Shuttlesworth v Birmingham AL Petitioner Brief

    I n  t h e

B n p x m ?  (dourt of %  Mtttfrd & > U U s
October Term, 1963 

No. 168

F eed L. Shuttlesworth,
Petitioner,

City of B irmingham.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF ALABAMA

PETITIONER’S BRIEF

Jack Greenberg 
James M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Peter A. H all 
Orzell B illingsley, Jr.

1630 Fourth Avenue, North 
Birmingham, Alabama

Attorneys for Petitioner

Of Counsel:
M ichael Meltsner 
George B. Smith



I N D E X

Opinions Below ........................................ .......... .......... . 1

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

Constitutional and Statutory Provisions Involved....... 2

Questions Presented ........ ............ .......................... ..........  3

Statement of the Case ......................................................  4

Summary of Argument ........ ............................ ...... .......  10

A rgument............       13

I. Petitioner Was Denied Due Process in That 
He Was Convicted of a Crime on a Record De­
void of Evidence of G uilt....................................  13

II. The Law Under Which Petitioner Was Con­
victed Is Unconstitutionally Vague and Fails 
to Warn That Petitioner’s Conduct Is Made 
Criminal .....      19

III. Petitioner’s Conviction Was Affirmed Under a
Criminal Statute, the Violation of Which Had 
Not Been Charged, Contrary to the Due Proc­
ess Clause of the Fourteenth Amendment to 
the Constitution of the United States ..... .........  20

IV. This Court Is Not Precluded From Reviewing
the Judgment of the Court of Appeals of Ala­
bama Where the Supreme Court of Alabama 
Refused to Consider the Merits Because the 
Certiorari Petition Filed There Was Not on 
“ Transcript Paper” ........................................ .....  22

PAGE

Conclusion 33



11

T able oe Cases:

Accardo v. State, 268 Ala. 293, 105 So. 2d 865 (1958) .... 26
American R. Express Co. v. Levee, 263 U. S. 19 ........... 22, 23
Andersen v. United States, 132 A. 2d 155 (D. C. Mun.

Ct.), aff’d 253 F. 2d 335 (D. C. Cir. 1957)    ...... 18
Anderson v. Alabama, 364 U. S. 877    ........... . 23
Aust v. Sumter Farm & Stock Co., 209 Ala. 669, 96 So.

2d 872 (1923) .......................... ............. ....... ........ ........ 26,27

Bates v. General Steel Tank Co., 36 Ala. App. 261, 55
So. 2d 218 (1951) ................ ........ ..... ......... ............ . 27

Boynton v. Virginia, 364 U. S. 454 ......................... .......  15
Brady v. Brady, 144 Ala. 414, 39 So. 237 (1905) ______ 26
Buchanan v. Warley, 245 U. S. 60 ................................ . 15
Burton v. State, 8 Ala. App. 295, 62 So. 394 (1913) .......  17

Carter v. Texas, 177 U. S. 442 ............ ..... ...................... . 31
City of Montgomery v. Mott, 266 Ala. 422, 96 So. 2d 766

(1957)  ________ ________________________  29
Cole v. Arkansas, 333 U. S. 196.................... '.....11, 20, 21, 22
Connally v. General Construction Co., 269 U. S. 385 .... 20 
Cooper v. Aaron, 358 U. S. 1 ............. .............. ................  15

Daniels v. Milstead, 221 Ala. 353, 128 So. 447 (1930) .... 15

Edge v. Bice, 263 Ala. 273, 82 So. 2d 252 (1955) ...........  29
Edwards v. South Carolina, 372 U. S. 229 ................. .....  20
Elks Lodge v. State, 264 Ala. 223, 86 So. 2d 396 (1956) .. 27
Ex parte Jackson, 212 Ala. 496, 103 So. 558 (1925) .......  26
Ex parte Nations, 154 So. 2d 762 (1963)  ............... . 28
Ex parte Tower Manufacturing Co., 103 Ala. 415, 15

So. 836 (1893) ............ ........ ....... ........ ........... ................  26
Ex parte Wood, 215 Ala. 280, 110 So. 409 (1926) ..........  27

PAGE



I l l

Flournoy v. State, 270 Ala. 448,120 So. 2d 124 (1960) .... 17

PAGE

Garner v. Louisiana, 368 U. S. 157............ ..... ...... .13,15, 22
Gates Lumber Co. v. Givens, 181 Ala. 670, 61 So. 30

