your Honor, I have not reviewed that statute.

I felt it was completely irrelevant to this case.

If there was no way to tell from the statute where it applied, it would be probably unconstitutional and vague too, but there were no -- there were no ordinances, there were no statutes other than that one that applied.

Justice Hugo L. Black: But what you said in Peterson that -- that I recall it?

We would not try to get in to the middle ages of the person who know whether he was prompted by the law or was not and I presume that by the fact conversely I may say the future go, but -- about the middle ages, but if you did have a statute there, which on it face made it illegal or crime to serve white and colored people together in some kinds of restaurants, do you think it would be a -- an unfair about following or (Inaudible) to say that that was enough to come to it?

Mr. David W. Robinson Ii: My answer would be that in Peterson, your -- your ordinance was clearly and applicable to the restaurant in question and here, I believe the statute is not and it seems to me that -- that your finding should only be such where it's clear, that the owner was subject to the statute and had no choice.

Justice Hugo L. Black: A lawyer could read it of course and to say that it doesn't cover.

Mr. David W. Robinson Ii: That's the problem -- I can't argue with that, Your Honor.

Justice Tom C. Clark: I understand that they had admitted that they didn't carry this particular (Inaudible)

Mr. David W. Robinson Ii: I believe they did.

Justice Tom C. Clark: It says the customs of these other massive statutes created a custom among the people that caused this restaurant owner to hesitate to not to serve, is that right?

Mr. David W. Robinson Ii: I believe that's what they said.

Justice Tom C. Clark: Well, in the long and -- the long and short that the people has (Inaudible) that it holding was, is as long as the state had law, which forbad letting them to be together in places, would you say the same present -- particularly at the same time?

As long as it did that, we wouldn't go and look to see whether the owner did it because he thought he had to or because he wanted to.

Mr. David W. Robinson Ii: That's correct.

Justice Hugo L. Black: And you say that this statute such that we should not pass in that same kind of responsibility on the state under writ.

Mr. David W. Robinson Ii: That's correct.

Yes, sir.

That's our position.

Let me, if I may in fact suggest another distinction that has been that -- that has been suggested for Shelley.

It's our position that Shelley does not control your decision in this case and that it is distinguishable on a little bit different ground than has been suggested had you done.

It is our view that the question of what -- what is state action and what is not is determined by -- determined by whether or not the state makes the effective decision to discriminate.

Now in the Shelley case, the Negro had taken title to his property.

He had legal title to the land in question.

No private individual by rightful conduct could deprive him of that title.

That title was vested in the state law and no one could take it away from him except the state and the state was faced with a question of taking that Negro's property away from him because he was a Negro and enforcing a covenant or not enforcing a covenant and letting the Negro keep his property and when the state decided to take the course which was racially discriminatory, it was an effective part of the decision to discriminate.

Now in this case, the decision to discriminate was made by the private proprietor himself.

The state, we submit, had no part in that decision.

The state, but -- neither is a state enforcing that decision because the proprietor had the right through his own self-help to remove these people, because the state's interest in keeping the peace with such that it intervened to remove these people, thus, we submit make it an effective part of the decision.

In other words that if the owner had had no right to self-help, then, we may have a situation where the state is becoming an effective part of the decision in moving them out, but where the owner has that right and the state's own interest is solely out of keeping the peace, we submit the state is not a party to the discriminatory decision and this we will submit --

Chief Justice Earl Warren: (Inaudible) if the owner of the property sell more than he had more than he owned?

Mr. David W. Robinson Ii: He couldn't convey legal title more than he owned, I don't believe that.

Chief Justice Earl Warren: Now, he -- he had a limitation of his right and the limitation of this covenant.

Mr. David W. Robinson Ii: Well, it was only valid if sustained by the state court that that covenant was only valid if the state sustained them and led its way in depriving this Negro of his property, which his neighbors couldn't come in forcibly and take his title.

It had to be done by the state.

Our situation, the proprietor can under the previous decisions of this Court refuse that service and can under state law evict this trespasser by self-help.

We submit the state's participation in solely that to keep the peace, to keep the party from falling into a fight.

Get him out of the restaurant, and the state is not a party to the discriminatory decision.

I think there is a difference.

That's all suggestion of a difference, you might consider in addition to those, which were urged on you this morning.

Justice Hugo L. Black: Whose contract was violated in the Shelley v. Kraemer?

And when was the contract made?

Mr. David W. Robinson Ii: I believe that the contract involved prior owners was made by prior owners of the property in question.

Of course, it was a contractual.

Justice Hugo L. Black: What has -- what has happened in the meantime, during the four years period?

Mr. David W. Robinson Ii: I believe the property had changed hands several times as I recall, Your Honor.

Justice Hugo L. Black: Was anything in those new deeds over the years that -- that contained this covenant?

Mr. David W. Robinson Ii: I don't recall in the record indicating any -- anything on that either way.

Justice Hugo L. Black: But you had there whether it's significant or not?

While it's an old contract made many years before (Inaudible), it did and I assume you did at that time, it could (Inaudible), what should be done in 40 years here?

Mr. David W. Robinson Ii: That's precisely correct.

Justice Hugo L. Black: And determining what could be done to a land with somebody else's home.

It may not be significant, but it's tied into a pretty significant part of this country's history in regards to the ownership of land.

Justice Tom C. Clark: As a matter of fact, the owner, the seller across to here, had the right to refuse to sell, does he not?

Mr. David W. Robinson Ii: Yes, sir and this is some of --.

Justice Tom C. Clark: He elected to sell the contract to the old covenant.

Mr. David W. Robinson Ii: This -- this is -- this is our position that we in this case, the proprietor has got the right to refuse to serve.

It's -- that is where -- that's our case is what we submit here.

That's right.

In conclusion, it's -- it's our position that -- that there has been no state participation in the decision.

The state's interest is solely that of the peace and if you hold of that interest itself is --is prohibited state action, then I believe you're -- you're turning these proprietors loose on a self-help situation.

They are in the middle.

They are in this business for profit.

I think that's quite often overlooked and they are bound by the wishes of the public, by the customers and of course, no decree of this Court will change that view overnight.

The -- the -- the proprietor himself quite frequently has no -- doesn't care, but he's in this thing to make money.

That is the problem he had.

We thank you for your time.