Supreme Court to Decide Bakke-Type Employment Issue

    Supreme Court of the United States

O ctober T e r m , 1962

No. 167

ROBERT MACK BELL, et a l ,,
Petitioners,

v.

STATE OF MARYLAND,
Respondent.

On P e t it io n  for W r it  o f  Certiorari to  the 
C ourt of A ppea ls  o f  M aryland

BRIEF IN OPPOSITION

T h o m a s  B. F in a n ,
A ttorney General,

L oring E. H a w e s ,
A ssistant A ttorney General, 

10 Light Street,
Baltim ore 2, Md.,

F or Respondent.

The Daily Record Co., Baltimore 3, Md.



I N D E X

T able of C ontents

pag e

O p in io n  B elow  .........................................................................  1

J urisdiction  ................................................................................  1

Q u estio n s  P r e s e n t e d ..............................................................  2

C o n stitu tio n a l  P rovisions and S tatutes Involved 2

S ta tem en t  of F acts................................................................  3

A rgu m en t  :

I. The Petitioners have not presented a case of 
sufficient im portance to w arran t fu rther re ­
view ..........................................................................  3

II. The arrest and conviction, pursuant to a Gen­
eral S tate Trespass Statute, of Negro students 
protesting racial segregation, who over the 
objection of the  owner seated themselves in 
the dining area of a privately-owned restau­
ran t in a privately-owned building, and who 
refused to leave the premises when so ordered 
by the owner, under the facts of this case, do 
not constitute prohibited state action w ithin 
the m eaning of the Fourteenth A m endm ent of
the U nited States Constitution...........................  4

III. There is no conflict betw een this case and de­
cisions of the Suprem e Court securing the 
righ t of freedom of speech and assembly under 
the F irst and Fourteenth  Amendments of the 
Constitution ............................................................ 1

IV. The decision below does not conflict w ith de­
cisions of this Court barring convictions under 
crim inal statutes which give no fair w arning
th a t Petitioners’ conduct was prohibited 9

C onclusion  .........................................................................  10
A ppen d ix  —  Baltim ore City Ordinance No. 1249 11



11

T able of C ita tio n s  

Cases
PAGE

Beal v. United States, 340 U.S. 852...............................  3
Bell v. State, 227 Md. 302, 176 A. 2d 771.......................  1, 6
Boynton v. Virginia, 364 U.S. 454.................................... 3, 7
B urton v. W ilmington Parking A uthority, 365 U.S.

715 ................................................................................... 3,7
Community Service, Inc. v. U nited States, 342 U.S.

932 ..................................................................................  3
G arner v. Louisiana, 368 U.S. 157.................................  3, 5, 7
M arsh v. Alabama, 326 U.S. 501.....................................  8
M artin v. S tru thers, 319 U.S. 141................................... 6, 8,10
M unn v. Illinois, 94 U.S. 113............................................ 7
People v. Barisi, 86 N.Y.S. 2d 277...................................  8
Shelley v. Kraem er, 334 U.S. 1.......................................  5, 7
Slack v. A tlantic W hite Tower System, Inc., 181 F.

Supp. 124, afif’d Fourth  Cir., 284 F . 2d 746...........  4
Sokol Brothers v. Commissioner, 340 U.S. 952............. 3
United States v. Abrams, 344 U.S. 855...........................  3
Williams v. Howard Johnson’s R estaurant, 268 F. 2d

845 ..................................................................................  6

Statutes

A nnotated Code of M aryland (1957 E d itio n ):
A rticle 27, Section 577.............................................. 2

Baltim ore City Ordinance No. 1249...............................  3
Constitution of the U nited S ta tes :

F irst A m endm ent ......................................................  2, 7
Fourteenth  Am endm ent .......................................... 2, 4, 7

Laws of M aryland, 1900:
Chapter 66 ....................................................................  2

28 U.S.C. 1257(3)................................................................  1



Ill

Miscellaneous
PAGE

American Law Institute, Restatem ent and Torts,
Section 77 ....................................................................  6

4 Am. Jur., Assault and B attery:
Section 76, page 167 6

9 A.L.R. 379, Right to Eject Customers from  Store 6
66 H arvard  Law  Review 465, 1953, Stern, Denial of

C ertiorari Despite a Conflict...................................... 3



I n T he

Supreme Court of the United States

O ctober T e r m , 1962

No. 167

ROBERT MACK BELL, e t  a l .,
Petitioners,

v.

