Gomez v. City of Watsonville Brief Amicus Curiae

    PETITION FOR REHEARING

IN THE

Suprem e C ourt of A ppeals 
of V ir ginia

AT RICHMOND

Record No. 4750

National Association for the Advancement 
of Colored People, Incorporated, et al, 

Petitioners,

versus
Committee on Offenses Against the 

Administration of Justice, 
Respondents.

S. W. T ucker 
Emporia, Virginia
Roland D. E aley 
Richmond 19, Virginia
Oliver W. H ill 
Richmond 19, Virginia
Martin A. Martin 
Richmond 19, Virginia
W. H ale T hompson 
Newport News, Virginia

Counsel for Petitioners

The Press of Lawyers Printing Co., Inc., Richmond 7, Va.



TABLE OF CONTENTS

Page

Petition For Rehearing................................................  1

Argument ....................................................................... 4
Conclusion ........................................................ 1........... 15

TABLE OF CASES

American Communications Association v. Douds, 339 
U.S. 382, 70 S. Ct. 674, 94 L ed 925 ........................ 8

Barrows v. Jackson, 346 U. S. 249 .............................. 12

Brewer v. Hoxie School District, 8 Cir. 238 F. 2d 91 .. 12

Herndon v. Lowry (1937) 301 U. S. 242, 81 L ed 
1066, 57 S. Ct. 732 ................................................ — 9

National Association for the Advancement of Colored 
People, et al, v. Kenneth C. Patty, Attorney-Gen­
eral, et al (Civ. Nos. 2435 and 2436, E. D. Va., 
decided January 21, 1958)............... 2, 3, 5, 6, 7, 11, 14

Sweezy v. New Hampshire, 354 U. S. 234, 1 L ed 2d 
1311........................................................................... 5,11

Thomas v. Collins (1945) 323 U. S. 516, 89 L ed 430,
65 S. Ct. 315............................................................... 14

United States v. Harris (1954) 347 U. S. 612, 98 L 
ed 989, 74 S. Ct. 808 ..................................................  10

Watkins v. United States, 354 U. S. 178, 1 L ed 2d 
1273 .......................    11

West Virginia State Board of Education v. Barnette 
(1942) 319 U. S. 624, 63 S. Ct. 1178, 147 ALR 
674, 87 L ed 1628............................................. -.......  9



Page

OTHER REFERENCES

Rule 5:1, Section 4, Rules of Supreme Court of Ap­
peals of V irginia........................................................  6

Rule 28, Canons of Professional E th ics.................... 7
Chapter 35, Acts of General Assembly of Virginia, 

Extra Session, 1956 .....................-..........................  3



IN THE

Suprem e C ourt of A ppeals 
of Virc dnia

AT RICHMOND

Record No. 4750

National Association for the Advancement 
of Colored People, Incorporated, et al, 

Petitioners,

versus
Committee on Offenses Against the 

Administration of Justice, 
Respondents.

PETITION FOR REHEARING

To the Honorable Justices of the Supreme Court of 
Appeals of Virginia:

This petition for rehearing is filed by and on behalf 
of the National Association for the Advancement of



Colored People, a corporation, the Virginia State Con­
ference of NAACP Branches, and W. Lester Banks, as 
Executive Secretary of said Conference, and also by 
said W. Lester Banks in his own right as a member of 
said Association residing in Virginia and on behalf of 
other persons similarly situated. Said petitioners pray a 
rehearing of the case styled National Association for the 
Advancement of Colored People, et al, vs. Committee on 
Offenses Against the Administration of Justice, Record 
No. 4750, decided January 20, 1958, in which this Court 
held that the Hustings Court of the City of Richmond 
had properly caused the issuance of subpoenas duces 
tecum to compel certain papers and records of the peti­
tioning organization to be produced before the respond­
ent committee.

In so deciding this case, the Court stated: “. . . the 
real issue is whether the witness should be compelled to 
disclose the names and addresses of the members of the 
NAACP, and its voluntary workers and associates, in 
Virginia.” But having properly defined the issue, the 
Court then proceeded expressly to decide broad consti­
tutional issues, which by the very nature of the record 
had not been fully developed upon the original hearing; 
and, by necessary inference, to decide the constitution­
ality of other acts of the General Assembly, Extra Ses­
sion, 1956, all of which is in conflict with a decision of 
the United States District Court for the Eastern District 
of Virginia, rendered on January 21, 1958. in National 
Association for the Advancement of Colored People, et 
al, vs. Kenneth C. Patty, Attorney-General, et al (Civil 
Actions Nos. 2435 and 2436) (hereinafter referred to



3

as N AAC P  vs. Attorney General), a case involving the 
basic issues here determined.

