Johnson v. California Brief Amici Curiae in Support of Petitioner

    SUPREME COURT OF LOUISIANA

Number 47,472

S tate op L ouisiana,

Respondent-Appellee,

-vs-

P earl L ee George,
Relator-Appellant.

In Re: Application for Writs of Certiorari, Mandamus 
and Prohibition, Invoking Supervisory Jurisdiction 
Over the Nineteenth Judicial District Court, Parish of 
East Baton Rouge, State of Louisiana, Honorable 
C. A. Barnett, Judge Presiding.

ORIGINAL BRIEF FOR PEARL LEE GEORGE, 
DEFENDANT, RELATOR-APPELLANT, IN 
SUPPORT OF APPLICATION FOR WRITS 

OF CERTIORARI, MANDAMUS AND 
PROHIBITION

J o h n n ie  A. J ones
Attorney for Relator
530 South 13th Street
Baton Rouge, Louisiana 70802

J ack  Greenberg
10 Columbus Circle 
New York, N. Y. 10019 

Of Counsel



I N D E X

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

Syllabus — ...................................... -.................. ............  2

Statement of the Case ...................—-..............................  3

Specification of Errors ........ .............. ...... ..... -.......... -.....  1

A rgum ent  :

The Arrest and Conviction of Appellant for Dis­
turbing the Peace Violated Her 14th. Amendment 
Constitutional Eights in that:

1) There Was No Evidence of Her Commission
of the Crime Charged, in Violation of Due 
Process of L a w ..................................................  5

2) The Broadness and Vagueness of the Statute 
Effectively Prohibits Constitutionally Pro­
tected Rights in Violation of Due Process
of L a w .................................................................. 7

3) The Statute Permits the Indirect Invasion 
of Appellant’s Right to the Equal Protection
of the Law s.......................................................... 9

Certificate ............................................. - .................. ....... 1-3

T able oe A uthorities

Cases:

Bell v. Maryland, 378 U. S. 226 (1964) ..........................  12
Burton v. Wilmington Parking Authority, 365 U. S. 715 

(1961) .................-.....................................- ...................... 2,9

PAGE



ii

City of Greensboro v. Simkins, 246 F. 2d 425 (4th Cir.
1957), affirming 149 F. Snpp. 562 (M. D. N. C., 1957) ..2,10 

City of New Orleans v. Adams, 321 F. 2d 493 (5th Cir.
1963) ..............................................................     2,9

Coke v. City of Atlanta, 184 F. Supp. 579 (N. D. Ga., 
1960) .......................   2,10

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), 
cert. den. 353 U. S. 924 (1957) ____ ______ __ _____  2, 9

Edwards v. South Carolina, 372 U. S. 229 (1963) ....2, 6, 8

Garner et al. v. State of Louisiana, 368 IT. S. 157 
(1961) ........................ ...... ........ ......... ........................ . 2,6

Lanzetta v. New Jersey, 306 U. S. 451 (1939) ...............  2, 7
Lombard v. Louisiana, 373 U. S. 267 (1963) ...............2,10

State ex rel. Dowling v. Ray, 150 La. 1030, 91 So. 443
(1922) ....          1

State v. Sanford, 203 La. 961, 14 So. 2d 778 (1943) .... 2, 8

Taylor v. Louisiana, 370 U. S. 154 (1962) ..... .............  6
Thompson v. Louisville, 362 IT. S. 199 (1960) ------------  2, 5
Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940) ------ 2, 8
Turner v. City of Memphis, 369 IT. S. 350 (1962) .......2,10

United States v. Chambers, 291 U. S. 217 (1934) ..... .....  12
United States v. Tynen, 78 U. S. (11 Wall.) 88 (1871) .... 12

PAGE

Wright v. Georgia, 373 U. S. 284 (1963) 2,7



Ill

Statutes:

Civil Rights Act of 1964, §201, 78 Stat. 243 .................  10

Civil Rights Act of 1964, §203, 78 Stat. 244 .................. 11

Constitution of Louisiana of 1921, Article 7, Section 10 1

LSA-R. S. 14:26 of 1950, as amended..............................  1

LSA-R. S. 14:103.1 of 1950, as amended.... .................. 1,4,5

O th er  A u thority

110 Cong. Rec. 9463 (daily ed. May 1, 1964) ............... 11

PAGE



SUPREME COURT OF LOUISIANA

Number 47,472

S tate oe L ouisiana,

Respondent-Appellee,
■—vs.—■

P earl L ee George,

Relator-Appellant.

