Ross v Radich Brief in Opposition to Petition for Writ of Certiorari

    i>u;irrmp (Emtrt of tljr Iniirii Stairs
October Term, 1971 

No. 71-1510

In the

H on. David Ross, Administrative Judge of the Criminal 
Court of the City of New York; T he Criminal Court 
of the City of New Y ork; F rank S. H ogan, District 
Attorney, New York County; and George F. McGrath, 
New York City Commissioner of Correction,

—against—
Petitioners,

Stephen Radich,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE SECOND CIRCUIT

Shirley F ingerhood
R ichard G. Green

1270 Avenue of the Americas 
New York, N. Y. 10020 
212 246-8689

Burt Neuborne
84 Fifth Avenue 
New York, N. Y. 10011

Melvin L. W ulf
Lawrence G. Sager 

156 Fifth Avenue 
New York, N. Y. 10010

Attorneys for Respondent



TABLE OF CONTENTS

PAGE

Opinions B elow .................................................................  1

Jurisdiction .......................................................................  1

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

Statutes Involved .............................................................. 2

Statement ...........................................................................  4

Reasons for Denying the W rit .......................................  6

I. There is no important question of Federal law 
and no conflict of decision...................................  6

II. The decision below is clearly correct and in ac­
cordance with applicable decisions of this Court 8

Conclusion ...................................................................................  11

Table oe Cases

Neil v. Biggers,------U.S. — , 40 U.S.L.W. 3410, 3415
(1972) .............................................................................  7

Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960) ...........9-10

People v. Radich, 53 Misc.2d 717, 279 N.Y.S.2d 680 
(Crim. Ct. 1967); 57 Misc.2d 1082, 294 N.Y.S.2d 285 
(App. T. 1968); 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 
N.E.2d 30 (1970) 4



PAGE

Radich v. New York, 400 U.S. 864 (1970); 401 U.S. 531 
(1971); 402 U.S. 989 (1971) .......................................  4, 5

United States ex rel. Biggers v. Neil, 448 F.2d 91 (6th 
Cir. 1971) ...................................................................... 7

Statutes:

Penal Law, New York Section 1425 Snbd. 16(d) (Now 
Gen. Bus. Law, Section 136(d)) .................................  4

28 U.S.C. Section 1254(1) ................................................. 1

2109 ........................................................................2,3, 5,7
2241 et seq............... ..................................................  5

2244(c) ..............................................................2, 5, 6,7,8
U. S. Constitution:

First Amendment......................................................  4

Fourteenth Amendment ...........................................  4

11



In the

£>ttprmp (Hmtrt of the lotteh States
October Term, 1971 

No. 71-1510

H on. David E oss, Administrative Judge of the Criminal 
Court of the City of New York; T he Criminal Court 
of the City of New  Y ork ; F rank S. H ogan, District 
Attorney, New York County; and George F. M cGrath, 
New York City Commissioner of Correction,

—against—
Petitioners,

Stephen E adich,
Respondent.

o n  p e t i t i o n  f o r  w r i t  o f  c e r t io r a r i  t o  t h e  u n i t e d  s t a t e s

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Opinions Below

The opinion of the United States Court of Appeals for 
the Second Circuit (Appendix “A ” of Petition) is not yet 
reported. The opinion of the United States District Court 
for the Southern District (Appendix “B” of Petition) is 
not yet reported.

Jurisdiction

Jurisdiction of this Court is invoked under Title 28 
U.S.C. §1254(1).



2

Questions Presented

1) Whether an equal division of this Court which results 
in an affirmance of a State court conviction is an actual 
adjudication of Federal constitutional issues within the 
meaning of 28 U.S.C. Section 2244(c) and bars considera­
tion of those issues in a habeas corpus proceeding?

2) Whether 28 U.S.C. Section 2109, which requires that 
where the Supreme Court lacks a quorum it affirm the judg­
ment of the court below “with the same effect as upon 
affirmance by an equally divided court,” demonstrates the 
intent of Congress to exclude such affirmances from the 
conclusive presumption given only to actual adjudications 
under 28 U.S.C. 2244(c) ?

