COLTEN v. KENTUCKY

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Argument of Alvin L. Goldman

Chief Justice Warren E. Burger: We will hear arguments next in 71-404, Colten against Kentucky.

Mr. Goldman, you may proceed whenever you are ready.

Mr. Alvin L. Goldman: Thank you.

Mr. Chief Justice, and may it please the court.

The appellant in this case Louis Colten was convicted under the Kentucky Disorderly Conduct Statute, Kentucky's Revised Statutes, 437-016.

He was convicted under provision (f) of that statute, which can be found on page 2 of the brief.

The provision under which he was convicted, would read as follows.

A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.

Two issues are presented in this case with respect to that provision.

One, whether the Kentucky Court of Appeals construction of that provision has rendered it unconstitutional under the Fourteenth Amendment.

The other, whether the application of that statute to the facts in this case, is unconstitutional under the Fourteenth Amendment.

The proceeding under which Mr. Colten was convicted, under which he was convicted in the judgment from which this appeal is being taken involves a two step trial procedure.

In Kentucky, misdemeanors carrying potential penalty of up to 12 months imprisonment and up to $500 fine, can be tried in an inferior criminal court as was Mr. Colten tried in an inferior criminal court in this situation, the Quarterly Court of Fayette County.

The only way an appeal can be taken from that inferior court is by filing for a trial de novo in the court of general jurisdiction, the Circuit Court.

This is what Mr. Colten did in order to frame his constitutional challenges when he was convicted in the inferior court.

When he was tried the second time, he was again convicted, but this time the penalty imposed upon him was increased.

That aspect of the case raises the third issue presented before this Court.

Chief Justice Warren E. Burger: And what was the increased penalty?

Mr. Alvin L. Goldman: In his case, it was a five-fold increase in a monetary penalty and increase from a $10 fine to a $50 fine.

In other case, pending before this Court on a petition for certiorari cases, Bell v. Commonwealth, number 70-5304, involves a much more dramatic increase in penalty.

In that case, the man had been fined and Quarterly Court $1 plus cost, cost paying a statutory requirement in Kentucky.

When he was retried in the Circuit Court, he will receive the penalty of $500 fine and 5 months 28 days imprisonment.

That case also was brought under this disorderly conduct statute.

Chief Justice Warren E. Burger: Mr. Goldman, it may of no significance.

Are the inferior court magistrates, lawyers or laymen in Kentucky?

Mr. Alvin L. Goldman: In the particular court in which Mr. Colten and Mr. Bell were tried, the court commissioner is a lawyer.

The situation with respect to the Quarterly Courts, is that they are adjuncts of the County Court.

The County Court is for the most part an administrative position.

The County judge is in essence the County Administrator in Kentucky.

The vast majority of County judges in Kentucky are not lawyers.

In a case of Fayette County, he happens to be a lawyer and in the case of Fayette County, the Quarterly Court commissioner who is appointed is a lawyer.

It's my understanding though that frequently the County Judges were not lawyers, try these cases themselves and that where commissioners are appointed sometimes they are not lawyers.

Justice William H. Rehnquist: (Inaudible) county Lexington?

Mr. Alvin L. Goldman: Fayette County is the county in which Lexington is situated.

Justice William H. Rehnquist: Are transcript kept of these lower court trials.

Mr. Alvin L. Goldman: No, they are not.

There is no provision for transcript.

My conversations on that matter with the prosecuting attorney in Fayette County, is that the defendant can secure a transcript by bringing his own court reporter and then it's a matter of the court reporter's certification being acceptable to any court which is later to review the matter.

I would point out on that account that the appeal from the Quarterly Court is automatic -- not automatic but it's a matter of right.

One does not have to apply for commission to appeal, one does not have to show grounds for appeal.

One can appeal as a matter of right and I think that probably the reason for the rule being that way is a recognition that the nature of the Quarterly Court proceeding is such, the nature and structure of the Quarterly Court is such that it is readily presumed that errors can and are frequently committed with respect to constitutional rights and even statutory rights and indeed in the opinion of the Court of Appeals below, the court recognized specifically that the nature of these inferior court trials are such, that all of the constitutional rights of a defendant are normally not protected.

Justice William H. Rehnquist: Mr. Goldman, I gather from either the respondent's contention or yours that one can even plead guilty in the quarter sessions or at an appeal to the court of general jurisdiction and obtain a trial de novo, is that correct?

Mr. Alvin L. Goldman: That is correct, Mr. Justice Rehnquist.

The rule of the Court does permit that.

I would point out though that to say to a defendant, all you have to do is plead guilty is to say to a defendant, all you have to do is waive your Fifth Amendment rights, that there are decisions from this Court I believe with respect to the plead bargaining cases suggesting that it is not proper for a court to accept a plea of guilty unless the court is satisfied that indeed the defendant is meaningfully admitting his guilt.

That where the defendant feels that he is not guilty, it is improper for a court to impose any form of pressure on the defendant to come before a court and falsely swear, falsely say in open court, I am guilty.

Justice Potter Stewart: But in this case, your client did not plead guilty in the Quarterly court, did he?

Mr. Alvin L. Goldman: No, Your Honor.

Justice Potter Stewart: If he is not guilty, did he had a lawyer.

Mr. Alvin L. Goldman: He had a lawyer.

Justice Potter Stewart: At the Quarterly Court?

Mr. Alvin L. Goldman: He had a lawyer at the Quarterly Court.

Justice Potter Stewart: Was he a college student?