In Re: Application for Writs of Certiorari, Mandamus 
and Prohibition, Invoking Supervisory Jurisdiction 
Over the Nineteenth Judicial District Court, Parish of 
East Baton Rouge, State of Louisiana, Honorable 
C. A. Barnett, Judge Presiding.

ORIGINAL BRIEF FOR PEARL LEE GEORGE, 
DEFENDANT, RELATOR-APPELLANT, IN 
SUPPORT OF APPLICATION FOR WRITS 

OF CERTIORARI, MANDAMUS AND 
PROHIBITION

Jurisdiction

This case is predicated on LSA-R. S. 14:26 and LSA- 
R. S. 14:103.1 of 1950, as amended, criminal conspiracy for 
the specific purpose of committing a criminal mischief, and 
particularly to disturb the piece.

This court has supervisory jurisdiction over criminal 
courts under Section 10, Article 7, The Constitution, State 
of Louisiana of 1921, and Section 7, Rule 12 of this court. 
State ex rel. Dowling v. Ray, 150 La. 1030, 91 So. 443 
(1922).



2

Syllabus

The Arrest and Conviction of Appellant for Disturbing 
the Peace Violated Her 14th Amendment Constitutional 
Rights in that:

1) There was no evidence of her commission of the crime 
charged, in violation of due process of law.

Garner et al. v. State of Louisiana, 368 U. S. 157 
(1961); Thompson v. Louisville, 362 U. S. 199 (1960); 
Edwards v. South Carolina, 372 U. S. 229 (1963).

2) The breadth and vagueness of the statutes effectively 
prohibits constitutionally protected rights in violation 
of due process of law.

Wright v. Georgia, 373 U. S. 284 (1963); Lametta v. 
New Jersey, 306 U. S. 451 (1939); Thornhill v. Ala­
bama, 310 IT. S. 88, 97-98 (1940); State v. Sanford 
203 La., 961,14 So. 2d 778 (1943).

3) The statute permits the indirect invasion of appel­
lant’s right to the equal protection of the laws.

Burton v. Wilmington Parking Authority, 365 IT. S. 
715 (1961); Herrington v. Plummer, 240 P. 2d 922 
(5th Cir. 1956) cert, denied 353 IT. S. 924 (1957); City 
of New Orleans v. Adams, 321 P. 2d 493 (5th Cir. 
1963); City of Greensboro v. Simkins, 246 F. 2d 425, 
(4th Cir., 1957) affirming 149 P. Supp. 562. (M. II 
N. C., 1957); Coke v. City of Atlanta, 184 F. Supp. 579 
(N. D. Gfa., 1960); Turner v. City of Memphis, 369 
IT. S. 350 (1962); Lombard v. Louisiana, 373 U S 
267 (1963).



3

Statement of the Case

On July 22, 1963 (E. 12) around 3:00 p.m. (E. 13), two 
Negro women (E. 12-13), appellant and another (E. 13-14), 
entered the coffee shop owned by the City-Parish, located 
in the East Baton Eouge Parish Courthouse, also owned by 
the City-Parish (E. 21, 22, 70). They had come to the 
court house in order to attend a trial (E. 79). They pur­
chased a candy bar at the counter and sat down at one of 
the tables (E. 77), the normal procedure being to purchase 
food at the counter and to carry it to the tables (E. 48). 
The coffee shop provides no table service (E. 47-48).

The manager of the coffee shop, who operates the estab­
lishment rent-free as part of the Vocational Training and 
Eehabilitation Program provided for the blind by the State 
of Louisiana (E. 70), upon learning of their presence, im­
mediately suspended operations (E. 46). The white cus­
tomers left and gathered in the hall outside the room. The 
manager then asked appellant and her companion to leave 
(E. 51). At the trial, he testified that Negroes were per­
mitted to buy items at the counter (E. 46), but that they 
were not allowed to sit at the coffee shop tables (E. 71).

When appellant and her companion refused to leave the 
coffee shop, he summoned two deputies who arrested ap­
pellant when she did not leave at their request (E. 72). At 
the trial, respondent maintained that by sitting at the table 
and refusing to leave, appellant was “ egging something on” 
(E. 24), and that her behavior was a “ calculated sit-in for 
the purpose of disrupting my business.” (E. 56).