Statutes Involved

Section 2244(c) of Title 28 of the United States Code:

(c) In a habeas corpus proceeding brought in behalf 
of a person in custody pursuant to the judgment of 
a State court, a prior judgment of the Supreme Court 
of the United States on an appeal or review by a writ 
of certiorari at the instance of the prisoner of the de­
cision of such State court, shall be conclusive as to all 
issues of fact or law with respect to an asserted denial 
of a Federal right which constitutes ground for dis­
charge in a habeas corpus proceeding, actually ad­
judicated by the Supreme Court therein, unless the 
applicant for the writ of habeas corpus shall plead 
and the court shall find the existence of a material and



3

controlling fact which did not appear in the record of 
the proceeding in the Supreme Court and the court 
shall further find that the applicant for the writ of 
habeas corpus could not have caused such fact to 
appear in such record by the exercise of reasonable 
diligence.

Section 2109 of Title 28 of the United States Code:

If a case brought to the Supreme Court by direct 
appeal from a district court cannot be heard and 
determined because of the absence of a quorum of 
qualified justices, the Chief Justice of the United 
States may order it remitted to the court of appeals 
for the circuit including the district in which the case 
arose, to be heard and determined by that court either 
sitting in banc or specially constituted and composed 
of the three circuit judges senior in commission who 
are able to sit, as such order may direct. The decision 
of such court shall be final and conclusive. In the event 
of the disqualification or disability of one or more of 
such circuit judges, such court shall be filled as pro­
vided in chapter 15 of this title.

In any other case brought to the Supreme Court for 
review, which cannot be heard and determined because 
of the absence of a quorum of qualified justices, if a 
majority of the qualified justices shall be of opinion 
that the case cannot be heard and determined at the 
next ensiling term, the court shall enter its order affirm­
ing the judgment of the court from which the case was 
brought for review with the same effect as upon affirm­
ance by an equally divided court.



4

Statement

Respondent Stephen Radich was convicted in the Crimi­
nal Court of the City of New York on May 5,1967 of casting 
contempt on the American flag in violation of what was 
then Section 1425(16) (d) of the New York Penal Law, 
now Section 136(d) of the New York General Business Law.

Radich’s conviction was based upon an exhibition of 
certain sculptures termed “constructions” in his second 
floor art gallery. People v. Radicli, 53 Misc. 2d 717, 279 
N.Y.S.2d 680 (1967). He was sentenced to pay a $500 
fine or serve 60 days in the workhouse.

The Appellate Term, First Judicial Department, of the 
Supreme Court of the State of New York affirmed without 
opinion (57 Misc. 2d 1082, 294 N.Y.S.2d 285 (1968)). The 
New York Court of Appeals affirmed the conviction on 
February 8, 1970, 26 N.Y.2d 114, 308 N.Y.S.2d 846, by a 
5-2 vote.

Radich then appealed to the Supreme Court of the United 
States on May 18, 1970. Probable jurisdiction was noted 
on October 19, 1970. Radicli v. New York, 400 U.S. 864. 
Before this Court he argued, as he had in the State courts, 
that his conviction violated the First and Fourteenth 
Amendments to the Federal Constitution for reasons, inter 
alia, that the statutory prohibition against casting contempt 
on the flag violated the First Amendment because to “ cast 
contempt” means to communicate an idea or attitude and 
the statute therefore is directed specifically against com­
munication. He also argued that the statute under which 
he was convicted was overbroad and violated the equal 
protection clause.



5

This Court “affirmed by an equally divided Court” , 
Radich v. New York, 401 U.S. 531 (1970), Mr. Justice 
Douglas not participating. Thereafter Eadich applied for 
a writ of habeas corpus in the United States District Court 
for the Southern District of New York pursuant to 28 
U.S.C. §2241 et seq. The Court, by Canella, J., denied re­
lief on the ground that 28 U.S.C. §2244(c) barred federal 
habeas corpus relief because the equally divided Supreme 
Court affirmance of the State court conviction constituted 
an actual adjudication of the merits of the constitutional 
claims then before the District Court.

