Green v. Virginia Petition for Writ of Certiorari to the Supreme Court of Appeals of Virginia

    I n  t h e

Olmtrt of %  lotted
October Term 1963 

No................

R eginald M. Green, H arry L. Snead, A ndre P. Smith 
and W illie P . R ucker,

Petitioners,
— y .— .

V irginia.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

J ack Greenberg 
J ames M. Nabrit, III 
Michael Meltsner 

10 Columbus Circle 
New York 19, New York

R oland D. E aley

420 North First Street 
Richmond, Virginia

Attorneys for Petitioners



I N D E X

Citation to Opinions Below ........................................... 1

Jurisdiction ................... - .......... —-...............................  2

Questions Presented ................ - ................................... 2

Constitutional and Statutory Provisions Involved....... 3

Statement ................................................................... —- 5

How the Federal Questions Were Raised and Decided 
Below ............................ -............................... ..............  7

Argument ...........................................................................  9

I. The State by Reason of Statutes Requiring 
Segregation at “Any Place of . . . Public Assem­
blage” Was Involved to a Significant Extent in 
the Refusal to Serve Negro Petitioners ..........  9

II. Petitioners’ Convictions Enforce Racial Dis­
crimination in Violation of the Fourteenth 
Amendment to the Constitution of the United 
S tates....................................................................  12

Conclusion.................................................................................  15

A ppendix :

Denial of Writ of Error
(Reginald M. Green) ................................................  17

Denial of Writ of Error
(Harry L. Snead) .................................................   18

PAGE



Denial of Writ of Error
(Andre P. Smith) ..................................................

Denial of Writ of Error
(Willie F. Bucker) ..................................................  20

T able oe Cases :

Barr v. City of Columbia, No. 9, October Term, 1963 .... 12
Bell v. Maryland, No. 12, October Term, 1963 .............. 12
Blackwell v. Harrison, 221 F. Supp. 651 (E. D. Va.

1963) ......................................................... -............ . 9
Bouie v. City of Columbia, No. 10, October Term, 1963 .. 12
Brown v. City of Biehmond, —— Va. ----- , 132 S. E.

2d 495 .......................................... -......-....................... 9> 1°

Carter v. Texas, 177 U. S. 442 .....................................  12
Child Labor Tax Case, 259 IT. S. 2 0 ............................  13

Edwards v. South Carolina, 372 U. S. 229 — .............  11

Gantt y. Clemson Agricultural College of South Caro­
lina, 320 F. 2d 611 (4th Cir. 1963) ......................... U

Garner v. Louisiana, 368 U. S. 157................................ 13
Griffin v. Maryland, No. 6, October Term, 1963 ..........  12

Henry v. Virginia, 374 H. S. 98 .......... .........................  10

Johnson v. Virginia, 373 U. S. 61...................................  13

Lombard v. Louisiana, 373 H. S. 267 .........................11,12

N A A CP v. Button, 371 H. S. 415.................................... 13
NAACP v. Patty, 159 F. Supp. 503 (E. D. Va. 1958) .... 13 
Nash v. Air Terminal Services, 85 F. Supp. 545 (E. D.

Va. 1949)

11

PAGE

10



Peterson v. City of Greenville, 373 U. S. 244 .......... 10,11

Randolph v. Virginia, 374 U. S. 97 ................................  10
Robinson v. Florida, No. 60, October Term, 1963 ..........  12

Shelley v. Kraemer, 334 U. S. 1 ................................12,13

Thompson v. Virginia, 374 U. S. 99 ............................  10
Trustee of Monroe Avenue Church of Christ v. Perkins,

334 IT. S. 813 .............................. .................................  12

Williams v. Howard Johnson Restaurant, 268 F. 2d
845 (4th Cir. 1959) ..................................................  10

Winters v. New York, 333 IT. S. 507................................  11
Wood v. Virginia, 374 U. S. 100...................................  10

Statutes and Constitutional P rovisions I nvolved :