Mr. Alvin L. Goldman: Yes, Mr. Justice Stewart, he was a college student.

Justice Potter Stewart: Locally there in Lexington?

Mr. Alvin L. Goldman: Locally at the University of Kentucky and counsel was provided for him -- voluntary counsel through the American Civil Liberties Union.

Justice Potter Stewart: Did the same witnesses testify at both trials?

Mr. Alvin L. Goldman: My understanding is that there were few witnesses at Quarterly Court, I was counsel in the trial de novo at Circuit Court that there was one witness, it's my understanding -- my recollection my co-counsel telling me that appeared at the Quarterly Court that did not appear, police officer who testified at the Quarterly Court who did not testify at the Circuit Court.

We did not choose to call that witness in the Circuit Court.

Justice Potter Stewart: How long did it take you to try the case in the Circuit Court?

Mr. Alvin L. Goldman: The equivalent of approximately one day.

Justice Potter Stewart: How long did it take in Quarterly Court in this case?

Mr. Alvin L. Goldman: I don't think I can answer that question with sufficient confidence.

I have sat in on many Quarterly Court trials.

I was present at the trial of Mr. Bell's case in Quarterly Court, the matter that's on petition for certiorari, that case took all about ten minutes.

Most trials in Quarterly Court run somewhere between 10 and 20 minutes.

Justice Byron R. White: Can you get a jury in Quarterly Court?

Mr. Alvin L. Goldman: You can, the Kentucky Constitution provides for a six member jury.

The jury is paid by the losing party.

It's my understanding that in criminal proceedings therefore where the defendant is found guilty, the jury costs are appended to the other costs charged to him and for that reason it's my understanding that when one seeks a jury trial in the Quarterly Court, that person has to post a bond or some other form of security for the payment of the jury fee which works out to be I believe $30.

Justice Potter Stewart: Your client didn't ask for a jury trial in the court?

Mr. Alvin L. Goldman: No Your Honor, he did not ask for a jury trial and the reason for that is that my client is a young man who at that time had quite long hair, rather long mustache and as the trial judge in Circuit Court remarked in words or fact, he dresses in the sort of way that's different from the general way which we are used to seeing people dress.

The nature of the typical juror's attitude in Fayette County is such that counsel felt that we could get a fairer trial from the court in this situation than from a jury.

Justice Potter Stewart: You didn't ask for a jury trial in the Court of General Jurisdiction either?

Mr. Alvin L. Goldman: No, and I might point out that the way the procedure is set up, when you go to Quarterly Court, you have to affirmatively request a jury trial.

In Circuit Court, the jury trial is the norm and one specifically waives.

In fact, there are a number of situations including the Bell case, the companion case in which the court will reject the waiver of jury trial.

Bell was tried by, just the judge in Quarterly Court.

He was tried by a jury because the court and prosecutor both insisted on a jury trial when it came for the trial de novo.

Justice Potter Stewart: Did the Bell case arise from this from events occurring on the same day of Mrs. Nixon's visit to the place.

Mr. Alvin L. Goldman: No, Mr. Justice Stewart, the Bell case rose about 60 days later as in relation to a campus demonstration connected with the Cambodian incidence.

Justice Potter Stewart: At the University of Kentucky?

Mr. Alvin L. Goldman: It was at the University of Kentucky.

It involved a crowd of students being dispersed by the state police.

Some of the same police officers were involved in the -- No, Bell was arrested when a curfew was imposed on the campus and a group approached the state police and said they wanted to go on their campus and in effect submitted themselves to arrest as a form of protest against what they thought to be, what they contend in court to be, and unlawfully imposed curfew.

Justice Potter Stewart: Well, we need to go further than the Bell case and in any event, it didn't arise from anything related to these events.

Mr. Alvin L. Goldman: No, it did not.

Justice Lewis F. Powell: Can you tell Mr. Goldman, in Kentucky may a jury in the Circuit Court determine the sentence as well as guilts?

Mr. Alvin L. Goldman: The jury does determine the sentence as well as guilt in Kentucky, within the statutory limits.

The only control that the court has on the sentence when there is a jury trial is through the probationary procedures.

In the case of the Bell case because the matter is still being litigated, the court has not reached the point of having the probationary issue addressed to it.

The facts out of which surrounding the arrest of Mr. Colten are, I think of some considerable significance.

In the background, we have initially a meeting of Mr. Colten and the officer who eventually took him into custody, Tuper(ph) Harlow at the airport terminal area.

Shortly before Mrs. Nixon's plane departed.

At that time officer Harlow testifies that Mr. Colten came up to him and said to him, we are going to have a party out here, and officer Harlow replied in effect not over here, you know.

He said, they then went off and conducted a scene somewhere nearby.

In this connection, he testified on cross examination to the effect that he was offended by Mr. Colten's appearance that in substance, he testified the fact that he thinks it's quite improper for a group of people looking like Colten looks to be hanging around in airport entrance where in his words an awfully a lot of important people are going in and out.

He did not make any arrest at that time.

Shortly thereafter, a group that was at the airport was departing along the access road.

One of those departing was driving an automobile with an out-of-state license plate that had expired.

Trooper Miller pulled the car that was driving with the out-of-date license off to the side of the road, pulled completely off to the side of the access road.

Trooper Miller pulled in behind that car and Mr. Colten who knew the driver of the car that was pulled over behind the trooper's car.

He got out of the car, he learned that the car that had been pulled was to be toed away.

There were total of five passengers in that car.

