Speed v Tallahassee FL Petitioners Reply Brief

    No. 783

Supreme Qloitrt ai %  Inttpfr States
October Term, 1957

L eonard D. Speed, J oseph Spagna, and J ohnny IJeendon,

Petitioners,
—vs.—

T he City op T allahassee, F lorida,

Respondent.

on petition poe writ op ceetiobaei to the circuit court 
op the second judicial circuit op the state op ploeida

PETITIONERS’ REPLY BRIEF

T hurgood M arshall 
10 Columbus Circle 
New York 19, N. Y.

Constance Baker M otley 
10 Columbus Circle 
New York 19, N. Y.

F rancisco A. R odriguez 
703 Harrison Street 
Tampa, Florida



•c>iqjri'nu' CEourt at %  HtutP& States
October Term, 1957

No. 783

L eonard D. Speed, J oseph Spagna, and J ohnny H erndon,

—vs.—
Petitioners.

T he City of T allahassee, F lorida,

Respondent.

ON P E TIT IO N  FOR W R IT  OF CERTIORARI TO T H E  CIRCUIT COURT 

OF T H E  SECOND JU D IC IA L CIRCUIT OF T H E  STATE OF FLORIDA

PETITIONERS’ REPLY BRIEF

I.

The judgment of the Circuit Court was not reviewable 
by certiorari in the Florida courts.

Respondent claims that this Court is without jurisdic­
tion under Title 28, United States Code, §1257(3) to review 
the judgment of the Circuit Court of the Second Judicial 
Circuit of Florida since, says respondent, its judgment 
could have been reviewed by the District Court of Appeal 
and by the Supreme Court of Florida and is, therefore, 
not a final judgment.

Respondent concedes that no further appeal was possible 
under Florida law in this case since by both the Constitution



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of Florida, Article V, §6 (1956)1 and the laws of Florida, 
Florida Statutes Annotated, §26.53, the Circuit Court has 
final appellate jurisdiction. Cf. Curry U-Drive It v. Boss, 
89 So. 2d 796 (1956); Cf. American National Bank of Jack­
sonville v. Marks, 45 So. 2d 336 (1950); Malone v. City of 
Quincy, 66 Fla. 52 (1913). However, respondent contends 
that petitioners could have secured a review of their 
claimed denial of rights secured by the Federal Constitu­
tion via common law writ of certiorari2 issuing from the 
District Court of Appeal and the Supreme Court of 
Florida.

In Florida, it has always been the rule that review upon 
common law writ of certiorari to a lower court of record 
is limited to two questions only: (1) whether the inferior 
court exceeded its jurisdiction and (2) whether the inferior 
court followed the proper procedure.

Certiorari is not available in Florida to review an errone­
ous decision.

The Supreme Court of Florida, in 1950, in American 
National Bank of Jacksonville v. Marks, supra, reiterated, 
for the express benefit of the Florida bar, this limited scope 
of review which is available by common law certiorari. The 
Supreme Court of Florida has adhered to these limitations. 
Wilson v. McCoy Mfg. Co., 69 So. 2d 659 (1954); Neivert v. 
Evans, 82 So. 2d 599, 600 (1955); Tropical Park v. Batcliff, 
97 So. 2d 169, 174 (1957).

Petitioners challenge neither the jurisdiction of the trial 
or appellate court in this case nor the procedure adopted 
by either.

1 Circuit courts had final appellate jurisdiction in such cases 
under the old constitution. Florida Constitution (1885) Article 
V, §11.

2 There is no statutory certiorari applicable to appeals from 
municipal courts to circuit courts as in the case of appeals from 
civil courts of record to the circuit courts as provided by Florida 
Statutes Annotated §33.12.



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In the cases cited by respondent, in which review of the 
validity of city ordinances was obtained in the Supreme 
Court of Florida upon common law certiorari, the Court 
specifically referred to the limited scope of review on com­
mon law certiorari in Florida which was reiterated by that 
Court in the American National Bank case, supra, and it is 
also clear that in each of these cases the court considered 
the petitioners’ challenge to the jurisdiction of the munic­
ipal court involved. Malone v. City of Quincy, 66 Fla. 52, 
62 So. 922 (1913); Hunt v. City of Jacksonville, 34 Fla. 504, 
16 So. 398 (1894); Mernauglv v. City of Orlando, 41 Fla. 433, 
27 So. 34 (1899).