28 United States Code §1257(3) .......... .........................  2
Constitution of Virginia §140 .......................................  13
Code of Virginia, 1960, §18.1-173 ................................  3, 5
Code of Virginia, 1960, §18.1-356 ................. 3, 4, 8, 9,10,13
Code of Virginia, 1960, §18.1-357 .........................8, 9,10,13
Code of Virginia, 1960, §20-54 .................................... 13
Code of Virginia, 1960, §22-221 .....................................  13
Code of Virginia, 1960, §37-183 .....................................  13
Code of Virginia, 1960, §38-1597 ...................................  13
Code of Virginia, 1960, §53-42 ..................................... . 13
Code of Virginia, 1960, §56-196 .................................... 13
Code of Virginia, 1960, §56-326 ...................................  13

Ill

PAGE



Other  A uthorities :
PAGE

Henkin, “Shelley v. Kraemer: Notes for a Revised 
Opinion,” 110 U. Pa. L. Rev. 473 (1962) .................  14

Opinion of the State Attorney General to the Common­
wealth Attorney of the City of Roanoke, Aug. 24, 
1960, 5 Race Rel. L. Rep. 1282 (1960) .....................  10



I n  t h e

(£mxt ni tljT BIuUb
October Term 1963 

No................

R eginald M. Green, H arry L. Snead, A ndre P. Smith 
and W illie P. R ucker,

Petitioners,
— Y,—

V irginia.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Petitioners pray that a writ of certiorari issue to review 
the judgments of the Supreme Court of Appeals of Virginia, 
entered in the above-entitled cases October 17, 1963.

Citation to Opinions Below

The opinions and judgments or orders of the Supreme 
Court of Appeals are not reported and are set forth in the 
appendix hereto, infra, pp. 17-20. The Hustings Court of 
the City of Richmond entered judgment without opinion 
(Tr. 33).1

1 Citations are to the typewritten transcript of proceedings in 
the Hustings Court of the City of Richmond.



2

Jurisdiction

The judgments of the Supreme Court of Appeals of Vir­
ginia were entered October 17, 1963, infra, pp. 17-20.

The jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1257(3), petitioners having asserted below and 
asserting here deprivation of rights secured by the Consti­
tution of the United States.

Questions Presented

Were Negro sit-in demonstrators’ rights under the Four­
teenth Amendment violated by conviction of trespass for 
having remained at a restaurant counter in disregard of 
orders to leave where:

(1) The decision not to serve petitioners was removed 
from the sphere of private choice by state statutes requiring 
racial segregation at “any place of . . . public assemblage” ;

(2) The trial court refused to permit petitioners to de­
velop evidence of the reasons they were ordered to leave 
the restaurant;

(3) The state has used its judicial machinery to enforce 
racial discrimination, where the discrimination was caused 
at least in part by a segregation custom substantially sup­
ported by state laws, and where the state’s regime of laws 
has failed to protect petitioners’ claim to equality by sub­
ordinating it to a narrow and technical claim of property 
right to racially discriminate in a place of public accommo­
dation?



3

Constitutional and Statutory Provisions Involved

1. This case, involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case involves Section 18.1-173 of the Code of 
Virginia:

Trespass after having teen forbidden to do so.—If 
any person shall without authority of law go upon or 
remain upon the lands, buildings or premises of an­
other, or any part, portion or area thereof, after having 
been forbidden to do so, either orally or in writing, by 
the owner, lessee, custodian or other person lawfully in 
charge thereof, or after having been forbidden to do so 
by a sign or signs posted on such lands, buildings, 
premises or part, portion or area thereof at a place 
or places where it or they may be reasonably seen, he 
shall be deemed guilty of a misdemeanor, and upon 
conviction thereof shall be punished by a fine of not 
more than one thousand dollars or by confinement in 
jail not exceeding twelve months, or by both such fine 
and imprisonment.

3. This case involves also §18.1-356 of the Code of Vir­
ginia :

Duty to separate races at public assemblages.—Every 
person, firm, institution or corporation operating, main­
taining, keeping, conducting, sponsoring or permitting 
any public hall, theatre, opera house, motion picture 
show or any place of public entertainment or public 
assemblage which is attended by both white and colored 
persons shall separate the white race and the colored 
race and shall set apart and designate in each such 
public hall, theatre, opera house, motion picture showT



4

or place of public entertainment or public assemblage 
certain seats therein to be occupied by white persons 
and a portion thereof, or certain seats therein, to be 
occupied by colored persons, and any such person, firm, 
institution or corporation that shall fail, refuse or 
neglect to comply with the provisions of this section 
shall be guilty of a misdemeanor and upon conviction 
thereof shall be fined not less than one hundred dollars 
nor more than five hundred dollars for each offense.