STATE OF MARYLAND,
Respondent.

On  P etitio n  for W r it  of Certiorari to the 
C ourt of A ppea ls  of M aryland

BRIEF IN OPPOSITION

OPINION BELOW
The opinion of the  Court of Appeals of M aryland in this 

case, reported as Bell v. State, 227 Md. 302, 176 A. 2d 771, 
and the M emorandum Opinion of Judge Byrnes, Criminal 
Court of Baltim ore City, are fully  set forth  in the  Appendix 
to the Petition  for W rit of Certiorari.

JURISDICTION
The Petitioners allege tha t the Suprem e Court of the 

U nited States has jurisdiction pursuant to 28 U.S.C. 1257(3). 
The Respondent denies tha t the Suprem e Court has ju ris­
diction over this case.



2

QUESTIONS PRESENTED
1. Do the  Petitioners present a case of sufficient im­

portance to w arran t fu rth er review?

2. Does the arrest and conviction, pursuant to a general 
S tate  trespass statute, of Negro students protesting racial 
segregation who, over the objection of the owner, seated 
themselves in the  dining area of a privately-ow ned restau­
ran t in a privately-ow ned building, and who refused to 
leave the  premises w hen so ordered by the owner, under 
the facts of this case, constitute prohibited State action 
w ithin the m eaning of the  Fourteenth  A m endm ent of the 
U nited S tates Constitution?

3. Did the arrest and conviction of Petitioners under the 
Crim inal Trespass S ta tu te  in this case deny the Petitioners, 
who w ere engaged in a “sit-in dem onstration” in a private 
restaurant, the freedom of speech and assembly guaran­
teed by the F irst and Fourteenth  Amendm ents to the Con­
stitution of the  U nited States?

4. Was the  conviction of Petitioners obtained under a 
statu te so vague as to give no fair w arning th a t their con­
duct was prohibited and so as to constitute a violation of 
due process of law secured by the  Fourteenth Amend­
ment?

CONSTITUTIONAL PROVISIONS AND STATUTE 
INVOLVED

1. Section 1, Fourteenth  A m endm ent to the  Constitu­
tion of the United States.

2. F irst A m endm ent to the  Constitution of the United 
States.

3. Section 577, A rticle 27, A nnotated Code of M aryland 
(1957 Edition); Chapter 66, Laws of M aryland, 1900. 
(See Petition  at page 3.)



3

STATEMENT OF FACTS
The S tate  adopts the  Petitioners’ S tatem ent of Facts.

ARGUMENT
I. PETITIONERS HAVE NOT PRESENTED A CASE OF SUFFICIENT 

IMPORTANCE TO WARRANT FURTHER REVIEW.

The Petitioners in this case have not presented to the 
Suprem e Court a case of sufficient m agnitude to w arran t 
fu rther review. The issue in this case as it applies to 
Hooper’s R estaurant is no longer significant. Since the 
conviction of the Petitioners, the City Council of Baltim ore 
City has passed an ordinance (Baltim ore City Ordinance 
No. 1249, June 8, 1962; see Appendix, infra, p. 11) barring 
refusal of service in Baltim ore restaurants solely on racial 
grounds.

Circumstances leading to the conviction of the  Petitioners 
could not again arise by reason of the above cited ordinance. 
The Suprem e Court should not grant certiorari in this case, 
the  issues of which have become purely academic, inas­
much as the Petitioners have achieved by political means 
in this com munity the result sought in the courts. See 
United States v. Abrams, 344 U.S. 855; Com m unity Serv­
ices, Inc. v. United States, 342 U.S. 932; Sokol Brothers v. 
Commissioner, 340 U.S. 952; Beal v. United States, 340 
U.S. 852; Stern, Denial of Certiorari Despite a Conflict, 66 
H arvard Law  Review 465 (1953). Furtherm ore, the Su­
prem e Court has had before it on previous occasions cases 
involving the constitutional questions presented in this 
Petition and the  Court in those instances refused to con­
sider the constitutional issues presented here. Boynton  
v. Virginia, 364 U.S. 454; Burton v. W ilm ington Parking  
A uthority, 365 U.S. 715; Garner v. Louisiana, 368 U.S. 157.