The United States Court of Appeals for the Second Cir­
cuit granted a stay on January 4, 1972 and reversed the 
District Court’s decision on April 26, 1972. The Court 
held that an affirmance by an equally divided vote was not 
an actual adjudication by the Supreme Court within the 
meaning of §2244(c). The Court of Appeals ruled that the 
Supreme Court was unable to reach a decision on the 
constitutional issues because of its equal division and thus 
the State court’s decision remained in effect because there 
has been no federal adjudication of Eadich’s Federal con­
stitutional rights.

The Court cited another provision of the Judicial Code, 
28 U.S.C. §2109, as corroboration of Congress’s view that 
a 4-4 decision by this Court is not an actual adjudica­
tion of constitutional claims within the purview of §2244(c). 
Section 2109 provides that when a case on review from a 
State court cannot he decided by the Supreme Court be­
cause of the lack of a quorum, “ the court shall enter its 
order affirming the judgment of the court from which the 
case was brought for review with the same effect as upon 
affirmance by an equally divided court.”



6

The Court of Appeals for the Second Circuit reversed 
and remanded to the District Court for consideration of 
the constitutional claims raised by the petition.

REASONS FOR DENYING THE WRIT

I.
There is no important question of Federal law and no 

conflict of decision.

The issue in the present case is, in the words of the Court 
of Appeals, “unlikely to recur” (2a)* and is too narrow to 
warrant review by this Court on certiorari. It can arise 
only in those few cases where a writ of habeas corpus is 
sought by a person whose State court conviction has been 
affirmed as a result of an equal division of this Court. The 
Court below found only six examples of equal division by 
this Court upon appeals from State court convictions since 
1960.

The case does not in any sense broadly concern the 
habeas corpus jurisdiction of the Federal courts. It in­
volves only the application of §2244(c) of the Judicial 
Code, which bars consideration in habeas corpus proceed­
ings of issues which have been actually adjudicated by the 
Supreme Court in a prior appeal by the petitioner, in the 
unusual situation where the Supreme Court has been un­
able to reach a decision on such issues because it is equally 
divided.

To focus precisely on the dimensions of the issue pre­
sented for Supreme Court consideration, it may be pointed

* Numbers in parentheses refer to the Appendix to the petition.



7

out that petitioners ask this Court to decide that its fail­
ure to reach agreement on a case is an actual adjudication, 
or real decision, of the issues presented by the appeal.

There is no conflict of decisions on this narrow issue. 
Two Courts of Appeal—for the Second Circuit in this case, 
and for the Sixth Circuit in Neil v. Biggers, 448 F.2d 91
(6th Cir. 1971) cert, granted------U.S. ------- , 40 U.S.L.W.
3410, 3415 (1972)—have ruled squarely that a 4-4 decision 
is not an actual adjudication of issues within the meaning 
of §2244(c) of the Judicial Code and does not bar a con­
sideration of the same issues in a habeas corpus proceed­
ing.

The writ of certiorari was granted in Neil v. Biggers 
when the District Court decision in respondent’s case was 
pending on appeal to the Court of Appeals. At that time 
there was a possibility of a conflict between decisions of 
Courts of Appeals for the Sixth Circuit and for the Second 
Circuit. That possibility has been eliminated by the deci­
sion below; the circuits are now in accord. Petitioner there­
fore respectfully requests that the Court consider dismiss­
ing the writ of certiorari in Biggers, as well as denying 
the petition herein.*

In addition, the opinion of the Court below in the instant 
case cites a statute, Section 2109 of the Judicial Code, which 
respondent believes was not brought to the attention of 
this Court when it considered the application for a writ 
of certiorari in Biggers. 28 U.S.C. §2109, provides that 
in certain instances when a case on review in the Supreme

* Respondent is, of course, aware that this is not the only issue 
raised in the petition for writ of certiorari in Biggers and accord­
ingly, his request does not relate to the other issue.