4. This case involves also §18.1-356 of the Code of Vir­
ginia :

Failure to take space assigned in pursuance of pre­
ceding section.—Any person who fails, while in any 
public hall, theatre, opera house, motion picture show 
or place of public entertainment or public assemblage, 
to take and occupy the seat or other space assigned to 
them in pursuance of the provisions of the preceding 
section by the manager, usher or other person in charge 
of such public hall, theatre, opera house, motion picture 
show or place of public entertainment or public assem­
blage or whose duty is to take up tickets or collect the 
admission from the guests therein, or who shall fail to 
obey the request of such manager, usher or other per­
son, as aforesaid, to change his seat from time to time 
as occasion requires, in order that the preceding section 
may be complied with, shall be deemed guilty of a 
misdemeanor and upon conviction thereof shall be fined 
not less than ten dollars nor more than twenty-five dol­
lars for each offense. Furthermore such person may be 
ejected from such public hall, theatre, opera house, 
motion picture show or other place of public entertain­
ment or public assemblage by any manager, usher or 
ticket taker, or other person in charge of such public



5

hall, theatre, opera house, motion picture show or place 
of public entertainment or public assemblage, or by a 
police officer or any other conservator of the peace, 
and if such person ejected shall have paid admission 
into such public hall, theatre, opera house, motion pic­
ture show or other place of public entertainment or 
public assemblage, he shall not be entitled to a return 
of any part of the same.

Statement

Petitioners, four Negro students at Virginia Union Col­
lege, were tried together and convicted2 in the Hustings 
Uourt of the City of Richmond, sitting without a jury, 
February 25, 1963, of violating Section 18.1-173 of the Code 
of Virginia in that they remained “upon the premises of 
National White Tower System, Incorporated . . . after 
having been forbidden to do so.” 3

At approximately 10:30 to 11:00 p.m. on the 8th of Janu­
ary, 1963, petitioners seated themselves at the counter of 
a White Tower restaurant in Richmond, Virginia (Tr. 4). 
They were approached by the restaurant supervisor, who 
“told them that they would not be served and to please 
leave. They refused” (Tr. 4). He called the Richmond 
Police Department (Tr. 5), and in the presence of police 
officers told petitioners to leave (Tr. 5), but he did not

2 Petitioners were tried and convicted in one proceeding in the 
Hustings Court (Tr. 3). They received identical sentences and 
filed joint Notice of Appeal and Assignments of Error (Tr. 33). 
On appeal to the Supreme Court of Appeals of Virginia, each 
petitioner filed separate, though identical, Petitions for Writ of 
Error and the Petitions were denied by the Supreme Court of 
Appeals in four separate, though identical, orders, infra, pp. 17-20.

3 See the “original warrants” in the Hustings Court.



6

inform petitioners of the reason he was asking them to 
leave (Tr. 8).

The restaurant was open for business and white cus­
tomers were present and being served at the time, but only 
Negroes were asked to leave (Tr. 7, 10, 28). The restaurant 
was not crowded (Tr. 8) and petitioners were not disorderly 
(Tr. 8) or “anything like that” (Tr. 8, 9). There was “no 
disorderly conduct on the part of anyone” (Tr. 17).

The arresting officer, Frank Duling, testified he “received 
information there was a set-in (sic) demonstration” (Tr. 
13) and arrived at the White Tower to find “15 colored 
males inside the White Tower” (Tr. 13). The restaurant 
supervisor told Duling that the Negroes had been told to 
leave and asked Duling to ask them to leave (Tr. 13). 
“Then,” according to Duling, the supervisor “went to each 
individual sitting there and made the following statement: 
‘I am George Polhemus. I am manager of this restaurant. 
You will not be served here, please leave’ ” (Tr. 14). Some 
of the Negroes left the restaurant, but petitioners Smith, 
Snead and Rucker made no move to leave and were arrested 
(Tr. 14).