4

II. THE ARREST AND CONVICTION, PURSUANT TO A GENERAL 
STATE TRESPASS STATUTE, OF NEGRO STUDENTS PROTESTING 
RACIAL SEGREGATION, WHO OVER THE OBJECTION OF THE 
OWNER SEATED THEMSELVES IN THE DINING AREA OF A 
PRIVATELY-OWNED RESTAURANT IN A PRIVATELY OWNED 
BUILDING, AND WHO REFUSED TO LEAVE THE PREMISES WHEN 
SO ORDERED BY THE OWNER, UNDER THE FACTS OF THIS 
CASE, DOES NOT CONSTITUTE PROHIBITED STATE ACTION 
WITHIN THE MEANING OF THE FOURTEENTH AMENDMENT OF 
THE UNITED STATES CONSTITUTION.

The Petitioners argue tha t the decision below conflicts 
w ith  decisions of the Suprem e Court which condemn the 
use of state power to enforce a “state  custom” of racial 
segregation. There is nothing in the record to support the 
bald assertion th a t there is in the S tate of M aryland a cus­
tom of racial segregation. There was no such finding of 
fact by the tria l court. Almost th ree  years ago, a consider­
able period considering the rapid evolution of race rela­
tions, Chief Judge Thomsen of the  United States D istrict 
Court of M aryland found, as a m atter of fact, tha t in 
February  of 1960 there was no “custom, practice, and usage 
of segregating the races in restaurants in M aryland.” Slack 
v. A tlantic W hite Tower System , Inc., 181 F. Supp. 124,
126, 127, aff’d Fourth  Cir., 284 F. 2d 746. In tha t decision, 
after reviewing facts presented by both sides on the ques­
tion of custom and usage, Chief Judge Thomsen stated: 
“Such segregation of the  races as persists in restaurants 
in Baltim ore is not required by any sta tu te  or decisional 
law of M aryland, nor by  any general custom or practice of 
segregation in Baltim ore City, bu t is the  resu lt of the 
business choice of the individual proprietors, catering to 
the  desires or prejudices of their custom ers”. Ibid, page
127, 128. Furtherm ore, in view of the fact tha t the elected 
representatives of the people of Baltim ore have passed an 
ordinance condemning racial segregation in restaurants



5

in  the  city, it can hardly  be said tha t the action of the  court 
in finding the Petitioners guilty of trespass in  fact was 
pursuant to and in support of an entrenched public policy 
of racial segregation.

The S tate  action under the facts of this case was not 
prejudicial to Petitioners’ constitutional rights. S tate ac­
tion in Garner v. Louisiana, 368 U.S. 157, was initiated by 
the  police. Petitioners w ere denied no rights of property. 
Shelley v. Kraemer, 334 U.S. 1. In  rem aining on the prem ­
ises of the restaurant, they had none. A considerable tim e 
elapsed between the hostess’s refusal to  seat the P eti­
tioners and their arrest. The record shows tha t they pushed 
past the  hostess to obtain seats in the dining area (T. 13). 
There was then  a long conversation between the leader of 
the group and the  m anager and owner of the restauran t 
(T. 33). The Petitioners w ere requested to leave bu t re­
fused to do so (T. 26). The Police w ere summoned. W hen 
they arrived the members of the Negro group w ere the 
only persons rem aining in the  restauran t (T. 37). The 
Trespass S ta tu te  was read to the group in the presence 
of the  police (T. 37). Some of the group left, bu t the re ­
m ainder refused (T. 38). Employees of the  restauran t 
took down names and addresses of those rem aining (T. 37). 
Since the Police refused to arrest the Petitioners w ithout 
a w arrant, Mr. Hooper w ent to the Central Police Station 
to obtain w arran ts (T. 38). The M agistrate called the 
leader of the group on the telephone, discussed the situ­
ation and arrangem ents w ere made for a tria l on the  fol­
lowing Monday (T. 38). W arrants w ere neither served 
nor w ere Petitioners taken into custody (T. 38, 39 ). I t can 
hardly be said tha t Petitioners w ere victim ized by op­
pressive S tate action under these circumstances.