The case of N AAC P  vs. Attorney General involved 
the constitutionality of the package of laws commonly 
referred to as “Anti-NAACP” statutes, namely Chap­
ters 31, 32, 33, 35 and 36, Acts of the General Assem­
bly, Extra Session, 1956. In this case and a companion 
case on behalf of the NAACP Legal Defense and Edu­
cational Fund, the power of the State to compel the dis­
closure of the names and addresses of its members, con­
tributors, voluntary workers and associates through reg­
istration laws (Chapters 31 and 32) was challenged. 
This case also challenged the validity of Chapters 33,
35 and 36, Acts of the General Assembly, Extra Session, 
1956, through which the State sought to make unlawful 
the activity of the Association in sponsoring litigation 
attacking racial segregation. The District Court held 
Chapters 31, 32 and 35 unconstitutional and held the 
case open pending an interpretation of Chapters 33 and
36 by the State courts.

In view of the eminence of the respective Courts ren­
dering conflicting decisions, the grave public issues in­
volved, and the fact that in the case of N AAC P  vs. 
Attorney General, supra, the Court had the benefit of a 
full record which this Court did not, we ask a rehearing 
of the instant case on the following ground:

This Court has passed on a question which was neither 
presented by an assignment of error nor raised else­
where in the record and, in so doing, has abridged rights 
secured by the First Amendment and protected against



4

State action by the due process clause of the Fourteenth 
Amendment to the Federal Constitution.

ARGUMENT
A

Upon a record which was not specially developed for 
such purpose, the Court has decided Federal Constitu­
tional questions which were not in issue here.

The Court broadened the scope of the questions pre­
sented and then extended its negation of the asserted 
constitutional rights to encompass a denial of rights pro­
tected by the First Amendment. We quote from the 
opinion:

“. . . (3) Does the disclosure of the information 
sought by the subpoenas violate any constitutional 
rights of the appellants? (Emphasis supplied.)

*  *  *

“. . . Nor do we agree with the suggestion in the 
appellants’ brief that the required disclosure of the 
names of their members and associates ‘would be 
necessarily coercive’ and therefore a restraint on 
their freedom of speech or right of assembly guar­
anteed by the First Amendment. No limitation by 
license or otherwise on the activities of the appel­
lants is here involved. This is an inquiry into such 
activities and the identity of those who are involved 
therein, to ascertain whether they are engaged in 
unlawful practices. Clearly, this is within the State’s 
police power.”



5

The motion to quash the subpoena from the Hustings 
Court of the City of Richmond does not, in terms, men­
tion the Constitution of the United States. The Assign­
ments of Error invoked the due process clause of the Four­
teenth Amendment only to the extent that said clause and 
its counterpart in Section 11 of the Constitution of Vir­
ginia may have had a bearing upon the procedure fol­
lowed in the Court below. The “due process” challenges 
were to the entry of the lower court’s initial judgment 
order upon an ex parte application (second assignment) 
and to the action of the Court below in so far as it (en­
tirely) relieved the Committee of the onus probandi 
(third assignment). Except to state The Errors Assigned 
in their original language, the appellants in their opening 
brief avoided all mention of the Fourteenth Amendment 
to the Federal Constitution. The citation of Swcezy vs. 
New Hampshire, 354 U. S. 234, 1 L ed 2d 1311, as an 
illustration of a failure to show that the information 
sought was required by the legislative directive, could 
not be taken as an invocation of federal law.

Only questions of state procedural and substantive law 
were formally presented to the state courts. Prior to the 
commencement of any proceeding in the state court, 
questions of a substantive federal law, and particularly 
questions involving rights secured by the First Amend­
ment as incorporated into the Fourteenth, had been ten­
dered to the United States District Court for the Eastern 
District of Virginia in the cases of N A AC P  vs. Attor­
ney General, supra. A  record appropriate for the disposi­
tion of such questions was developed in that Court and 
a decision of those issues, contrary to the decision of 
this Court, was rendered on January 21, 1958. Even be­



6

fore the motion to quash subpoenas was filed in the court 
below, these issues of federal law had also been made the 
subject of controversy between the parties here in the 
case of National Association for the Advancemeiit of 
Colored People, etc., et al, vs. Ames, et al, (Civil Action 
No. 2480) still pending in said United States District 
Court, a copy of the proceedings in which were filed here 
by the appellee during the oral argument.