With one exception, the testimony of respondent and 
petitioner is without conflict.1

1 Appellant testified that a candy bar was purchased at the 
counter. Respondent’s manager, who is blind (R. 69), testified 
that it was a newspaper (R. 39, 62).



4

Respondent admitted that appellant did nothing to at­
tract the attention of the crowd in the hall other than sit at 
the table in the coffee shop (R. 42).

Appellant was charged with disturbing the peace, (LSA 
RS 14:103.1) (as amended), tried, convicted and sentenced 
to 30 days in jail.

Appellant’s motion for a new trial was denied (R. 19). 
Appellant now applies to the Supreme Court of Louisiana 
for Writs of Certiorari, Mandamus and Prohibition.

Specification of Errors

The trial court erred in convicting appellant in that;

1) The crime charged was not established by the evidence;

2) The statute under which the crime was charged is vague 
and overbroad;

3) Appellant wTas excluded from a county court house on 
the basis of race;

all in violation of appellant’s 14th Amendment right to due 
process of law and the equal protection of the laws.



5

A R G U M E N T

The Arrest and Conviction o f  Appellant for Disturb­
ing the Peace Violated Her 14th Amendment Constitu­
tional Rights in that:

1) There Was No Evidence of Her Commission of the Crime 
Charged, in Violation of Due Process of Law.

The Statute under which appellant was convicted provides:

A. Whoever with intent to provoke a breach of the 
peace, or under circumstances that a breach of the 
peace may be occasioned thereby: . . . .

(4) refuses to leave the premises of another when 
requested to do so by any owner, lessee, or any 
employee thereof, shall be guilty of disturbing 

the peace. LSA-RS 14:103.1 as amended.

The behavior which formed the basis for petitioner’s in­
dictment and conviction consisted of her sitting at the table 
in the courthouse coffee shop. Her refusal to leave was 
founded upon her belief in her right to sit in a coffee shop 
owned by the county and operated in conformity with a 
state program. There is no evidence, therefore, that ap­
pellant s refusal to leave was made with “ intent to provoke 
a breach of the peace, or under circumstances that a breach 
of the peace may he occasioned thereby.” The exercise of a 
legal right, constitutionally protected, hardly qualifies as 
such a “ circumstance.”

In Thompson v. Louisville, 362 U. S. 199 (1960), the Su­
preme Court enunciated the constitutional requirement that 
the evidence prove the crime charged. The court concluded 
at p. 204:



6

Under the words of the ordinance itself, if the evidence 
fails to prove all three elements of this loitering 
charge, the conviction is not supported by evidence, in 
which event it does not comport with due process of 
law.

The facts of the instant case are closely similar to those 
of Garner, et al. v. Slate of Louisiana, 368 U. S. 157 (1961) 
where the Supreme Court of the United States reversed 
state convictions of peaceful sit-in demonstrators under a 
statute which defined disturbing the peace as the commis­
sion of any act in such a manner as to unreasonably disturb 
or alarm the public, holding at p. 162:

The convictions in these cases are so totally devoid of 
evidentiary support as to render them unconstitutional 
under the Due Process clause of the Fourteenth 
Amendment.

The principle of Garner has been cited and followed in 
recent cases. Reversing the state court conviction of Ne­
groes who attempted to enter a waiting room customarily < 
reserved for whites, the court held in Taylor v. Louisiana, 
370 U. S. 154 (1962) per curiam, at p. 156, that there was 
no evidence of a breach of the peace as charged:

Here as in Garner . . . ,  the only evidence to support the 
charge was that petitioners were violating a custom 
that segregated people in waiting rooms according to 
their race, a practice not allowed in interstate trans­
portation facilities by reason of federal law.

More recently, in Edwards v. South Carolina, 372 U. S. 229 
(1963), where Negro demonstrators were again convicted 
of the crime of breach of the peace, the Supreme Court re­
versed: (p. 237).



7

. . .  [T]hey were convicted upon evidence which showed 
no more than that the opinions which they were peace­
ably expressing were sufficiently opposed to the views 
of the majority of the community to attract a crowd 
and necessitate police protection.

The Fourteenth Amendment does not permit a State 
to make criminal the peaceful expression of unpopular 
views.

2) The Broadness and Vagueness of the ,Statute Effectively 
Prohibits Constitutionally Protected Rights in Violation 
of Due Process of Law.