(1913) ............................................... ................................ 29
Gayle v. Browder, 352 U. S. 903  ....................................  15
Gober v. Birmingham, 373 U. S. 374  ........................... 23

Hammerstein v, Superior Court, 341 U. S. 491 .....26, 31, 32
Henry v. United States, 361 U. S. 9 8 ..............................  16
Houston v. State, 265 Ala. 588, 93 So. 2d 439 (1957) .... 27 
Hunter v. L. & N. R. R. Co., 150 Ala. 594, 43 So. 802 

(1907) ...................................... ..................... ........ ..........  29

Jemison v. State, 270 Ala. 589,120 So. 2d 751 (1960) .... 28

Kennedy v. State, 39 Ala. App. 676, 107 So. 2d 913
(1958)  .......................... ....... ............ ........... ............ . 18

Ker v. California, 374 U. S. 2 3 ..........................................  16

Lanzetta v. New Jersey, 306 U. S. 451...... ....... ...... ..... 19, 20

McMaster v. Gould, 276 U. S. 284 ..................................  32
Maddox v. City of Birmingham, 255 Ala. 440, 52 So. 2d

166 (1951).........................................................................  27
Mapp v. Ohio, 367 U. S. 643 ........................... ..................  16
Metropolitan Life Ins. Co. v. Korneghy, 260 Ala. 521,

71 So. 2d 301 (1954) ...........    26
Mitchell v. Helms, 270 Ala. 8, 115 So, 2d 664 (1959) __  28
Morgan Plan Co. v. Beverly, 255 Ala. 235, 51 So. 2d 179 

(1951) ...............................................................................  28

Naler v. State, 25 Ala. App. 486, 148 So. 880 (1933) .... 17 
Nesmith v. Alford, 318 F. 2d 110 (5th Cir. 1963) ...........  16



IV

Paterno v. Lyons, 334 U. S. 314 .................................... 22
Patterson v. Sylacauga, 40 Ala. App. 239, 111 So. 2d 25

(1959)  ........... ..................... ...... ........ ..................... ..  17
Patton v. Colbert County, 265 Ala. 682, 92 So. 2d 691

(1957) ................ ....... ..................... ................. ...............  29
Peterson v. State, 248 Ala. 179, 27 So. 2d 30 (1946)____ 26
Pugh v. Hardyman, 151 Ala. 248, 44 So. 389 (1907) .......  29

Quinn v. Hannon, 262 Ala. 630, 80 So. 2d 239 (1955) .... 29

Redwine v. State, 36 Ala. App. 560, 61 So. 2d 715
(1952) ........................................... .................................... 30

Rogers v. Alabama, 192 U. S. 226 ..... ..... .......................25, 31

Schmale v. Bolte, 255 Ala. 115, 50 So. 2d 262 (1951) .....  29
Shuttlesworth v. Alabama, 373 U. S. 262 ......................  23
Simmons v. Cochran, 252 Ala. 461, 41 So. 2d 579

(1949) ........ ................................................. .....................  29
Southern Electric Co. v. Stoddard, 269 U. S. 186...... . 22
Staub v. Baxley, 355 U. S. 313 ........................... ...... ....25, 31
Stovall v. State, 257 Ala. 116, 57 So. 2d 642 (1952) ......  27

Tarver v. State, 43 Ala. 354 (1869) ___       17
Taylor v. Louisiana, 370 U. S. 154 ;.................... .......... 13,15
Taylor v. State, 27 Ala. App. 538, 175 So. 698 (1937) .... 17
Thompson v. City of Louisville, 362 U. S. 199______13,18,

19, 22

United States v. L. Cohen Grocery Co., 255 U. S. 81 .... 20

Williams v. Georgia, 349 U. S. 375 ............................ .....  28
Wilson v. Howard, 266 Ala. 636, 98 So. 2d 425 (1957) .... 29
W olf v. Colorado, 338 U. S. 25 ............... ......................  16
Wood v. Wood, 263 Ala. 384, 82 So. 2d 556 (1955) ___  29
Wright v. Georgia, 373 U. S. 284 ...................... ....... 15,16,19

PAGE



V

Statutes and R ules :