Petitioners could not anticipate that this issue, orig­
inally addressed to the District Court and yet pending 
before it, would be decided in the instant proceeding. Nor 
could they anticipate a ruling on that issue in this Court. 
Rule 5:1, Section 4, of the Rules of this Court is explicit 
that only errors duly assigned will be noticed by this 
Court. The effect of the decision is clear. The compelled 
disclosure of the names and addresses of the Associa­
tion’s members, voluntary workers and associates “con­
stitutes a restriction upon the right of free speech which, 
as we have seen, the Association is entitled to exercise. 
*** (R)egistration of names of persons who resist the 
popular will would lead not only to expressions of ill 
will and hostility but to the loss of members by the plain­
tiff’s Association.” N A AC P  vs. Attorney General, supra. 
The decision in the instant case necessarily deprives peti­
tioners, and the many thousands of persons they repre­
sent, of vital constitutional rights without opportunity 
to be heard.

In this same connection this Court cited Chapter 35. 
Acts of General Assembly, 1956, as the basis for the re­
quirement that the Association disclose the names and 
addresses of its members, voluntary workers and asso­



7

ciates and buttressed it with a citation of Rule 28 of the 
Canons of Professional Ethics. Obviously, this pre­
supposes that Chapter 35 as applied to these petitioners 
is constitutional without affording appellants an oppor­
tunity to point out the infirmities of Chapter 35. The 
error is all the more apparent when it is considered that 
the first Court to which the constitutionality of Chapter 
35 was fully and adequately presented declared it uncon­
stitutional as applied to the activities of these petitioners. 
The decision in N AAC P  vs. Attorney General, supra, not 
only expressly declared Chapter 35 unconstitutional, but 
also clearly pointed out the inapplicability of Rule 28 in 
the premises.

It is well established that an invalid statute cannot form 
the basis for coercive state action. (N AAC P  vs. Attorney 
General, supra; Sweezy vs. New Hampshire, supra.)

B

Compulsory disclosure of names of members of peti­
tioning organizations would, at the least, impinge upon 
First Amendment rights. Such disclosure would be but 
a species of “thought inspection.” Disclosure of the names 
of members would involuntarily lay bare the individual 
opinions of 23,000 citizens residing in the Common­
wealth on its most controversial subject of the century. 
Thoughts are inviolate. The peaceable association for a 
lawful purpose is also inviolate.

In the case of N AAC P  vs. Attorney General, supra. 
the effort of the Commonwealth of Virginia to require 
disclosure of the names of the contributors and members



8

of the petitioning organizations was clearly denounced 
as an invasion of First Amendment rights.

The case is not removed from the protection of the 
First Amendment by the Court’s observation that “ ( n)o 
limitation by license or otherwise on the activities of the 
appellants is here involved.” In American Communica­
tions Association v. Douds, 339 U. S. 382, 70 S Ct. 674, 
94 L ed 925, five justices, for the Court, upheld a Con­
gressional requirement that leaders of labor unions which 
seek to obtain advantages under labor relations legisla­
tion must file affidavits disclaiming membership in Com­
munist organizations; and an equally divided Court up­
held the requirement of the statute that the union official 
state that he does not believe in the Communist doctrine. 
Justification for the restraint was rested upon general 
information that labor leaders, acting under orders of 
the Communist Party, called strikes merely to disrupt 
the national economy and upon the legislative judgment 
that interstate commerce must be protected from a con­
tinuing threat of strikes. However, the Court (and. more 
vigorously, the dissenting justice and the justices dis­
senting in part and concurring in part) clearly recog­
nized the required disclosure as an abridgement of free­
dom of speech. To quote language of Chief Justice Vin­
son, for the Court:

“. . . (T )he fact that no direct restraint or punish­
ment is imposed upon speech or assembly does not 
determine the free speech question. Under some cir­
cumstances, indirect ‘discouragements’ Undoubtedly 
have the same coercive effect upon the exercise of 
First Amendment rights as imprisonment, fines, in-



9

junctions or taxes. A requirement that adherents of 
particular religious faiths or political parties wear 
identifying arm-bands, for example, is obviously of 
this nature . . . (339 U. S. at 402)

C

Any subordination of First Amendment rights to the 
police power must be clearly justified by the government 
in terms of its own self preservation.

“The power of a state to abridge freedom of speech 
and of assembly is the exception rather than the 
rule . . . . ” Herndon v. Lowry (1937) 301 U. S. 242, 
258, 81 L ed 1066, 1075, 575 S Ct. 732.