The undisputed facts of this case reveal that the reason 
appellant was requested to leave was because she is a Negro 
and therefore not allowed to sit at the coffee shop tables. 
The “ circumstances” under which the “breach of the peace 
[was] occasioned” were created by respondent when its 
agent closed the coffee house at the arrival of appellant, a 
signal to the white patrons to congregate in the hall until 
the “disturbance” was eliminated. The statutory language 
intent to provoke a breach the peace or under circum­

stances that a breach of the peace may be occasioned 
thereby” is thus sufficiently vague and broad to effectively 
proscribe appellant’s constitutional right to service in a 
court house restaurant, when any disturbance, however 
precipitated, occurs.

Appellant’s right not to be excluded from the court house 
coffee shop on the basis of race is a federal constitutional 
interest of very high rank. Wright v. Georgia, 373 U. S. 
284 (1963). As with freedom of speech, a high standard of 
clarity is imposed on statutes employed to diminish racial 
equality. It can hardly be maintained that the exercise of a 
right judicially determined to belong to the appellant is 
sufficiently announced as criminal by the terms of this 
statute. Lametta v. New Jersey, 306 U. S. 451 (1939).



To the extent that appellant’s act is construed as a pro­
test against a continuing practice of segregation in the face 
of a constitutional requirement not to exclude upon the 
basis of race, the state’s proscription of her conduct by 
means of this statute violates constitutionally protected 
speech. Here again the danger of the statute, is that its 
language is vague enough, its terms broad enough to ob­
scure an unconstitutional purpose and “ make criminal the 
peaceful expressions of unpopular views”—Edwards v. 
South Carolina, supra.

The fact that there may be circumstances under wThich a 
refusal to leave will constitute a breach of the peace does 
not mitigate the evil of a statute which is broad enough to 
burden and inhibit constitutionally protected activity. The 
danger of a statute wide enough to afford the semblance of 
legality to state court prosecutions in the absence of sub­
stantial evidence was outlined in Thornhill v. Alabama, 310 
U. S. 88, 97-98 (1940):

The existence of such a statute, which readily lends it­
self to harsh and discriminatory enforcement by local 
prosecuting officials, against particular groups deemed 
to merit their displeasure, results in a continuous and 
pervasive restraint on all freedom of discussion that 
might reasonably be regarded as within its purview.

The Supreme Court of Louisiana has also spoken out 
against such overbroad statutes as repugnant to its own 
constitution. In State v. Sanford, 203 La., 961, 14 So. 2d 
778 (1943), where an attempt was made to punish peaceful, 
non-aggressive solicitation as activity “ calculated to dis­
turb or alarm the inhabitants thereof, or persons present,” 
the court, after noting the statute’s unconstitutionality un­
der federal authorities, continued (14 So. 2d at 781):



9

Furthermore, to construe and apply the statute in the 
way the district judge did would seriously involve its 
validity under our State Constitution, because it is 
well-settled that no act or conduct, however reprehensi­
ble, is a crime unless it is defined and made a crime 
clearly and unmistakably by statute.

3 ) The Statute Permits the Indirect Invasion of Appellant’s 
Right to the Equal Protection of the Laws.

Because the state is constitutionally unable to prosecute 
appellant under a statute making her unable to receive ser­
vice at a coffee house owned by the City-Parish or to pro­
test the refusal of such service, it has resorted to this 
indirect route. Under Burton v. Wilmington Barking Au­
thority, 365 U. S. 715 (1961), the Supreme Court decided 
that when a state leases property to a restaurateur in an 
automobile parking building owned and operated by an 
agency created by the State, the equal protection proscrip­
tions of the Fourteenth Amendment must be complied with 
by the lessee. In the instant case, the connection between 
the coffee shop and the state is more complete. The man­
ager of the coffee shop was not an independent lessee as 
was the case in Burton. Here, not only is the coffee shop 
part of a publicly owned building, it is operated rent-free 
as part of a state rehabilitation program.