28 United States Code, §1257 .........     22

28 United States Code, §1257(3) .......................    1

Alabama Constitution of 1901, §140...... ..... ....................  23

Alabama Code, Title 13, §86............       23

Alabama Code, Title 14, §33 ..........................     17

Alabama Code, Title 15, §153.........................     15

Alabama Code, Title 15, §154............................................  15

Alabama Supreme Court Rule 8 ......................................  30

Alabama Supreme Court Rule 21 ....    25

Alabama Supreme Court Rule 32, Appx, to Tit. 7, Ala.
Code 1958 ................................. ............................2,10, 24, 26

Alabama Supreme Court Rule 39, Appx. to Tit. 7, Ala.
Code 1958 ........................................................................23, 30

General City Code of Birmingham of 1944, § 4 ............... 2

PAGE

General City Code of Birmingham of 1944, §825 ....2, 9,13,
17.19, 20, 21

General City Code of Birmingham of 1944, §856 ....2, 4, 9,10,
13.14.19, 20

Other A uthorities :

1963 Report of United States Commission on Civil
Rights ...............................................................................  25

Mr. Justice Douglas, “Vagrancy & Arrest on Suspi­
cion” , 70 Yale L. J. 1 ...... ............. ..... ...... .....................  16

Jones, Alabama Practice and Forms, §§6392, 6393.......  30

Rosenberg & Weinstein, Elements of Civil Procedure 
(Foundation Press, 1962)  ............................................  30



In t h e

n p x x n x x  ( to r t  a! %  Inttrtu B t n t x B
October Term, 1963

No. 168

F eed L. Shuttlesworth,

■v.-
Petitioner,

City of Birmingham.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF ALABAMA

PETITIONER’S BRIEF

Opinions Below

The opinion of the Court of Appeals of Alabama (R. 59- 
60) is reported at 149 So. 2d 921. The opinion of the Su­
preme Court of Alabama (R. 65) is reported at 149 So. 2d 
923.

Jurisdiction

The judgment of the Court of Appeals of Alabama (R. 
58) was entered on October 23, 1962. An order overruling 
an application for rehearing in that court was entered No­
vember 20, 1962 (R. 61). A petition for writ of certiorari 
filed in the Supreme Court of Alabama was stricken on 
December 20, 1962 (R. 67) and an application for rehear­
ing in that court was overruled February 28, 1963 (R. 67). 
The jurisdiction of this Court rests on 28 United States 
Code, Section 1257(3), petitioner having asserted below 
and claiming here the deprivation of rights, privileges and



2

immunities secured by the Constitution of the United 
States. The petition for certiorari in this Court was filed 
May 29, 1963, and certiorari was granted October 14, 1963 
(E. 68).

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth 
Amendment to the Constitution of the United States.

2. This case also involves Section 856 of the General 
City Code of Birmingham.

“Any person who knowingly and wilfully opposes 
or resists any officer of the city in executing, or at­
tempting to make any lawful arrest, or in the dis­
charge of any legal duty, or who in any way interferes 
with, hinders or prevents, or offers, or endeavors to 
interfere with, hinder or prevent such officer from dis­
charging his duty, shall, on conviction be punished as 
provided in section 4.” *

3. This case also involves Section 825 of the General 
City Code of Birmingham.

“ Any person who commits an assault, or an assault 
and battery, upon another person, shall, on conviction, 
be punished as provided in section 4.”

4. This case also involves Rule 32 of the Revised Rules 
of Practice in the Supreme Court of Alabama (Code of 
Alabama, 1958, Appendix to Title 7, p. 1172).

# Section 4 of the City Code provides, inter alia, for punish­
ment “by a_ fine not exceeding one hundred dollars, or by im­
prisonment in the city jail, workhouse or house of correction or 
at hard labor upon the streets or public works for not exceeding 
six months, or by both such fine and imprisonment. . . . ”



3

■'‘Buie 32. Paper of Applications for Bail, Manda­
mus, etc., Must Correspond with Transcript.

All applications to this court to admit bail, or for the 
writ of habeas corpus, mandamus, or other writ or 
process depending on motion of this court, together 
with all papers and proceedings touching the same, 
shall be presented on folio paper, of the pattern now 
required by the rule for ordinary transcripts, so that 
the same may be in suitable form for binding; and no 
application shall be heard that is not so presented.”

Questions Presented

1. Whether petitioner was denied due process of law 
by his conviction on a record devoid of any evidence of 
guilt?

2. Whether petitioner was denied due process in that he 
was convicted under a law which failed to give fair warn­
ing that his conduct was prohibited?