The S tate Trespass S tatu te under which Petitioners were 
convicted is declaratory of the undoubted common law



6

righ t of an owner of property  to eject any person who 
shall enter his p rivate property or rem ain thereon w ithout 
his permission and provides for crim inal enforcem ent 
thereof. Bell v. State, 227 Md. 302, 176 A. 2d 771; W illiam s 
v. Howard Johnson’s Restaurant, 268 F. 2d 845. The righ t 
of a person to protect his property, including business 
property, necessarily includes the righ t to eject persons 
trespassing thereon. A t common law  the  occupant of any 
house, store, or other building has the legal right to con­
tro l and perm it whom he pleases to enter and rem ain there 
and he also has the  righ t to expel from  the room or build­
ing anyone who abuses the privilege w hich has been given 
him. Therefore, w hile the en try  by a person on the  prem ­
ises of another may be law ful by reason of an implied in­
vitation, his failure to depart a t the request of the  owner 
will make him  a trespasser and w ill justify  the  owner in 
using reasonable force to eject him. 4 Am. Jur., Assault 
and Battery, Section 76, page 167; American Law Institute, 
Restatem ent, Torts, Section 77; cases collected in 9 A.L.R. 
379, “Right to Eject Customers from  Store;” M artin v. 
Struthers, 319 U.S. 141.

To prohibit the State through its inherent police power 
and its law enforcem ent officials to assist the  ow ner of 
private property to forcibly eject trespassers (i.e, persons 
unlaw fully rem aining on the private prem ises) would sub­
ject the ow ner to the  onus of employing his own means 
to achieve this purpose should he wish to do so. The vio­
lence which could resu lt in some parts of the country is 
hardly  a desirable social solution in these racial rights 
controversies. The conduct of the parties in this M aryland 
case was unusual and, we submit, exem plary.

The Petitioners contend tha t a restaurant, such as 
Hooper’s, is so “affected w ith the public in terest” tha t its 
righ t to choose its clientele, however discriminatory, can-



7

not be enforced w hen such discrim ination is based upon 
race alone (Petition, page 13). In  support of this proposi­
tion Petitioners have cited no cases involving restaurants. 
Garner v. Louisiana, 368 U.S. 157, involving a departm ent 
store lunch counter, was decided on other grounds. M unn 
v. Illinois, 94 U.S. 113, involves ra te  regulation of a public 
u tility  and is not germ ane to restaurants. In fact, the Su­
prem e Court has refused to hold tha t w here a privately- 
owned restau ran t is involved, in the absence of the  general 
taxpaying public’s ownership of the  facilities, or in ter­
state  commerce, th a t the Suprem e Court will extend Fed­
eral protection against racial discrim ination on the basis 
of the Fourteenth Amendment. Burton v. W ilm ington  
Parking A uthority, 365 U.S. 715; Boynton v. Virginia, 364 
U.S. 454.

Petitioners have cited the case of Shelley v. Kraemer, 
supra, in support of the  Petition. That case, however, in­
volved unw arranted  restra in t upon the  alienation and use 
of real property solely on the basis of race. The facts in 
the instant case do not involve the denial to the Petitioners 
of any rights of property  and, therefore, these cases are 
not in conflict.

III.
THERE IS NO CONFLICT BETWEEN THIS CASE AND DECISIONS 

OF THE SUPREME COURT SECURING THE RIGHT OF FREEDOM 
OF SPEECH AND ASSEMBLY UNDER THE FIRST AND FOUR­
TEENTH AMENDMENTS OF THE CONSTITUTION.