Petitioner Green was “just standing there” and Duling 
“did not see Mr. Green sitting at the counter at any time.” 
But Duling asked Green if he was going to leave and Green 
replied that “no one had asked him to leave” (Tr. 14). 
Green was then told to leave by the supervisor (Tr. 14, 15). 
He requested to speak to Smith, Snead and Pucker (Tr. 15) 
and was told “if he did not leave, as requested by the man­
ager, that he, too, would be arrested.” When he did not 
leave, he was placed under arrest (Tr. 15).

The trial judge repeatedly refused to permit petitioners’ 
counsel to inquire into the reasons petitioners were refused 
service and asked to leave (Tr. 7, 9,10,11,12,18, 25). When



7

counsel asked the supervisor why he would not serve peti­
tioners, objection was sustained on the ground that:

That is immaterial to the case. The question is whether 
they were in violation of orders of the supervisor (Tr. 
7).

Although “no one” was disorderly (Tr. 17) and the arrest­
ing officer testified that he was called to the White Tower 
because of a “set-in (sic) demonstration” (Tr. 13), the 
manager was not permitted to state if there “was any reason 
why you would not serve them other than they are 
Negroes?” (Tr. 9). The city attorney took the position that 
the reason they were asked to leave was immaterial for 
the reason that “they were told to leave and there was no 
reference to race . . . ” (Tr. 25) and the rulings of the 
trial court were in accord with this position (Tr. 7, 9,10, 11, 
12, 18, 25).

Petitioners were found guilty and fined $10 each and 
costs (Tr. 33).

Petitioners filed timely petitions and supplemental peti­
tions for writ of error in the Supreme Court of Appeals 
of Virginia, These petitions were denied October 17, 1963, 
infra, pp. 17-20. Denial of writ of error by the Supreme 
Court of Appeals has the effect of affirming the judgment 
of the trial court, Ibid.

How the Federal Questions Were 
Raised and Decided Below

At the conclusion of the state’s evidence in the trial 
court and again prior to judgment, petitioners moved to 
strike the evidence against them on the ground that con­
viction on the evidence adduced would place the authority 
of the state behind private prejudice (Tr. 19-21, 30-32).



8

These motions were overruled (Tr. 21, 33). Petitioners’ 
counsel also sought unsuccessfully to develop evidence of 
the reason petitioners were refused service (Tr. 7, 9, 10, 
11, 12, 18, 25).

Petitions and supplementary petitions (filed with leave 
of Court) for writ of error raised the question under the 
Fourteenth Amendment

whether a concern licensed to do business with the 
general public can legally, after inviting members of 
the general public into the store, order them to leave 
such establishment when such invitees are not disor­
derly and do not violate any law; and if so . . . whether 
the State can legally enforce such private discrimina­
tion where such discrimination is based upon race and 
color.

Petitioners also claimed violation of Fourteenth Amend­
ment rights in that the trial court erred by “repeatedly 
refusing to permit defendants to inquire into the reasons 
why defendants were not served and were ordered out of 
the public eating place.”

Petitioners also claimed violation of Fourteenth Amend­
ment rights in that state statutes compelled racial discrim­
ination on the part of the restaurant:4

Code of Virginia, 1960 Replacement Volume, Sec. 
18.1-356 and 18.1-357 supports the policy of racial 
segregation enforced by the restaurant. Sec. 18.1-356 
and 18.1-357 require segregation and removed the deci­
sion of the restaurant manager from the sphere of 
private choice. Defendants’ convictions were, there­
fore, obtained in violation of the due process clause

4 See Supplemental Petitions for Writ of Error.



9

and the equal protection clause of the Fourteenth 
Amendment to the Constitution of the United States. 
(Emphasis: supplied.)

October 17, 1963, the Supreme Court of Appeals denied 
petitions for writ of error on the ground that the judgment 
of the trial court was “plainly right,” infra, pp. 17-20. The 
Court stated the effect of denial “is to affirm the judgment 
of the said Hustings Court,”. Ibid.

A R G U M E N T

I.
The State by Reason of Statutes Requiring Segrega­

tion at “Any Place of . . . Public Assemblage” Was In­
volved to a Significant Extent in the Refusal to Serve 
Negro Petitioners.