3. Whether petitioner was denied due process of law 
when he was charged, tried and convicted under a law pro­
hibiting interfering with a police officer, but the conviction 
was affirmed on appeal, on the ground that he had com­
mitted another crime for which the same sentence might 
be imposed, i.e., assault, even though there had been no ac­
cusation or trial on the issue of assault?

4. Whether there is an adequate non-federal ground 
which precludes review in this Court where the Alabama 
Court of Appeals ruled against petitioner on the merits, 
but the Alabama Supreme Court struck a petition for writ 
of certiorari that sought to invoke its discretionary juris­
diction on the ground that the petition was on the wrong 
size paper?



Statement of the Case

Petitioner, Reverend Fred L. Shuttlesworth, was arrested 
May 17,1961, at the Greyhound Bus Station in Birmingham, 
Alabama, and charged with violating Section 856, General 
City Code of Birmingham of 1944. The complaint filed 
against him in the Circuit Court of the Tenth Judicial Cir­
cuit of Alabama1 charged that he (R. 4 ):

. . . did knowingly and wilfully interfere with, hinder, 
or prevent a police officer of the City of Birmingham; 
namely, Jamie Moore, Police Chief for the City of 
Birmingham, in the discharge of his legal duty in that 
said defendant did knowingly and wilfully place him­
self between said officers and a group of people com­
monly called “ freedom riders” when said people were 
being placed in protective custody by said officer, and 
said defendant did knowingly and wilfully refuse to 

■ move out of the way of said police officer after being 
so ordered, contrary to and in violation of Section 856 
of the General City Code of Birmingham of 1944.

On the day in question, Reverend Shuttlesworth, pastor 
of a Birmingham church and a well known civil rights 
leader there (R. 46-47), went to the bus station with a group 
of persons referred to in testimony as “ freedom riders.” 
The group, eighteen or more persons, including petitioner, 
had tickets for bus travel to Montgomery, Alabama, and 
arrived at the terminal between two and three o’clock in the 
afternoon. A crowd had gathered in nearby streets and 
about thirty to forty police officers were on duty in the 
area (R. 28-29). Police Captain Garrison said that the

1 Petitioner was originally charged and convicted of the same 
offense in the Recorder’s Court of the City of Birmingham. He 
was sentenced to pay $100 fine and to perform hard labor for 
180 days in that court. Upon posting an appeal bond (R. 3), he 
obtained a trial de novo in the Circuit Court.



5

crowd had a “belligerent”  attitude directed at the freedom 
riders (B. 29), and he thought their lives were in danger 
(B. 27). The police checked to see that all persons in the 
station were passengers with tickets (B. 25, 28). Shuttles- 
worth and his group had difficulty in getting transportation 
when a driver refused to drive a bus scheduled to leave 
between two and three o’clock (B. 43, 29); the group de­
cided to wait for the next bus (B. 43).

At approximately four o ’clock Birmingham Police Chief 
Jamie Moore went to the station and approached the group 
on a loading platform. He s a i d w e n t  out and told 
that group of people in a voice loud enough to be heard 
who I was, I identified myself, and told them that due to 
the circumstances that day that I as Chief of Police was 
arresting them and taking them into protective custody of 
the City of Birmingham” (B. 15). According to the Chief, 
Shuttlesworth, who had been at a pay phone, “ came on out 
there about the time that I was talking to those people” 
(B. 16). Then, in the Chief’s words (B. 16):

Well, he [Shuttlesworth] walked around to my left 
right close to me and got eventually between—I say 
eventually, it wasn’t a lot of time there, and I told him 
to leave the bus station. I called him by his name, I 
called him Fred, that he was not concerned with what 
was happening there, and he walked around and then 
got between me and some of those people I was talking 
to and I believe I asked him to go—to get out of my 
way, and he said, if those people have to be arrested, 
why, he wanted to be arrested also.

The Chief then ordered that petitioner be taken into cus­
tody. On cross-examination Chief Moore gave some slight 
additional detail. He said that Shuttlesworth was two or 
three feet away from him, that he spoke to Shuttlesworth 
first, that petitioner did not put his hands on anyone, and



6

was not profane or loud (E. 18-19). Chief Moore testified 
(E. 18):

A. I told him, “Fred— ” I called him Fred—I said, 
“ You are not concerned in this. We are engaged in 
business,” or words to that effect. “ You get out of my 
way and don’t bother us.”

Q. Well, now, what occasioned you to speak to him 
at that time? A. He was in my way and he was asking 
what was happening, what was taking place, and 1 had 
already announced to those people in a good loud clear 
voice who I was and my intention.