In the case of West Virginia State Board of Education 
v. Barnette (1942) 319 U. S. 624, 639, 63 S Ct. 1178. 
147 ALR 674, 87 L ed 1628, the Court said:

“. . . ( I ) t  is important to distinguish between the 
due process clause of the Fourteenth Amendment as 
an instrument for transmitting the principles of the 
First Amendment and those cases in which it is ap­
plied for its own sake. The test of legislation which 
collides with the Fourteenth Amendment, because 
it also collides with the principles of the First, is 
much more definite than the test when only the 
Fourteenth is involved. Much of the vagueness of 
the due process clause disappears when the specific 
prohibitions of the First become its standard. The 
right of a State to regulate, for example, a public 
utility may well include, so far as the due process



10

test is concerned, power to impose all of the restric­
tions which a legislature may have a ‘rational basis’ 
for adopting. But freedoms of speech and of press, 
of assembly, and of worship may not be infringed 
on such slender grounds. They are susceptible of 
restriction only to prevent grave and immediate 
danger to interests which the state may lawfully 
protect. . . .”

In United States v. Harris (1954) 347 U. S. 612, 98 
L ed 989, 74 S Ct. 808, the justices recognized that Con­
gress had impinged upon the area of First Amendment 
rights when, by passing the Federal Regulation of Lobby­
ing Act, it required identification of those who employed 
professional lobbyists. The constitutionality of the 
abridgement was upheld; but only because, in the opin­
ion of five of the justices, the purpose of the Congress 
has been “to maintain the integrity of a basic govern­
mental process.” Said the Court:

“Under these circumstances, we believe that Con­
gress, at least within the bounds of the Act as we 
have construed it, is not constitutionally forbidden 
to require the disclosure of lobbying activities. To 
do so would be to deny Congress in large measure 
the power of self protection. And here Congress has 
used that power in a manner restricted to its ap­
propriate end.” 347 U. S. at 625.

No attempt at justification for the demand of the 
names of members is reflected in the record here; neither 
was any valid justification shown in the United States 
District Court in the case of N AAC P  vs. Attorney Gen-



11

oral, supra, in which this specific issue was made up and 
extensively developed.

D

The right of legislative investigation cannot transcend 
First Amendment rights. In Watkins v. United States, 
354 U. S. 178, 1 L Ed 2d 1273, 1290, the Supreme Court 
observed:

“We cannot simply assume, however, that every 
congregational investigation is justified by a public 
need that over balances any private rights affected. 
To do so would be to abdicate the responsibility 
placed by the Constitution upon the judiciary to in­
sure that the Congress does not unjustifiably en­
croach upon an individual’s right to privacy nor 
abridge his liberty of speech, press, religion or as­
sembly.”

In Sweezy v. Nezv Hampshire, supra, these admoni­
tions appear:

“It is particularly important that the exercise of the 
power of compulsory process be carefully circum­
scribed when the investigative process tends to im­
pinge upon such highly sensitive areas as freedom 
of speech or press, freedom of political association, 
and freedom of communication of ideas . . . ” (1 L 
ed 2d at 1322)

*  *  *

“Merely to summon a witness and compel him



12

against his will, to disclose the nature of his past 
expressions and associations is a measure of gov­
ernmental interference in these matters. These are 
rights which are safeguarded by Bill of Rights and 
the Fourteenth Amendment.” (1 L ed 2d at 1324)

E

Rights of the petitioners under the First Amendment 
take the color and substance of the rights of their indi­
vidual constituents or members.

“. . . (W)e  may fairly consider not only the rights 
of the plaintiff corporations but also the rights of 
the individuals for whom they speak, particularly 
the rights of the members of the Association . . . .  
The rights that the plaintiffs assert take their color 
and substance from the rights of their constituents; 
and it is now held that where there is need to protect 
fundamental constitutional rights the rule of prac­
tice is relaxed, which confines a party to the asser­
tion of his own rights as distinguished from the 
rights of others. See Barrows vs. Jackson, 346 U. S. 
249, 257. This rule was applied in Brezver vs. Hoxie 
School District, 8 Cir., 239 F. 2d 91, 104, where the 
school board in an Arkansas county brought suit to 
restrain certain organizations from obstructing the 
board in its efforts to secure the equal protection of 
the laws to all persons in the operation of the public 
schools in the district. The court said:
“ ‘The school board having the duty to afford the 
children the equal protection of the law has the cor­
relative right, as has been pointed out, to protection



13

in performance of its function. Its right is thus in­
timately identified with the right of the children 
themselves. The right does not arise solely from the 
interest of the parties concerned, but from the neces­
sity of the government itself. *** Though, generally 
speaking, the right to equal protection is a i>ersonal 
right of individuals, this is ‘only a rule of practice’, 
*** which will not be followed where the identity of 
interest between the party asserting the right and 
the party in whose favor the right directly exists is 
sufficiently close’ ” N A A C P  vs. Attorney General, 
supra. See also so much of that opinion in which 
the Court discusses “Civil Rights of Corporations” as 
a phase of the Court’s disposition of “Defendant’s 
Motion to Dismiss.”