At the time petitioners were refused service and ordered 
to leave the restaurant, January 8, 1963, Virginia law pro­
vided criminal penalties for failure to observe racial seg­
regation at “any place of . . . public assemblage.” Code of 
Virginia, 1960, §§18.1-356 and 18.1-357. These penalties ap­
plied to the enterprise at which failure to observe seg­
regated seating took place, §18.1-356 and to persons failing 
to observe segregated seating arrangements, §18.1-357. 
These statutes were declared unconstitutional by the Su­
preme Court of Appeals of Virginia September 11, 1963,
Brown v. City of Richmond, -----  V a .----- , 132 S. E. 2d
495 ;5 see also Blackwell v. Harrison, 221 F. Supp. 651 
(E. D. Va. 1963).

5 Petitioners’ convictions were affirmed October 17, 1963, infra, 
pp. 17-20.



10

The application of §§18.1-356 and 18.1-357 to restau­
rants is not a question to which the Supreme Court of 
Appeals has addressed itself.6 The opinion of that Court 
in Brown v. City of Richmond, supra, did not discuss the 
question. One federal court, however, has found restaurant 
segregation compelled by the statutes, Nash v. Air Terminal 
Services, 85 F. Supp. 545 (E. D. Va. 1949); another federal 
court, on concession of a party, has proceeded on the as­
sumption that it was not, Williams v. Howard Johnson 
Restaurant, 268 F. 2d 845 (4th Cir. 1959).7

It is settled that if petitioners had been asked to leave 
the restaurant by reason of the command of these statutes, 
their convictions for trespass could not stand under the 
Fourteenth Amendment, Peterson v. City of Greenville, 373 
U. S. 244:

When the State has commanded a particular result it 
has saved to itself the power to determine that result 
and thereby “to a significant extent” has “become in­
volved” in and, in fact, has removed that decision from 
the sphere of private choice.

6 This Court vacated judgments in light of Peterson v. Green­
ville, supra, in Randolph v. Virginia, 374 U. S. 97; Henry v. Vir­
ginia, 374 TJ. S. 98; Thompson v. Virginia, 374 U. S. 99; Wood v. 
Virginia, 374 U. S. 100, prior to the judgment affirming peti­
tioners’ conviction here, but the Supreme Court of Appeals has 
not taken any action on the remand of these cases.

7 The Attorney General of Virginia (in response to an inquiry 
from a municipality that still, it seems, desired to enforce the 
segregation laws in accordance with their just construction) gave 
it as his opinion that the statute did not require restaurant segre­
gation, but he relied wholly on the rule of ejusdem generis, hardly 
a satisfying guide for a restaurant manager. Opinion of the State 
Attorney General to the Commonwealth Attorney of the City of 
Roanoke, Aug. 24, 1960, 5 Race Relations Law Reporter 1282 
(1960).



11

And this is true “even assuming . .. that the manager would 
have acted as he did independently of the existence of the 
Ordinance” for the “convictions had the effect, which the 
state cannot deny, of enforcing the Ordinance . . . ” Peter­
son, supra.

In Lombard v. Louisiana, 373 U. S. 267, there was no 
segregation provision but “evidence tended to indicate that 
the store officials’ actions were coerced by the city” and, 
therefore, the “city must be treated exactly as if it had an 
ordinance prohibiting such conduct.” Lombard, supra.
- Applicable to “any place of-. . . public assemblage,” there 

is no reason why these statutes should not be read to compel 
restaurant segregation. This Court need not, however, re­
solve the question, for it is clear that restaurant proprie­
tors might reasonably believe segregation required by the 
broad language of these statutes, and consequently conform 
their conduct to them. Such a result would be “coercion,” 
Lombard, supra, sufficient to invoke the Fourteenth Amend­
ment.

Regardless of whether §§18.1-356 and 18.1-357 of the Code 
of Virginia compel restaurant segregation, as in Peterson, 
or coerce it, as in Lombard, petitioners’ convictions cannot 
stand. At the very least the uncertainty of the. reach of 
these broad provisions is sufficient to encourage segregation 
and withdraw the decision to serve or not to serve Negroes 
from the purely private sphere. Cf. Gantt v. Clemson Agri­
cultural College of South Carolina, 320 F. 2d 611, 613 (4th 
Cir. 1963). In this respect these provisions are like any 
statutes which due to vagueness and ambiguity may throttle 
protected conduct. See e.g., Winters v. New York, 333 U. S. 
507; Edwards v. South Carolina, 372 IT. S. 229.