In the Hunt case, which was the first one decided, the 
court in its opinion specifically referred to the limited scope 
of the review available upon certiorari (at 508) and spe­
cifically pointed out that petitioner, who had been convicted 
of violating a city ordinance, sought certiorari upon a chal­
lenge to the jurisdiction of the municipal court to try him 
for the offense (at 505). His claim was that the offense 
charged had been made an indictable offense by state law 
entitling him to a jury trial which the municipal court could 
not give because limited to trials without juries. In this 
case, however, the Court found no lack of jurisdiction or 
irregularity of procedure.

In the Mernaugh case, which followed, the Court again 
pointed out the limited scope of review (at 442) and again 
specifically pointed out that petitioner sought certiorari 
upon a challenge to the jurisdiction of the municipal court 
on the ground that since the City was without power under 
state law to enact an ordinance prohibiting the sale of 
liquor which he had been convicted of violating, its court 
was without jurisdiction to enforce same (at 436). The 
Court agreed with petitioner and held that the City was 
without authority to pass the ordinance and, therefore, its 
court was without jurisdiction to enforce it.



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In the Malone case, a similar challenge was made to the 
power of the City of Quincy to enact the ordinance which 
petitioner had been convicted of violating1 and the Court 
similarly held that the City being without power to pass the 
ordinance, its court was without jurisdiction to enforce 
same. Although there is no specific reference by the Court 
in its opinion in the Malone case to a challenge to the 
jurisdiction of the municipal court by petitioner, it should 
be noted that in its opinion the Court cites and relies on 
the Hwit case when it again specifically refers to the 
limited scope of review upon common law certiorari (at 
56). It is thus clear that in the Malone case the Florida 
Supreme Court was also proceeding upon the theory that 
petitioner was challenging the jurisdiction of the municipal 
court to try him for the offense.

Here petitioners neither challenge the power of the City 
of Tallahassee to enact an ordinance which purports to 
regulate the seating of passengers on local buses nor the 
power of its court to enforce a regulatory ordinance on this 
subject. The cases cited by respondent are, therefore, not 
apposite here.

II.

The judgments o f the Municipal Court and Circuit 
Court rest on a denial o f petitioners’ claim of violation 
of rights secured by the due process and equal protec­
tion clauses of the Fourteenth Amendment.

As the transcript of the proceedings in the trial court 
discloses, at the close of the respondent’s case, petitioners 
moved for a directed verdict on the ground that the ordi­
nance violates rights secured by the State Constitution and 
by the due process and equal protection clauses of the 
Fourteenth Amendment to the Federal Constitution (T. 62).



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The argument of petitioners’ counsel and the cases cited 
by him show conclusively, however, that his reliance was 
upon rights secured by the Federal Constitution and not 
by the State Constitution (T. 62-69). Consequently, when 
the Municipal Court, in denying the motion, ruled that the 
ordinance was clothed with a presumption of constitution­
ality and that nothing had been presented by way of testi­
mony to overcome this presumption, it is clear that the 
court was invoking this familiar rule with respect to the 
particular constitutional attack made upon the ordinance, 
which, as the record shows, was limited solely to an attack 
on federal constitutional grounds. And where, as here, 
the record clearly spells out that the sole attack upon the 
ordinance was on federal grounds, all doubt- is precluded. 
Konigsberg v. State Bar of California, 353 U.8. 252 (1957).

When petitioners appealed to the Circuit Court, they 
assigned as grounds for appeal, among others, the trial 
court’s refusal to grant their motion for directed verdict. 
The Circuit Court had before it the transcript of the pro­
ceedings in the trial court which showed that petitioners’ 
only attack upon the ordinance was on federal constitu­
tional grounds. An examination of the briefs submitted 
by both petitioners and respondent in the Circuit Court 
shows that neither argument was based on state consti­
tutional grounds, but wholly on federal constitutional 
grounds. Consequently, there can be no doubt that when 
the Circuit Court ruled, in its judgment affirming the trial 
court, that no denial of constitutional rights had been made 
to appear, it was referring to the Federal and not the 
State Constitution. The same is true of that court’s order 
denying petitioners’ motion for review of judgment on 
appeal when it denied same on the ground that it had duly



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considered each ground for appeal when the case was before 
it on appeal.

Respectfully submitted,

T hubgood M arshall 
10 Columbus Circle 
New York 19, N. Y.

Constance B akes M otley 
10 Columbus Circle 
New York 19, N. Y.

F rancisco A. R odriguez 
703 Harrison Street 
Tampa, Florida

Certificate of Service

This is to certify that on the 12 day of March 1958 I 
served a copy of Petitioners’ Supplemental Brief in the 
above-entitled case upon Leo Foster, counsel for respon­
dent, by mailing a copy of same to him at P. 0. Box 669, 
Tallahassee, Florida, via United States Air Mail.

Constance B aker M otley 
Attorney for Petitioners