F

The State’s procedural concept of due process is in­
adequate here. One of the 'arguments of the appellants 
was that due process required the Court to hear both 
sides before rendering judgment and another argument 
was that the burden of proof should have been imposed 
upon the appellee to show the materiality of the informa­
tion sought to any legitimate purpose of the committee. 
As far as the procedural law of this Commonwealth goes, 
these questions were resolved against the appellants. But: 
if the opinion of this Court is to be read as holding that 
such procedure squares with the due process clause of 
the Fourteenth Amendment even as it protects First 
Amendment rights, then such opinion clashes with this 
Federal requirement:

“ (A)ny attempt to restrict those liberties must be



14

justified by clear public interest, threatened not 
doubtfully or remotely but by clear and present dan­
ger. The rational connection between the remedy 
provided and the evil to be curbed, which in other 
contexts might support legislation against attack on 
due process grounds, will not suffice. These rights 
rest on firmer foundation. Accordingly, whatever 
occasion would restrain orderly discussion and per­
suasion, at appropriate time and place, must have 
clear support in public danger, actual or impend­
ing. Only the gravest abuses, endangering para­
mount interests, give occasion for permissible limi­
tation. It is therefore in our tradition to allow the 
widest room for discussion, the narrowest range for 
its restriction, particularly when this right is exer­
cised in conjunction with peaceable assembly. It was 
not by accident or coincidence that the rights to free­
dom of speech and press were coupled in a single 
guaranty with the rights of the people peaceably to 
assembly and to petition for redress of grievances. 
All these, though not identical, are inseparable.

*  *  *

“. . . There is some modicum of freedom of thought, 
speech and assembly which all citizens of the re­
public may exercise throughout its length and 
breadth, which no State, nor all together, nor the 
Nation itself, can prohibit, restrain or impede.” 
Thomas v. Collins (1945) 323 U. S. 516, 530, 543, 
89 L ed 430, 65 S Ct. 315.

In dealing with the precise questions involved in this 
case, the Court, in N A AC P  vs. Attorney General, supra, 
stated:



15

“No doubt, the State of Virginia has the right 
reasonably to regulate the practice of law. but, 
where that regulation prohibits otherwise lawful 
activities without showing any rational connection 
between the prohibition and some permissible end of 
legislative accomplishment, the regulation fails to 
satisfy the requirements of due process of law. Here, 
under the guise of regulating unauthorized law prac­
tice, the General Assembly has forbidden plaintiffs 
to continue their legal operations.”

CONCLUSION

For the reasons hereinabove stated, petitioners pray 
that they be granted a rehearing in this case and that 
upon a rehearing the decision of this Court upon the 
constitutional questions be reversed and that the affirm­
ance by his Court of the judgment rendered in the court 
below be reversed, or at least be so restricted as to protect 
petitioners’ constitutional rights.

Respectfully submitted,
NATIONAL ASSOCIATION FOR TH E 
ADVANCEMENT OF COLORED PEO­
PLE, INCORPORATED; V I R G I N I A  
STATE CONFERENCE OF NAACP 
BRANCHES; W. LESTER BANKS, Ex­
ecutive Secretary of said Conference; and 
W. LESTER BANKS in his own right as 
a member of said Association residing in 
Virginia and on behalf of other persons sim­
ilarly situated.
By S. W. T ucker 

O f Counsel



16

S. W. T ucker 
Emporia, Virginia
Roland D. E aley 
.420 North First Street 
Richmond 19, Virginia
Oliver W. H ill 
118 East Leigh Street 
Richmond 19, Virginia
Martin A. Martin 
118 East Leigh Street 
Richmond 19, Virginia

W. H ale T hompson 
611 - 25th Street 
Newport News, Virginia

Counsel for Petitioners

CERTIFICATE

I certify that three copies of this petition will be de­
livered or mailed to opposing counsel.

Oliver W. H ill 

O f Counsel for Petitioners