Petitioners have cited no case tha t extends Federal pro­
tection of freedom of speech and assembly to an unpriv­
ileged dem onstration in the interior of a privately-owned 
restau ran t on privately-owned property. The Supreme 
Court has not gone tha t far. The picketing cases cited by 
Petitioners involve the special field of labor relations, which



8

is necessarily concerned w ith  the  rights of individual em­
ployees who have, depending on the circumstances, an 
implied license to dem onstrate as a part of bargaining 
activities on the  private premises of the em ployer by reason 
of the ir contract of employment. There is no such relation­
ship betw een the  Petitioners and the owners of this restau­
ran t. Marsh v. Alabama, 326 U.S. 501, involves religious 
solicitation on the streets of a company town, which can 
hard ly  be considered analogous; nor should the court be 
im pressed w ith  the  analogy of picketing in  the  Pennsyl­
vania Railroad Station in New York City, hardly  a quiet 
dining room. People v. Barisi, 86 N.Y.S. 2d 277.

In  M artin v. Struthers, supra, a t page 147, Mr. Justice 
Black stated as follows:

“Freedom  to d istribute inform ation to every citizen 
w herever he desires to receive it is so clearly vital to 
the  preservation of a free society that, putting  aside 
reasonable police and health  regulations of tim e and 
m anner of distribution, it m ust be fu lly  preserved. 
The dangers of distribution can so easily be controlled 
by traditional legal m ethods, leaving to each house­
holder the  full righ t to decide w hether he w ill receive 
strangers as visitors, tha t stringent prohibition can 
serve no purpose but tha t forbidden by the  Constitu­
tion, the  naked restriction of the dissemination of ideas.

“Traditionally the Am erican law punishes persons 
who enter onto the property of another after having 
been warned by the owner to keep off. G eneral tres­
pass after w arning statutes exist in a t least tw enty  
states, w hile sim ilar statutes of narrow er scope are 
on the books of at least tw elve states more. We know 
of no state which, as does the S tru thers ordinance in 
effect, makes a person a crim inal trespasser if he enters 
the  property of another for an innocent purpose w ith­
out an explicit command from the owners to stay 
away.” (Emphasis supplied.)



9

Applying this dicta to the facts of this case, the record 
indicates tha t the  restau ran t owner was not only fully 
apprised of Petitioners message as evidenced by their 
actions as well as words, bu t th a t he indicated tha t he 
wished them  to leave. Furtherm ore, by the tim e the police 
had arrived, there w ere no more customers present in the 
dining room and pickets w ere parading outside of the 
restaurant. U nder these circumstances it can hardly be 
said th a t Petitioners’ rights of expression w ere violated by 
th e ir trespass conviction. In addition, according to the 
testim ony of their leader, Petitioners expected to be ar­
rested, and the  tria l court could well have found under 
these circumstances th a t their arrest was a part of their 
expression of their cause and enhanced the  publicity given 
thereto (T. 46, 48, 55, 56).

“Q. Now, Mr. Quarles, you rem ained even though 
you knew  you w ere going to be arrested? A. Yes, sir.

“Q. Is th a t part of your technique in these demon­
strations? A. Yes, sir” (T. 55, 56).

For the  foregoing reasons, it is subm itted tha t neither 
does the  M aryland Court of Appeals’ decision conflict w ith 
decisions of the  Suprem e Court securing the right of free­
dom of expression, nor was the M aryland Court in error in 
affirming Petitioners’ conviction on this ground.

IV.
THE DECISION BELOW DOES NOT CONFLICT WITH DECISIONS 

OF THIS COURT BARRING CONVICTIONS UNDER CRIMINAL 
STATUTES WHICH GIVE NO FAIR WARNING THAT PETITIONERS’ 
CONDUCT WAS PROHIBITED.

The point is raised for the first tim e in the petitions and 
was neither raised in the  tria l court nor in the  M aryland 
Court of Appeals. According to the transcript, inter alia, 
the  leader of the Petitioners, Quarles, fully understood the



10

m eaning of the trespass sta tu te  and recognized th a t P eti­
tioners w ere to be arrested if they rem ained in th e  restau­
ran t after being told to leave and having the Trespass 
S tatu te  read to them  (T. 53, 54, 55, 56, 58).