Doubts as to the application of these statutes must be 
resolved in favor of petitioners, for here, as in Lombard v.



12

Louisiana, supra, “the evidence of coercion was not fully 
developed because the trial judge forbade petitioners to ask 
questions directed to that very issue.” Petitioners’ counsel 
was thwarted repeatedly in his efforts to ascertain the rea­
sons for the failure to serve petitioners (Tr. 7, 9, 10, 11, 
12, 18, 25). Denial of the opportunity to establish violation 
of a constitutional right is itself denial of a constitutional 
right. Carter v. Texas, 177 TJ. S. 442.

II.
Petitioners’ Convictions Enforce Racial Discrimination 

in Violation of the Fourteenth Amendment to the Con­
stitution of the United States.

This petition presents for decision issues identical to 
those pending before this Court in Barr v. City of Columbia, 
No. 9, October Term, 1963; Bouie v. City of Columbia, 
No. 10, October Term, 1963; Bell v. Maryland, No. 12, 
October Term, 1963; Robinson v. Florida, No. 60, October 
Term, 1963; Griffin v. Maryland, No. 6, October Term, 1963. 
Those cases and this raise the question of a state’s consti­
tutional responsibility for acts of racial discrimination en­
forced by criminal convictions. Where a petition for cer­
tiorari presents questions identical with, or similar to, 
issues already pending before this Court in another case 
in which certiorari has been granted, the issues involved 
in the petition are obviously appropriate for review by 
certiorari. Compare Trustee of Monroe Ave. Church of 
Christ v. Perkins, 334 U. S. 813, with Shelley v. Kraemer, 
334 U. S. 1.

Petitioners’ convictions enforce racial discrimination in 
violation of the Fourteenth Amendment. This record shows 
racial discrimination despite the refusal of the trial judge 
to permit petitioners to develop evidence that race was



13

the reason they were ordered to leave the restaurant. The 
arresting officer testified that he was called to the restau­
rant because of a “set-in (sic) demonstration.” It is well- 
known and commonly understood that a “sit-in” is a peace­
ful attempt by Negroes to obtain service at restaurants 
or other business enterprises which maintain a policy of 
racial exclusion or segregation. Gamer v. Louisiana, 368 
U. S. 157, 193 (Mr. Justice Harlan concurring). Upon ar­
riving the arresting officer found “fifteen colored males” 
and only they (not white patrons) were ordered to leave. 
Despite the failure of the trial judge to permit evidence 
which would develop the precise reasons for the exclusion 
of petitioners, it is plain from this record that petitioners 
were excluded for their race. Cf. Child Labor Tax Case, 
259 U. S. 20, 37.

The state is constitutionally responsible for racial dis­
crimination under three related theories urged by peti­
tioners :

First, the use of state judicial machinery to convict peti­
tioners of a crime is a use of state power in the Fourteenth 
Amendment sense. Shelley v. Kraemer, 334 U. S. 1 is 
applicable and cannot properly be distinguished.

Second, state action is involved because the acts of dis­
crimination were casually related at least in part to a 
segregation custom which law has substantially supported. 
See e.g. Code of Virginia, §§18.1-356 and 18.1-357; NAACP 
v. Button, 371 U. S. 415; Johnson v. Virginia, 373 U. S. 61; 
NAACP v. Patty, 159 F. Supp. 503 (E. D. Va. 1958).8 State

8 In Virginia whites and Negroes may not study together (Const, 
of Va. §140; Code of Va., I960, §22-221), marry one another (Code 
of Va., 1960, §20-54), go to prison together (Code of Va., 1960, 
§53-42), join a fraternity together (Code of Va., 1960, §38.1-597), 
go together to the hospital for feebleminded (Code of Virginia, 
1960, §37-183), wait for an airplane together (Code of Va. 1960, 
§56-196), get on a bus together (Code of Va., 1960, §56-326).



14

action is causally traceable into the discrimination prac­
ticed here. Segregation is all one piece; when the state 
holds up the edifice at a hundred points by law, it is surely 
contributing to its standing up even at the points where 
the law does not directly take hold. Moreover, the state 
has not shown a contrary, and the burden of proving other­
wise should rest on the state in the circumstance of this 
case.