Q. Now, did he do anything other than ask those 
questions as to what was happening? A. He walked 
around to my left and was between me and some of 
those people.

Q. Did he do any other act? A. Your Honor, I 
would like for him to ask specifically, if he will, what 
he has in mind there.

Q. Did he do any physical act? Did he put his hands 
on anyone? Did he do anything other than ask the 
questions and walk around to your left? A. He didn’t 
put his hands on anyone that I saw, if that is what you 
are talking about.

Q. Was he profane, Chief, or loud? A. He wasn’t.
Q. Or argumentative? A. He was not profane.
Q. Was he loud and argumentative while talking to 

you? A. I wouldn’t say he was loud.

It may be noted that there was no statement that Shut- 
tlesworth blocked the Chief’s path or that the Chief was 
trying to walk anywhere; the Chief merely said that peti­
tioner “walked around and got between me and some of 
the people I was talking to” (E. 16), and that “he was. in 
my way and he was asking what was happening, what was 
taking place” (E. 18-19).



7

The entire group was arrested without resistance (E. 26) 
and taken to the City Jail,2 but no charge was made against 
any member of the group except Shuttlesworth (E. 19, 54); 
the rest of the group finally got a bus to Montgomery the 
following Saturday (E. 23).

The testimony of police Captain Garrison who was stand­
ing with Chief Moore at the time of the arrest was sub­
stantially the same as the Chief’s. On cross, Captain Gar­
rison was asked (E. 25):

Q. Did he at any time exhibit any pugnacious atti­
tude? Did he put his hands on anyone or offer any 
argument? A. Not verbally, but he didn’t move.

Q. But he asked what was going on and he didn’t 
move ? A. To the best of my recollection he asked what 
was going on and he did make the one statement that 
if they were placed in jail he wanted to go too.

Another officer, Captain Warren, described the incident in 
similar fashion,3 stating that neither the Chief nor the peti­
tioner raised his voice in speaking to the other (E. 35).

2 One member of the group said that she was confined in the 
City Jail for 12 hours before she was released without being 
charged (R. 54).

3 Captain Warren testified (R. 34):
“A. The conversation, such as it was that took place between 
Chief Moore and the Reverend Shuttlesworth was at the fore­
front of the group of Freedom Riders. The Chief was at the 
front of them at the bus and the Reverend Shuttlesworth was 
there and the Chief endeavored then after he placed them 
under protective custody to get them down the ramp toward 
the waiting patrol wagon, and the Reverend Shuttlesworth 
was in between the Chief and the Freedom Riders going along 
with them after having been asked not to interfere.

Q. So, he was going along with them down the ramp? A. 
That is correct.

Q. Towards the waiting patrol wagon? A. In that general 
direction, yes.”



Police officer Trammell testified that when the Chief ad­
dressed the group Shuttlesworth “ wanted to know why they 
were being placed under protective custody” (E. 36); he 
heard the Chief ask him to move out of the way but did not 
recall whether petitioner did move (R. 37). He said that 
the group was standing at a bus stall, apparently about to 
board a bus, when the Chief came up ; and that he arrested 
petitioner on instructions of his superior officer (R. 40).

Shuttlesworth testified that he was with the group when 
Chief Moore walked up to them. His version of the con­
versation was as follows (R. 43-44):

A. He identified himself and said, “ I am Chief Moore,” 
or words to that effect, Chief of the Birmingham City 
Police, and we have decided to arrest you all for your 
own protection.”

And I asked him what did he say, and he said he 
decided to arrest us for our own protection. And then 
he recognized me in the crowd and he said, “ Shuttles­
worth, are you with the group ?”

I said, “ I am. We have been trying to get the bus out 
for two hours or more.”

And he said, “Well, you go on, I don’t want any 
trouble out of you.”

And I said, “ I am with the group and I want to catch 
a bus.” And he said, “ If you don’t go on, I will have to 
arrest you.” And I said, “Well, whatever happens on 
all them will happen to m e; we are all together.”

So, he asked—I don’t know— one of the officers to 
arrest me, and they took me in the patrol car and the 
rest of them in the wagon. We all started off about 
the same time.

Testimony by defense witness Vera Brown was similar
(R. 53-54).