The statu te  under which Petitioners w ere convicted is 
a general trespass statute, of the type referred  to in Martin  
v. Struthers, supra , as being on the  books of at least tw enty 
states, w hile sim ilar statu tes of narrow er scope are on the 
books of a t least tw elve more. See n. 10, a t page 147, 
M artin v. Struthers, 319 U.S. 141. The statu te was enacted 
in 1900, and has never been found to be so vague and 
indefinite as to fail to apprise a violator of prohibited acts 
thereunder.

CONCLUSION
W herefore, for the foregoing reasons, th e  S tate  of M ary­

land respectfully submits th a t the  Petition for W rit of 
C ertiorari should be denied.

Respectfully submitted,

T h o m a s  B . F in  a n ,
A ttorney General,

L oring  E. H a w e s ,
A ssistant A ttorney General,

10 Light Street,
Baltim ore 2, Md.,

F or Respondent.



11

APPENDIX

B a ltim o re  C ity  Ordinance N o . 1249, J u n e  8, 1962.

S ection  1. Be it ordained by the Mayor and City Council 
of Baltimore, That Sections 8, 9, 11 and 12 of Article 14A 
of the  Baltim ore City Code (1950 Edition), title  “H um an 
Relations,” sub-title “Baltim ore Equal Employment Oppor­
tun ity  Commission,” as said sub-title was ordained by 
O rdinance No. 379, approved A pril 18, 1956, and amended 
by Ordinance No. 409, approved Ju ly  6, 1960, be and they 
are hereby repealed and re-ordained, w ith amendments; 
th a t a new Section 10A be and it is hereby added thereto, to 
follow im m ediately after Section 10 thereof; tha t the name 
of the sub-title be and it is hereby changed to “Baltimore 
Equal O pportunity Commission,” and all to read as fol­
lows:

8. The Mayor and City Council of Baltim ore finds tha t 
the population of this city is composed of peoples of many 
divers racial, religious and other ethnic groups. The prac­
tice of discrim ination in employment against members of 
these groups and the consequent failure to utilize the pro­
ductive capacities of individuals to their fullest extent 
deprives large segments of the population of this city of 
earnings necessary to m aintain decent standards of living, 
necessitates their resort to public relief and intensified 
racial, religious and ethnic intolerance thereby resulting 
in grave in ju ry  to the public health  and welfare. The 
practice by divers places of public accommodation of re­
fusing to accommodate and serve members of these groups 
also tends to exacerbate intergroup relations thereby im­
pairing the public welfare. It is hereby declared to be the



12

public policy of this City to foster the  em ployment of all 
persons in accordance w ith the ir fullest capacities, and to 
accommodate and serve persons in divers places of public 
accommodation, regardless of the  race, color, religion, 
ancestry or national origin of such persons.

9. . . . The term  “place of public accommodation” in­
cludes a hotel, motel, inn or restaurant, m eaning establish­
ments commonly known or recognized as regularly  engaged 
in the business of providing sleeping accommodations, or 
serving meals, or both for a consideration, and which are 
open to the  general public. The term  “place of public ac­
commodation” does not apply to those establishm ents 
commonly known and recognized as boarding houses or 
rooming houses, to lunch counters or refreshm ent stands 
m aintained in places of recreation or am usem ent such as 
bowling alleys, billiard halls, or swimming pools. Also the  
term  “place of public accommodation” does not apply to 
those establishm ents dealing in alcoholic beverages w here 
the average daily receipts of the sale of alcoholic beverages 
exceeds the average daily receipts of the sale of food nor 
to tha t p a rt or parts of such restau ran t establishm ents 
which part or parts are prim arily  devoted to the sale of 
alcoholic beverages.

The term  “commission” means the Baltim ore Equal 
O pportunity Commission created herein.

10A. An owner or operator of a place of public accom­
modation or an agent or employee of said owner or operator 
shall not, because of the race, color, creed or national origin 
of any person, refuse, w ithhold from, or deny to such per­
son any of the  accommodations, advantages, facilities and 
privileges of such place of public accommodation.



V... . V