Mr. Colten had some room in his own automobile and at least one of the police officers conformed the testimony of the defense witnesses that Mr. Colten said when told to leave by police officers that he wanted to give a ride back to Lexington to these people.

The officer who apprehended Mr. Colten admitted that Mr. Colten indeed may have said that.

Any event -- some other cars pulled over to the side and there was a number of people variously estimated from about 12 to 18 throughout the area where the cars were pulled over.

One officer testified that there was at one point at least, 15 persons in the access road.

The captain who was in-charge of the detail out at the airport pulled up in the access road blocking that road, got out of his vehicle and told these people to leave, get in your cars and leave.

Other police officers stopped and similarly got out of their cars, went over to the crowd and said, leave, get in your cars and leave, you have no business here.

Justice Potter Stewart: Did the evidence show that except for the police officers, most of the members of the crowd or group were the same people, who had been whooping and hollering party out at the airport?

Mr. Alvin L. Goldman: No, the evidence only show that they were people who are out at the airport.

One of the individuals who testified for the defense, for example, had not known Mr. Colten until he accepted an offer for a ride in Mr. Colten's car, a ride back to Lexington.

So it appeared that at least some of the people who pulled off to the side were there at the site, had nothing to do with the --

Justice Potter Stewart: So it was not a regathering of the same group.

Mr. Alvin L. Goldman: No it was not, Your Honor.

There is -- at least the record does not indicate that clearly, one way or the other, many things --

Justice Potter Stewart: Mr. Mendez, had he been a member of the group?

Mr. Alvin L. Goldman: It's not clear in the record Mr. Mendez and Mr. Colten knew each other but where Mr. Mendez is, it's not --

Justice Potter Stewart: And that's all we know from the record.

Mr. Alvin L. Goldman: That's not revealed in the record.

Now, at a point in which Mr. Colten was clearly off of the road, on the shoulder.

Officer Harlow came up to Mr. Colten and told him to leave.

Colten according to Officer Harlow said, I want to stay around and see what's happening.

On the constitutional issues, I think we are perfectly willing to argue the case strictly in terms of Mr. Colten having said nothing more than I want to stand around and see what's happening.

Officer Harlow told Mr. Colten to leave several times and then grab Mr. Colten and started to lead him toward the road.

At that point, a group of other police officers came over, and record is fairly clear that Mr. Colten was at that point roughed up.

I point that out not in any effort to win any sympathy for Mr. Colten, after all if he has any course for complaint about that, he has a civil action.

But I think it is of significance in this case, because one of our contentions is that the interpretive gloss placed upon the statute by the Kentucky Court of Appeals, renders it excessively vague and over broad.

And this Court has frequently pointed out, that one of the deficiencies, constitutional deficiencies have penal statues which are excessively broad and over vague, is that they provide an invitation to abuse by law enforcement authorities.

And I think there is good evidence to suggest that, in fact that is what happened here.

That when we look at the situation realistically, what we have here is a group of people who cause these police officers to have a long hard day of duty.

This was a group that as the record shows had been following Mrs. Nixon around.

They were clearly not sympathetic to Mrs. Nixon's presence.

The police officers had just finished a long hard day of duty.

There are some indications in the record that trial court gave some recognition that these police officers may not have felt too kindly to these individuals.

Justice Potter Stewart: Who had been following Mrs. Nixon around the police officers or --?

Mr. Alvin L. Goldman: Well, both the police officers and these individuals who had been out at the airport.

They had Mrs. Nixon had a tour of the Lexington area, and this group had been going from place to place demonstrating in favor of their gubernatorial candidate.

The gubernatorial candidate, being in effect a protest candidate and they explained that the reason, they were demonstrating for the gubernatorial candidate was to overtly ignore Mrs. Nixon's presence.

Now, the police officers after this long hard day, are confronted with the situation which a fellow officer is issuing a citation.

A group of these people are standing around and they come over and they do, what I think our experience tells us is a normal police practice.

It doesn't necessarily mean it's a constitutionally valid police practice.

They come up to the crowd, they don't say get off the road, they don't say give the officers some clearance, the particular officer was issuing the citation, did not complain about Mr. Colten to the captain, who came over to him, to ask him what was going on.

He did not seek to arrest Mr. Colten, he did not ask anyone to arrest Mr. Colten, he in fact issued his citation without any serious problems.

Justice Potter Stewart: I thought he had to do go back into the Gomez's car in order to do it.

Mr. Alvin L. Goldman: He testified that he went back to his own patrol car, closed the window and proceeded to issue the citation.

There was some suggestion made by him, that he had to do this because of Mr. Colten, nevertheless, when his own captain came to him.

After he went to his patrol car and asked them what's going on?

The captain's testimony shows nothing nor does trooper Miller's testimony, show anything to the effect that trooper Miller said, that man is interfering with me.

I haven't been -- I'm having a problem issuing the citation.

The fact is that Mr. Colten was convicted not for interfering with the police officer, he was convicted for failure to disperse upon “lawful” order of the police.

So we have a situation which the police say, disperse.

And this individual declines to disperse.

He's thereupon arrested.

I think that in most respects, this case is really very close to recent decisions of this Court in cases such as, Papachristou, and I believe it's the Godin case.

The basic question is, what's the quality of life under our constitution?

To what extent is the presumption under our constitution a presumption of lawfulness?

To what extent is the presumption under our constitution and authoritarian presumption?