Finally, state power is involved to a significant degree 
in that the state’s regime of laws fails to furnish protection 
to petitioners by subordinating their claimed rights to 
equality to a narrow and technical property claim. The 
state’s role is not neutral; it has preferred the discrim­
inator’s insubstantial property claim to the petitioners’ 
claim of equality. The Fourteenth Amendment overrides 
this state power, for equal protection of the laws requires 
the states to protect a claim of equality in such circum­
stances.

The theories of state action urged above may be limited 
in their incidents by an interpretation of the substantive 
meaning of the equal protection clause which recognizes 
other constitutional demands. Thus, the personal and pri­
vate life of individuals need not be subjected to Fourteenth 
Amendment norms. Petitioners do not urge that no state 
action is needed under the Fourteenth Amendment, but 
rather that because it is usually present, a substantive rule 
applying the equal protection clause to the public life of 
the community is needed. See Henkin, “Shelley v. Kraemer: 
Notes for a Revised Opinion,” 110 U. Pa. L. Rev. 473 (1962).



15

CONCLUSION

W h e r e f o r e , f o r  th e  fo r e g o in g  re a s o n s ,  p e t i t io n e r s  p r a y  
t h a t  th e  p e t i t io n  f o r  w r i t  o f  c e r t i o r a r i  be  g r a n te d .

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York 19, New York

R oland D. E aley
420 North First Street 
Richmond, Virginia

Attorneys for Petitioners



a p p e n d ix



17

APPENDIX

Denial of Writ of Error

V irginia :

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Thursday the 17th day of October, 1963.

The petition of Reginald M. Green for a writ of error 
and supersedeas to a judgment rendered by the Hustings 
Court of the. City of Richmond on the 25th day of- February, 
1963, in a prosecution by the Commonwealth against the 
said petitioner for a misdemeanor, having been maturely 
considered and a transcript of the record of the judgment 
aforesaid seen and inspected, the court being of opinion that 
the said judgment is plainly right, doth reject said petition 
and refuse said writ of error and supersedeas, the effect 
of which is to affirm the judgment of the said hustings court.

1 A copy, Teste:

H. F. T urner
Clerk



18

Denial of Writ of Error

V irginia:

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Thursday the 17th day of October, 1963.

The petition of Harry Lee Snead for a writ of error and 
supersedeas to a judgment rendered by the Hustings Court 
of the City of Richmond on the 25th day of February, 1963, 
in a prosecution by the Commonwealth against the said peti­
tioner for a misdemeanor, having been maturely considered 
and a transcript of the record of the judgment aforesaid 
seen and inspected, the court being of opinion that the said 
judgment is plainly right, doth reject said petition and 
refuse said writ of error and supersedeas, the effect of 
which is to affirm the judgment of the said hustings court.

A Copy, Teste:

H. F. T urner
Clerk



Denial of Writ of Error

V irg inia :

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Thursday the 17th. day of October, 1963.

The petition of Andre Pierre Smith for a writ of error 
and supersedeas to a judgment rendered by the Hustings 
Court of the City of Richmond on the 25th day of February, 
1963, in a prosecution by the Commonwealth against the 
said petitioner for a misdemeanor, having been maturely 
considered and a transcript of the record of the judgment 
aforesaid seen and inspected, the court being of opinion 
that the said judgment is plainly right, doth reject said 
petition and refuse said writ of error and supersedeas, the 
effect of which is to affirm the judgment of the said hustings 
court.

A copy, Teste:

H. F. T urner
Clerk



20

Denial of Writ of Error

V irginia :

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Thursday the 17th day of October, 1963.

The petition of Willie Frank Rucker for a writ of error 
and supersedeas to a judgment rendered by the Hustings 
Court of the City of Richmond on the 25th day of February, 
1963, in a prosecution by the Commonwealth against the 
said petitioner for a misdemeanor, having been maturely 
considered and a transcript of the record of the judgment 
aforesaid seen and inspected, the court being of opinion 
that the said judgment is plainly right, doth reject said 
petition and refuse said writ of error and supersedeas, the 
effect of which is to affirm the judgment of the said hustings 
court.

A copy, Teste:

H. F. T urner

Clerk