9

In short, all the witnesses agreed that petitioner was 
entirely peaceful in his conduct and in his language; that 
he did nothing to resist arrest or to stop his companions 
from being arrested; and that he merely inquired why they 
were being arrested and asked that he be treated as his 
companions were. Neither the Chief nor any of the other 
officers gave any indication why it was desired to arrest each 
member of the group of freedom riders except Shuttles- 
worth, and place them under “protective custody.”

On December 5, 1961, petitioner was tried before the 
Circuit Court sitting without a jury and found “ guilty as 
charged in the complaint” (R. 10). The trial court rendered 
no opinion. Shuttlesworth was sentenced to 180 days at 
hard labor and a $100 fine and costs. In default of payment 
of the fine and costs he is to serve additional 52 day and 
16 day periods at hard labor (R. 10-11).

Prior to, during, and after the trial petitioner made 
appropriate motions objecting to the ordinance, the com­
plaint, and the conviction on Fourteenth Amendment 
grounds (Motion to Quash, R. 5-6; Demurrers, R. 7-8; 
Motion to Exclude, R. 8-9); each of the motions was over­
ruled (R. 9-10, 13, 42, 55). On appeal to the Court of Ap­
peals of Alabama, petitioner assigned as errors the over­
ruling of the motions mentioned above (R. 56). The Court 
of Appeals affirmed in a brief opinion (R. 59-60), in which 
it described “protective custody” as “ the receiving of some­
one who places himself voluntarily under the protection of 
a peace officer.” The Court mentioned petitioner’s argu­
ment that the Chief was not acting in the discharge of any 
legal duty but said that this argument “ can avail the appel­
lant nothing, because his conduct was also that prohibited 
by §825 of the City Code which provides for the same degree 
of punishment as §856, §825 making it an offense against 
the City for any person to commit an assault” (R. 60).



10

The Court referred to the common law definition of assault, 
and said that “ it is our view that an assault is an offense 
included in §856 in the alternative here pertinent” (E. 60). 
The Court then concluded (E. 60) :

Inasmuch as Shuttlesworth blocked the chief’s path 
using words from which the intent to do so “ in rudeness 
or in anger” could probably and rationally be inferred, 
there was no error in his conviction, since he could 
have been clearly convicted of a simple assault.

After the Court of Appeals denied rehearing (E. 61), 
Shuttlesworth petitioned the Supreme Court of Alabama to 
grant a writ of certiorari (E. 62-64), and filed a brief to 
which the City filed a reply brief likewise addressed to the 
merits of the case. The Supreme Court of Alabama, how­
ever, ordered that the petition for certiorari be stricken 
because it was not filed on “ transcript paper” as required 
by that court’s Eule 32 (E. 65), and denied rehearing 
(E. 66).

Summary of Argument

Petitioner was denied due process of law secured by the 
Fourteenth Amendment in that he was convicted of crime 
without evidence of guilt. He was charged with interfering 
with an officer in the exercise of his legal duty. The police, 
however, were not exercising any legal duty when they 
took freedom riders into “protective custody.” There ap­
pears to have been no such concept as “protective custody” 
in Alabama law, prior to petitioner’s arrest, but as defined 
by the Alabama Court of Appeals, such custody contem­
plates a voluntary surrender, which did not occur here. In 
fact, the police illegally arrested freedom riders in the 
exercise of federally protected rights. But beyond this, 
petitioner did not, in fact, “ interfere” with the police in



11

whatever it was they were doing. He was merely politely 
and quietly inquiring concerning their treatment of his 
companions.

That petitioner was not guilty of “ interfering” may he 
discerned from the fact that the Court of Appeals evaded 
passing on the validity of the conviction for that offense, 
but affirmed by holding petitioner guilty of the crime of 
assault, which is punishable by the same penalty as inter­
fering. But neither was there evidence of “ assault.” The 
Alabama law of assault has heretofore involved some ele­
ment of violence as indicated by the cases cited below. 
There was, however, no violence here. Petitioner was held 
to have committed an assault because he spoke in “ rudeness 
and anger,” but neither is there any evidence that this oc­
curred.

Moreover, the ordinances under which petitioner was 
charged and convicted are unconstitutionally vague as ap­
plied to his situation. Neither the ordinance dealing with 
interfering with a police officer, not that forbidding assault 
gives any notice that mere inquiry of a police officer as to 
why he is arresting one’s companions in the lawful exercise 
of their rights as bus passengers constitutes either the 
crime for which petitioner was originally convicted or 
the crime for which he was held guilty in the Court of 
Appeals.