Does the citizen have to jump, because the police officer addresses him and says, leave, or is the burden upon the police and the prosecutor to show that now you are ordered to leave, because there was a compelling need to order you to leave.

In this situation, I don't think the evidence shows any such compelling need to leave.

Chief Justice Warren E. Burger: Haven't record sometimes said, there is a constitutional right to privacy, and the right to be let alone, a right not to be harassed?

Mr. Alvin L. Goldman: Yes, when there is such a constitutional right to be balanced against the constitutional rights of assembling an expression, those rights have to be balanced.

A police officer performing his duties though Mr. Chief Justice, I do not think has a claim to a right of privacy.

He is a public figure --

Chief Justice Warren E. Burger: I wasn't thinking of the police officer, I was thinking about what you called overtly ignoring someone by following him around all day.

Mr. Alvin L. Goldman: Well, Mrs. Nixon, following of Mrs. Nixon --

Chief Justice Warren E. Burger: Does it make any difference who it is?

Mr. Alvin L. Goldman: I think it does Your Honor, and I think it makes the difference what an individual is doing.

Mrs. Nixon was engaged in a public event, and I think that demonstration, though it was not involved in the facts, giving rise to this arrest.

The arrest in no way had to do with the fact that they were following Mrs. Nixon, at least not directly, that was not the purported cause justifying the arrest.

But certainly that demonstration is an exercise, I think in the most important sense of the freedom of expression.

If it please the court, we would like to reserve whatever time we have for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Goldman, Mr. Willmott.

Argument of Robert W. Willmott

Mr. Robert W. Willmott: Mr. Chief Justice and may it please the court.

I think in this case, that we need to go back to the facts and on this day trooper Miller, the trooper who stopped the Mendez car.

His chief duties were to keep the access road to the airport free and clear of traffic and to keep traffic moving on.

Justice Potter Stewart: He was a state police officer or county or city?

Mr. Robert W. Willmott: State police, all the officers involved in the --

Justice Potter Stewart: Highway patrol?

Mr. Robert W. Willmott: Yes, sir, captain state police.

His commanding officer Captain Mayes testified that he gave verbal instructions as to the security, the traffic flow not letting it by stop on the road.

I think this is normal precautions when you have a dignitary visiting.

And trooper Miller pulled Mendez's car over solely, because it had an expired license plate.

There was no cause for Colten to stop, but he did.

He got out of his car, he proceeded up and asked trooper Miller, why he had stopped the Mendez car.

Trooper Miller explained to him why he had done this that the license plate was expired, then asked him to please leave, as it was none of his concern.

Colten's reply was, no I want to stay around and see, what's going to happen.

And he keeps badgering and trooper Miller is worried.

He became obnoxious to the point that trooper Miller had to return to his cruiser in order to fill out the ticket.

Captain Mayes (ph) was the next car to stop, the next police car to stop.

He came up and tapped on trooper Miller's car and asked him, what the problem was and did he have these people stop?

Trooper Miller replied, no I have asked him to leave, I don't have him stopped.

And Captain Mayes said, well I just want to check and then he proceeded along with, I believe it was lieutenant Maverley (ph) who was in his car proceeded to get out, and expressed general directions to the crowd, to please disperse, to leave, and he testified that he saw appellant in the crowd that he addressed this, these comments to.

By this time there were some six to ten cars which Colten himself testified were part of the procession.

That had gone to the airport together and were leaving together.

And people were getting out of their cars, they were standing in the roadway.

The police cars were forced to park on the roadway.

And I think that the access road must be understood, it is only a two lane road.

It is not very wide, there are fences on either side of it.

There was testimony, that there were no parking signs on the other side of the road, now today there are no parking signs on both sides of the road.

Justice Lewis F. Powell: Does the record show the width of the road and the width of the shoulders?

Mr. Robert W. Willmott: I think that the gravel portion of the shoulder was estimated at two feet.

I don't think there is an actual width estimated, it's about 18 to 20 feet wide.

Justice Lewis F. Powell: Was there fence beside the shoulder where these cars were parked?

Mr. Robert W. Willmott: Yes Your Honor, immediately to the right.

Colten testified that trooper Harlow when he grabbed him by the arm pushed him up against the fence.

So it's not more than I would say 8 to 10 feet from the shoulder to the fence, at a distance.

Justice Lewis F. Powell: Had this been to the black top to the fence or from the edge of the shoulder to the fence, what does the record show?

Mr. Robert W. Willmott: I don't think the record shows a distance, a firm distance and the only thing I can give is an approximation from my own recollection.

Justice Thurgood Marshall: Well, as I understand the car was pulled off the road, right?

Mr. Robert W. Willmott: Yes Your Honor.

Justice Thurgood Marshall: And the State Trooper was behind him.

Mr. Robert W. Willmott: Off the road.

Justice Thurgood Marshall: And did the other cars come behind the state trooper?

Mr. Robert W. Willmott: Well there is testimony.

Justice Thurgood Marshall: Well, where was Colten's car?

Mr. Robert W. Willmott: Pardon.

Justice Thurgood Marshall: Were was Colten's car?

Mr. Robert W. Willmott: Colten stopped his car off the road behind trooper Miller's car.

Then Captain Mayes pulled his car up on the surface almost abreast with trooper Miller's, the back of trooper Miller's.

Justice Thurgood Marshall: My whole point was, at the time the Captain came up, who was in the road?

Mr. Robert W. Willmott: Colten was standing in the road while talking to trooper Miller.

Now, he was up by Mendez's car and there was disputed testimony as to which.