Even before Burton, the 5th Circuit determined in Der- 
rington v. Plummer, 240 F. 2d 922 (5th Cir. 1956) cert, 
denied 353 U. S. 924 (1957) that where the county leased 
the cafeteria in a newly constructed court house to a private 
tenant, the tenant’s refusal to serve Negroes on the basis of 
race constituted state action in violation of the Fourteenth 
Amendment to the Federal Constitution. More recently, 
in City of Neiv Orleans v. Adams, 321 F. 2d 493 (5th Cir. 
1963) the court found Burton controlling where the city had



10

leased the restaurant facilities in the New Orleans airport 
to a private corporation.2

That the state cannot accomplish indirectly what it can­
not constitutionally do directly was decided in Lombard v. 
Louisiana, 373 IT. S. 267 (1963). In that case, three Negroes 
and one white college student were convicted in a Louisiana 
state court under a statute which specifically prohibited re­
maining in a restaurant after the person in charge of such 
business had ordered them to leave. Reversing the affirm­
ance of the Supreme Court of Louisiana, the United States 
Supreme Court observed: (p. 273):

. . . [T]he State cannot achieve the same result by an 
official command which has at least as much coercive 
effect as an ordinance. The official command here was 
to direct continuance of segregated service in restau­
rants, and to prohibit any conduct directed toward its 
discontinuance; it was not restricted solely to preserve 
the public peace in a non-discriminatory fashion . . . .

The Civil Rights Act of 1964, 78 Stat. 241, was intended, 
in part, to expressly preclude this kind of indirect subver­
sion of federally protected rights. An independent part of 
Title II, Section 201(b), extends coverage to a restaurant 
if the “ discrimination or segregation by it is supported by 
State action.” This section is defined by §201 (d), 78 Stat. 
243:

Discrimination or segregation by an establishment is 
supported by State action within the meaning of this 
title if such discrimination or segregation (1) is car­
ried on under color of any law, statute, ordinance, or

2 See also City of Greensboro v. Simkins, 246 P. 2d 425 ('4th Cir. 
1957) affirming 149 P. Supp. 562 (M. D. N. C. 1957) ; Coke v. City 
of Atlanta, 184 P. Supp. 579 (N. D. Ga. 1960) : Turner v. City of 
Memphis, 369 U. S. 350 (1962).



11

regulation; or (2) is carried on under color of any cus­
tom or usage required or enforced by officials of the 
State or political subdivision thereof,; or (3) is re­
quired by action of the State or political subdivision 
thereof.

Under the facts of this case, the arrest, conviction, and 
sentencing of appellant meet the terms of the act under (2) 
and (3) in that the segregation, was “ under color” of a 
custom enforced by a political, subdivision of the state 
(R. 21, 22, 70) and was itself the action of a political sub­
division of the State, the manager of the coffee shop being 
effectively within the employment and control of the state. 
(R. 70).

Thus had the alleged offense occurred after the passage 
of the Civil Rights .Act, it would have furnished a complete 
statutory defense. §203, 78 Stat. 244 specifically provides 
that:

No person shall . . . (c) punish or attempt to punish 
any person for exercising or attempting to exercise any 
right or privilege secured by section 201 or 202.

Senator Humphrey, floor manager of the Senate, read into 
the record a Justice Department statement explaining 
§203( c ) :

“ This [§203(c)] plainly means that defendant in a 
criminal trespass, breach of the peace, or other similar 
case can assert the rights created by 201 and 202 and 
that State courts must entertain defenses grounded 
upon these provisions.” 110 Cong. Record 9463 (daily 
ed. May 1,1964) (emphasis supplied).

Federal authority has thus specifically removed the “ of­
fense” charged from the state’s category of punishable



12

crimes, restating the existing judicially developed law to 
eliminate any residual uncertainties. In the context of the 
instant case, the Act secures and restates the existing fed­
eral law. In any event the cause must be decided on the 
basis of the law now existing. Thus even assuming, 
arguendo, that Mrs. George’s conduct was not lawful 
when it occurred it is certainly protected now by the Civil 
Eights Act of 1964 and the proceedings against her must 
abate. United States v. Chambers, 291 U. S. 217 (1934); 
United States v. Tynen, 78 U. S. (11 Wall.) 88 (1871); cf. 
Bell v. Maryland, 378 U. S. 226 (1964).

Eespectfully submitted,

J o h n n ie  A. J ones
Attorney for Relator
530 South 13th Street
Baton Eouge, Louisiana 70802

J ack  Greenberg
10 Columbus Circle 
New York, N. Y. 10019 

Of Counsel



13

Certificate

I, the undersigned, do hereby certify that I have served 
copies of the foregoing on the Honorable Jack Gremillion, 
Attorney General of the State of Louisiana, the Honorable 
Sargent Pitcher, Jr., District Attorney for the Parish of 
Bast Baton Eouge, and on the Honorable Judge C. A. 
Barnett, by mailing a copy of same to each of them, postage 
prepaid.

Baton Rouge, Louisiana, this ------  day of November,
1964.

J o hn n ie  A. J ones



38