8

Court cannot be decided because of the absence of a quorum 
of qualified justices “ the court shall enter its order affirm­
ing the judgment of the court from which the case was 
brought for review with the same effect as upon affirmance 
by an equally divided court.”

The use by Congress of an affirmance by an equally di­
vided Court as the analogy for final disposition by affirm­
ance when this Court cannot sit on an appeal, was cited 
by the Court below as corroboration of Congressional in­
tention that only a majority decision of this Court would 
bar consideration of Federal claims in a habeas corpus pro­
ceeding.

II.

The decision below is clearly correct and in accordance 
with applicable decisions of this Court.

After a review of Congressional enactments authorizing 
Federal courts to entertain writs of habeas corpus by per­
sons convicted in State court proceedings, the Court below 
concluded that in enacting Section 2244(c) Congress did 
not intend to deprive the habeas petitioner of his right to 
one federal adjudication of Federal constitutional issues 
merely because those issues had been previously raised 
before the Supreme Court. “Only if the Supreme Court 
had actually decided the issues would its adjudication be 
final” . (8a). (Emphasis in original.) Since the very fact 
of an equal division meant that the Supreme Court was un­
able to reach such a decision, the Court held that under 
such circumstances there had been no adjudication of the
issues.



9

In addition, the Court below stated:

That Congress does not consider an affirmance by an 
equally divided court to be an actual adjudication of the 
merits is corroborated by its enactment of another pro­
vision of the Judicial Code, 28 U.S.C. §2109, which 
provides that in certain instances when a case on re­
view in the Supreme Court cannot be decided because 
of the absence of a quorum of qualified justices “ the 
court shall enter its order affirming the judgment of 
the court from which the case was brought for review 
with the same effect as upon affirmance by an equally 
divided court.”  (Emphasis added.) See e.g., Prichard 
v. United States, 339 U.S. 974 (1950). This provision 
was enacted to allow final disposition of litigation when 
“ appellate review has been had and further review by 
the Supreme Court is impossible. . . . ” H.K. Hep. No. 
308, 80th Cong., 1st Sess. A176 (1947). (9a).

Petitioners argue only that an affirmance by an equally 
divided Court constitutes an actual adjudication of the 
issues raised before the Court, first, because such affirm­
ances are conclusive and binding upon the parties in civil 
cases; and second, because such affirmances differ from 
denials of writs of certiorari, which the legislative history 
of the subsection excepts from its purview.

The Court below properly rejected those arguments. 
Pointing out that the conclusive and binding effect of affirm­
ances by an equally divided Supreme Court in civil actions 
is irrelevant to a habeas corpus proceeding, the Court of 
Appeals noted the statement that where there is an equal 
division “ ‘nothing is settled’ by the Court, Ohio ex rel.



10

Eaton v. Price, 364 U.S. 263, 264 (1960) (opinion of Mr. 
Justice Brennan).” (10a).

Petitioners’ second contention conflicts with their first: 
if civil cases are relevant, then it must be noted that the 
denial of a writ of certiorari in a civil case leaves in effect 
a judgment as final and binding upon the parties as a 
4 to 4 affirmance. When neither party to a civil action peti­
tions for a writ of certiorari, the judgment in effect is 
equally conclusive and binding. Yet habeas corpus is avail­
able to a criminal defendant whose petition for a writ of 
certiorari from a state conviction is denied or who does not 
petition for such a writ.

In review of the foregoing, the decision of the Court be­
low is correct and accords with decisions of this Court with 
respect to its equally divided affirmances.



11

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that this petition for a writ of certiorari should be 
denied.

Dated: New York, N. Y.
June 8, 1972

Respectfully submitted,

Shirley F ingerhood
R ichard G. Green

1270 Avenue of the Americas 
New York, N. Y. 10020 
212 246-8689

Burt Neuborne
84 Fifth Avenue 
New York, N. Y. 10011

Melvin L. W ulf
Lawrence G. Sager 

156 Fifth Avenue 
New York, N. Y. 10010

Attorneys for Respondent



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