Justice Thurgood Marshall: Well he wasn't blocking the road, was he?

Mr. Robert W. Willmott: There is disputed testimony, his testimony is that he was standing by the right front fender and the officers testified that he was variously in the road and off the road and walking around the car.

Justice Thurgood Marshall: Well, if it's two lane road, it's pretty hard for one person to block it.

Is it?

Your Honor by this time there were about six to ten cars with --

Justice Thurgood Marshall: Where were those cars, that's what I was trying to get to you?

Mr. Robert W. Willmott: Well they parked off the shoulder and in front of Mendez's car and behind the police cars had stopped -- three more police cars.

Justice Thurgood Marshall: So they weren't in the roadway?

Mr. Robert W. Willmott: No Your Honor.

The police cars --

Chief Justice Warren E. Burger: Then what was blocking the roadway?

Mr. Robert W. Willmott: The police cars were in the roadway.

Justice Thurgood Marshall: And that's all was blocking it.

Mr. Robert W. Willmott: That and the crowd was in the roadway.

Justice Thurgood Marshall: Crowd, how many people?

I thought you said six to ten people.

Mr. Robert W. Willmott: Well, it was 15, approximately 12 to 15 to 18 people.

Justice Thurgood Marshall: And they were scattered all over the road?

Mr. Robert W. Willmott: The testimony, depending on which side you look at it, puts them in the roadway or on the right side of the car, some of them still in the cars.

Justice Thurgood Marshall: But the captain didn't find any fault when until he asked the lieutenant what's going on?

Mr. Robert W. Willmott: Well, the --

Justice Thurgood Marshall: And the lieutenant told that man there is what my trouble is and then he got arrested.

Am I right?

Mr. Robert W. Willmott: No, no Your Honor.

Justice Thurgood Marshall: Well, correct me.

Mr. Robert W. Willmott: The trooper Miller had his light flashing, he had a person sitting in the car, there was car in front of him, a car in behind of him, Captain Mayes got out of his car and asked him, what's going on.

He said, I have got this car stopped for a traffic violation and Captain Mayes said, are these people needed, are they important or what are these other people doing?

And trooper Miller said, I don't know, I have asked him to leave, I don't have him stopped.

And by this time more people were getting out of their cars and Captain Mayes proceeded to attempt to clear the roadway.

Justice Thurgood Marshall: Then how did Colten get arrested?

Mr. Robert W. Willmott: Well after Captain Mayes told the crowd some four or five times to please leave, trooper Brown got at, was third state policeman in line, he got out and asked Colten two times to leave and he kept telling him, I am going to stay around and see what happens.

And finally trooper Harlow came up to Colten and said are you going to leave?

And he said, yes I am going to leave, but I want to see what happens first.

And then he grabbed him by the arm and he says, now are you going to leave?

He said, yes, but I want to see what happens first and then he arrested him for --

Justice Thurgood Marshall: Why did he grab him with the arm?

Mr. Robert W. Willmott: I don't personally know why he grabbed him by the arm.

Justice Thurgood Marshall: He denied, that he stand him up against the fence.

Mr. Robert W. Willmott: I don't think he denied it.

Justice Thurgood Marshall: Well, what right did he have to do that?

Mr. Robert W. Willmott: I don't know that he hit him Your Honor.

I think he grabbed him by his arm and was walking towards the police wagon and I think that's why they went up against the fence.

Maybe Colten was back and away from him, I don't --

Justice Potter Stewart: Whether or not Colten was mistreated that day by the police, has no bearing on the issues in this case, does he?

Mr. Robert W. Willmott: No Your Honor.

Justice Potter Stewart: That is after the arrest.

Mr. Robert W. Willmott: And I think that in this case where we have got to apply the standards of vagueness and over breadth to the actual facts and appellant has made much of the fact that he feels his speech, freedom of speech and freedom of assembly was tightened.

I don't think there is any standing for him to allege that.

I don't think that he has any freedom of assembly, freedom of speech in this case.

The police were merely trying to clear the roadway.

They were not prosecuting appellant, he has made much all the way up here about his appearance and the fact that the police may have been down on him.

But I think that the exact opposite can be assumed from this record by virtue of the fact that they told him ten times to please leave.

Now, it seems absurd that he didn't understand them, that he didn't realize that they were asking him to leave and several police officers testified that they asked him please to leave.

And he even states on his direct examination that I know better than to interfere with the police officer in whatever he was doing.

So I hadn't said a word to the police officer.

Now, this is in contrast of the testimony of trooper Miller who says that Colten comes up and he has asked him why he has stopped the car and he is asked to leave.

Now, the statute on its face, made me divide it into three parts.

The first part is was their intent to call this any public inconvenience, annoyance or alarm or recklessly create a risk thereof.

Now, I don't think that there is any great alarm here, any great annoyance, no tremendous inconvenience.

But, the fact that Mrs. Nixon was at the airport, one may assume that there was a fairly substantial crowd, as well-wishers wishing Mrs. Nixon a happy trip back and that they were leaving the airport at this time.

Now, when you take six cars and pull them off on a shoulder and three police cars in the roadway, so that only one lane is open, you severely congested the traffic.

Now, the main objective of police was they want to break it up, they weren't trying to arrest anybody, they weren't looking to bust anybody, they just wanted to get the traffic moving.

And I think the intent is clear by Colten's stopping, by his continued refusal to leave.

Now, second part of the statute is did he congregate with others in a public place?

I think there is ample testimony in the record that crowd was estimated from 12 to approximately 18 people that they were standing in the roadway.

Justice Potter Stewart: That 12 to 18 people include the policeman?

Mr. Robert W. Willmott: No Your Honor.

There were testimony from I believe 5-9 policeman different -- there were four state -- five state troopers there, four of them testified at the Circuit Court trial.

Justice Potter Stewart: How many cars does the record show had pulled up and stopped on the shoulder of the road?

Mr. Robert W. Willmott: The defense or the civilian cars were estimated between 6 and 10 and there were three state police vehicles and there has to have been a county police vehicle because it was a county police (Inaudible), now that one came up later.

So there were approximately 9 or 10 vehicles there with 3 of them being state police cars.

And a public place is -- a highway is a public place, any place that the public travels is defined as a public place and finally we have to look and see did he violate a lawful order of the police to disperse.

Now, the order of the police must be lawful and I submit that in this case the fact that they were trying to clear the road of traffic to provide a free moving flow of traffic that by necessity made this a lawful order that the police have autonomous control of traffic.

That's one of their primary responsibilities, as regulation and enforcement.

Justice Byron R. White: So are you going to argue the Pearce point increased sentence?

Mr. Robert W. Willmott: Yes Your Honor.

Chief Justice Warren E. Burger: Before you leave the facts, was this a road which at that time was being used for access to the airport by people who wanted to get there or was it only used for people leaving the airport?

Mr. Robert W. Willmott: Serves both, it is an entrance and an exit from the airport and other than a road that winds through a park going out the back way, it's the only entrance to the Lexington Blue Grass Airport.

Chief Justice Warren E. Burger: The record show anything about the volume of the traffic in that airport, the frequency of people coming to catch an airplane.

Mr. Robert W. Willmott: No Your Honor, there is no testimony to that effect.

There is testimony by the officers at the traffic at that time was very heavy and the defense has testified that there was no traffic on the road at that time.

Finally, the third part of the statute, I think it's clear that Colten refused to disperse after being so asked.

Now, this statute Kentucky disorderly conduct statute is very similar to the statute in the Shuttleworth case.

There the regulation had to do with regulating flow on a side wall, but the wording is essentially the same and in that case the Alabama Supreme Court interpreted the Alabama Statute, so as to make it constitutional and I think in this case the Kentucky Legislature enacted this disorderly conduct statute based on a statute similar to the Shuttleworth case, so as to make it constitutional.

Justice Thurgood Marshall: (Inaudible) to show where Mr. Colten was standing when he was arrested, is that?

Mr. Robert W. Willmott: Yes Your Honor, when he was physically placed under arrest he was on the right side of the cars that had pulled off the road.

Justice Thurgood Marshall: He wasn't on, well how did he get to the fence?

Mr. Robert W. Willmott: Your honor he wandered all over.

Justice Thurgood Marshall: When he was told to move and disperse?

Mr. Robert W. Willmott: By which officer Your Honor, he was told by --

Justice Thurgood Marshall: Officer who arrested him, he was obeying his orders.

Justice Byron R. White: He was told several times to move wasn't he.

Mr. Robert W. Willmott: Ten times.

Justice Byron R. White: Right.

Mr. Robert W. Willmott: At least ten times.

Justice Thurgood Marshall: But I am interested in the officer who arrested him for not disobeying his order to move from what place.

Mr. Robert W. Willmott: I believe the record will show that he was standing at the right rear fender of the Mendez vehicle.

Justice Thurgood Marshall: Was that on or off the road?

Mr. Robert W. Willmott: The Mendez vehicle was off the road.

Justice Thurgood Marshall: Where was he, off the road?

Mr. Robert W. Willmott: He was standing by the right rear fender of the car, the car was off the road.

Justice Thurgood Marshall: So he was off the road.

Mr. Robert W. Willmott: Yes Your Honor.

Justice Thurgood Marshall: So he wasn't blocking traffic.

Mr. Robert W. Willmott: No sir, he wasn't out in the street at the time trooper Harlow arrested him.

Justice Thurgood Marshall: And he was arrested for not dispersing.

Mr. Robert W. Willmott: Yes Your Honor.

Justice Thurgood Marshall: Rather he was convicted because the judge says specifically was convicting him for refusing to comply with the lawful order of the police to disperse.

Mr. Robert W. Willmott: Yes Your Honor.

Justice Byron R. White: I take it under Kentucky law, a refusal to disperse following any of those instructions where it supported a conviction.

Mr. Robert W. Willmott: I think it would Your Honor.

In regard to the increase in punishment from the Fayette Quarterly Court to the Fayette Circuit Court, I think that the Pearce decision as set forth in the opinion applies to retrials, a case where a man secures a reversal and there were errors committed at the trial, he has appealed from errors.

Now the spirit of Pearce seems to be that a person should not be in fear of following an appeal.

I think that the trial de novo system should not be governed by that, because here there are no errors appealed from the judgment, the sentence, the plea, the evidence and nothing that is introduced at the Quarterly Court.

Justice Potter Stewart: Is there a transcript of the proceedings in the Quarterly Court here?

Mr. Robert W. Willmott: No Your Honor.

Justice Potter Stewart: Just the transcript above.

We don't know whether the evidence was the same at both trials.

Mr. Robert W. Willmott: I think it was more thorough in the Circuit Court, I think there were more witnesses other than the fact that I think.

Justice Potter Stewart: And ordinarily I take that Quarterly Court proceedings are not transcribed.

Mr. Robert W. Willmott: No Your Honor you must bring your own (Inaudible) in if you wish to transcript.

Chief Justice Warren E. Burger: I suppose if it's $10 fine, not very many people do that.

Mr. Robert W. Willmott: No Your Honor.

Chief Justice Warren E. Burger: That is the fine here, $10.

Mr. Robert W. Willmott: $10 in the Quarterly court.

Now, there was nothing used in the Circuit Court.

Justice Potter Stewart: Can I ask one more question, I take it -- the Circuit Court is actually a Upper Court.

Mr. Robert W. Willmott: Yes Your Honor.

Justice Potter Stewart: I take it, now the court knew, this was a trial without a jury wasn't it.

That the court knew that the sentence imposed in the Quarterly Court was $10.

Mr. Robert W. Willmott: I am sure they did, Mrs. Wilson in her closing argument mentioned the $10 fine in the Lower Court.

So whether he knew it from any other source or not I am sure he got it from that.

Justice Potter Stewart: He didn't say why he chose to pose of $50 rather than $10 fine.

Mr. Robert W. Willmott: No Your Honor, there is no explanation of why he increased it from 10 to $50.

Justice Potter Stewart: Now with this advice, before you can do that, you do have to -- judge does have to say why he has done it and within the limits of circumstances under which he may make the increase.

Mr. Robert W. Willmott: And I think that is to show if there is a lack of any vindictiveness or that he is applying a penalty for the --

Justice Potter Stewart: Why don't think that same requirements apply in these case.

Mr. Robert W. Willmott: Because I think this is a whole new ball game.

As I say in Kentucky a man could walk in and plead guilty and say Your Honor I am sorry, I didn't mean to do that and --

Justice Potter Stewart: Or he could just plea guilty without saying even that and yet get a trial de novo.

Mr. Robert W. Willmott: Right and he could all for mitigating circumstances and receive a suspended sentence and to require the Circuit Court to try a man later on the same case on a not a guilty plea and then be unable to impose any punishment whatsoever, defeats the whole purpose of the trial de novo system.

Justice Potter Stewart: What's the maximum that could have been imposed?

Mr. Robert W. Willmott: Six months and $500.

Justice Potter Stewart: And that's what happened in this other case.

Mr. Robert W. Willmott: Bell case; I am not familiar with that other than I have seen the brief in the case.

Justice Potter Stewart: But I suppose Kentucky wouldn't have been obligated to give him in a constitutional sentence.

Mr. Robert W. Willmott: In the Circuit Court they would have been banned by the constitution to give him a jury trial, yet, expressly by State Constitution and statute.

Chief Justice Warren E. Burger: They cannot waive the jury and except for the consent of all the parties, isn't that it and the judge?

Mr. Robert W. Willmott: It must be expressed as a waive from the Circuit Court.

But the purpose of the Quarterly Court is to serve as a court of convenience.

That's where any traffic tickets or any misdemeanors.

I would say that 85% of the cases are guilty pleas which rather government said were disposed off five minutes, ten minutes if that long.

The majority of the lower courts, adjuncts on the county court system, the commissioners or the judges are not lawyers.

In Lexington we are fortunate to have a judge as a Commissioner of the Quarterly Court.

But they just merely provide an outlet for speedy administration of justice.

Now if a person wishes a full bond trial, he can either go through a short trial in Quarterly Court or he may plea guilty and then just walk out the door and around the quarter and file for his trial de novo in the Circuit Clerk's office.

I think that approximately half the states employee have trial de novo system.

Some are tending to lean away from it, some are adhering to it and I think that to hold that the trial de novo system is under the guidelines of North Carolina versus Pearce would severely hamper this system.

Justice Potter Stewart: Exactly and yet some states do so provide that a more severe sentence cannot be imposed upon a new trial and told us in a case argued earlier this term that it does not hamper their system, those referred to in petitioner's brief, that is what he is trying to call the attention.

Mr. Robert W. Willmott: But I think that in a trial de novo system that it is essential that the state and the accused start out at parity, that you are hamstringing the prosecution, if there is a very low fine or a suspended sentence or a probated sentence.

The prosecutor is not going to want to try a case where even a jury cannot impose any punishment and this is either going to force the Quarterly Court out of existence except to hear maybe guilty pleas or it's going to result in the Quarterly Court hanging down the maximum sentences.

Justice Potter Stewart: What if the courts would take it that (Inaudible) wouldn't apply to petty offenses?

Mr. Robert W. Willmott: I think that that should be a distinguishing characteristic.

Justice Potter Stewart: What would that do in Kentucky?

Is the Quarterly Court involved with the serious crimes?

Mr. Robert W. Willmott: No, Your Honor.

Sometimes they act as an examining trial or preliminary act.

Justice Potter Stewart: Well are they limited where they may impose punishment to ordinances or statutes which limit to six months?

Mr. Robert W. Willmott: I think they are limited to below 12 months and --

Justice Potter Stewart: Below 12, well, that's not quite blindly drawn on petty offenses.

Mr. Robert W. Willmott: No, Your Honor.

Justice Potter Stewart: But I suppose it does with lot of statutes where the penalty is less than six months, the possible penalty.

Rebuttal of Alvin L. Goldman

Mr. Alvin L. Goldman: Yes.

Justice Potter Stewart: And also suppose whatever the authorized penalty is jailed very often can be meted out in the Quarterly Court?

Rebuttal of Robert W. Willmott

Mr. Robert W. Willmott: In my personal experience, no, not in cases like this.

Justice Potter Stewart: Is jail really a realistic threat in the Quarterly Court?

Mr. Robert W. Willmott: No, Your Honor.

It isn't for first defenders.

Now, where the government will reside again to the Bell case.

Justice Byron R. White: This particular statute authorized what a maximum six months?

Mr. Robert W. Willmott: Six months and $500 fine.

Justice Thurgood Marshall: And he could have gotten six months.

Mr. Robert W. Willmott: Yes, Your Honor.

Justice Thurgood Marshall: And you would have said that's alright.

Mr. Robert W. Willmott: Yes, Your Honor.

So in conclusion, I would say that the appellant has no standing to question, the constitutionality of the disorderly conduct statute of Kentucky.

He was not engaged to any protective activity.

He was disrupting traffic, he was asked to leave by four policemen ten times.

They were not picking on him, they just wanted to get the traffic moving and also that the trial de novo system used in Kentucky, is outside the guidelines set down in North Carolina versus Pearce and the state and the accused should be started at parity in a trial de novo system.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Willmott.

You have few minutes left Mr. Goldman.

Rebuttal of Alvin L. Goldman

Mr. Alvin L. Goldman: Thank you, Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. Willmott has suggested that if the Pearce doctrine is extended to petty cases or is construed as applying to petty cases that it will have a tendency to have these county courts give the maximum sentence in every case so as to avoid any problem.

Do you think that's -- what's the reaction of that?

Mr. Alvin L. Goldman: I think the experience referred to when the Rice case was argued here indicates the contrary. If that were to be done it would be, of course, self-defeating.

The purpose of the Quarterly Court is for the convenience of the state at least as much as and I think more than for the convenience of the defendant and this would only, in fact, force people to or encourage people to exercise their appeal to the circuit court.

So I don't think that's very realistic.

And Mr. Justice White asked the question of what if we limit the Pearce decision to all but petty offenses.

In the case of the Quarterly Court, jail is a realistic prospect, particularly, in cases of public drunkenness, which is a common sort of case to come before the Quarterly Court, disorderly conduct cases where it's a second or third offense, Quarterly Court does meet out jail sentences.

Even if we are dealing with a much more, narrow definition of petty offenses, I still would argue that the concept of due process is applicable whenever the government of the Commonwealth of Kentucky or the government of the United States is acting vis-a-vis the citizenry.

We're entitled no matter how serious the penalty imposed to a procedure that has an inherent fairness and I think therefore that when there is a purported --

Justice Potter Stewart: Not jury trial.

Mr. Alvin L. Goldman: Well, the jury trial in the Quarterly Court is available.

Justice Potter Stewart: I know but is it constitutionally required?

Would a jury trial have been constitutionally required under the statute?

Mr. Alvin L. Goldman: Had we asked for the jury trial, it would be.

Justice Potter Stewart: Under the state constitution.

Mr. Alvin L. Goldman: Under the state constitution.

Justice Potter Stewart: Not in the federal.

Mr. Alvin L. Goldman: No, under the state constitution it would be.

Justice Potter Stewart: But not the federal.

Mr. Alvin L. Goldman: Under the federal constitution, I think it would be too, though this Court has not yet so held in the cases.

Justice Potter Stewart: It's held the opposite, isn't it?

Mr. Alvin L. Goldman: This Court has held the opposite, I would hope some day this Court may reconsider that issue, particularly in light of the fact that this Court has now held but a 12 men jury is not necessary.

I think the concerns of the burden on the state that may influenced prior decisions may cause this Court to rethink that it should.

Now Mr. Justice Rehnquist, asked my opponent whether in all of these orders to leave under Kentucky law, Mr. Colten could have been convicted for failure to obey and the question was asked in such a way as to he could under Kentucky law, could he not.

And I agree that the way the Kentucky Court of Appeals has construed this statute ad we find that instruction on pages 6 (a) and 7 (a) in the jurisdictional statement, that the way it has construed the statute indeed, any failure to obey the police officer would subject Mr. Colten to a penalty under the statute, unless Mr. Colten could establish that his predominant intent, was to assert a constitutional interest and even then, the Kentucky court would balance mere inconvenience to a police officer or some portion of the public against the asserted constitutional interest, not to balance this.

Chief Justice Warren E. Burger: What about someone who is at the last minute as some of us do trying to get to that airport, catch a plane.

Isn't there a rights of some importance?

Mr. Alvin L. Goldman: Their rights were not hindered in this case, we felt with Mr. Colten.

Your Honor.

I think that Mr. Colten failed to obey an order as part of the crowd that was blocking a highway to leave the highway, then he could properly be convicted but Mr. Colten left the highway.

He'd been at the edge of the highway and he -- there was an announcement to leave and he left the highway.

He was off of the highway so that he was not causing the blockage.

The blockage was caused by a police patrol car which could have parked on the opposite shoulder.

Now there is also a suggestion as to whether, perhaps, there was no parking here.

I think the answer is that he was not convicted for failure to obey a no parking law, in fact, the record the best the record shows on any no parking requirements is that there may have been signs prohibiting parking on that side of the road, prior to the group leaving the airport, that is earlier in the day there may have been signs on both sides of the road.

At the time, the group left the airport, any no parking signs, if there were any, were on the opposite side of the road, not where these cars were pulled off the road.

Chief Justice Warren E. Burger: Thank you Mr. Goldman, thank you Mr. Willmott.

The case is submitted.