The conviction below also should be reversed because it 
was affirmed under an ordinance, the violation of which had 
not been charged, contrary to the due process clause of the 
Fourteenth Amendment. Petitioner was charged with in­
terfering with the police officer but the conviction was af­
firmed on the ground that he had committed an assault. 
Cole v. Arkansas, 333 IT. S. 196, holds that it is as much a 
violation of due process to send an accused to prison fol­
lowing a conviction of a charge on which he was never tried



12

as it would be to convict him upon a charge that was never 
made. Cole is directly in point.

This Court has jurisdiction to review the cause notwith­
standing refusal by the Supreme Court of Alabama to re­
view for the reason that the petition filed with it was not on 
transcript paper. Certiorari in this case properly runs to 
the Alabama Court of Appeals, the appellate court below 
the State Supreme Court, and the highest court of the state 
in which a review of right could be had. The Court of 
Appeals heard and necessarily disposed of the constitu­
tional claim. The State Supreme Court could have con­
sidered the merits despite the procedural flaw but exercised 
a discretionary power not to pass upon these claims, and 
where it has discretion either to hear or not to hear, its 
refusal to pass upon the federal questions cannot rob this 
Court of jurisdiction. Moreover, its refusal was based upon 
a highly formalistic and technical procedural rule which 
has no relation to the decision making process, the rights of 
the parties in this case, or the administration of the flow of 
business in the Alabama courts as it affects the rights of 
other litigants. The rule relating to the size of paper of 
certiorari petitions is based upon the fact that the record 
racks in the clerk’s office are of a certain size and relates to 
binding of the record. There is no adequate and substantial 
nonfederal ground which precludes review here.

Finally, the judgment of the Alabama Court of Appeals, 
the highest court where review could be had as a matter of 
right, is reviewable here notwithstanding the fact that the 
Alabama Supreme Court may have declined to exercise its 
discretionary certiorari jurisdiction because of an adequate 
state law ground.



13

A R G U M E N T

I.

Petitioner Was Denied Due Process in That He Was 
Convicted of a Crime on a Record Devoid of Evidence 
of Guilt.

The judgment below should be reversed because there 
was no evidence of petitioner’s guilt of any crime. Thomp­
son v. Louisville, 362 U. S. 199; Garner v. Louisiana, 368 
U. S. 157; Taylor v. Louisiana, 370 U. S. 154.

Because of the peculiar treatment which the Alabama 
Court of Appeals accorded this case—putting aside the 
charge of interfering with an officer (Section 856) and find­
ing petitioner guilty of another offense, i.e. assault (Section 
825)—petitioner’s argument is divided as follows. First, it 
will be demonstrated that there w’as no evidence that peti­
tioner interfered with Chief Moore in the discharge of any 
legal duty as charged in the complaint. Second, it will be 
shown that there was no evidence that petitioner committed 
an assault. In a subsequent portion of the argument (part 
II), it will be shown that neither ordinance gave fair warn­
ing that petitioner’s conduct was criminally punishable, 
and that the conviction thus denies him due process on the 
ground of vagueness. Then it will be urged (in part III 
of the argument) that the affirmance of petitioner’s con­
viction on the theory that he committed an assault—in 
violation of an ordinance under which he had been neither 
charged, tried, nor convicted—violated due process.

A careful review of the trial evidence leads to the in­
escapable conclusion that there was no proof that petitioner 
interfered with, hindered, or prevented Chief Moore from 
discharging any legal duty. Indeed this failure of proof



14

might be surmised from the manner in which the opinion 
of the Alabama Court of Appeals attempted to escape the 
issue by holding petitioner guilty of another offense sub­
ject to the same punishment. “ There was no error in his 
conviction,” the Court of Appeals held, “ since he could 
have been clearly convicted of a simple assault”  (R. 60).

This attempt to circumvent the question of whether there 
was evidence to sustain the charge under §856 is readily 
explainable when it is considered that there was no evi­
dence either that Chief Moore was performing any legal 
duty or that Shuttlesworth interfered with, hindered, or 
prevented its exercise. Chief Moore walked up to the 
group of persons traveling with petitioner and announced 
peremptorily that he “ was arresting them and taking them 
into custody of the City of Birmingham” (R. 15). Peti­
tioner, who according to the Chief arrived during this 
announcement (R. 16) immediately walked up to the Chief 
and asked “ what was happening,' what was taking place” 
(R. 18-19). The Chief told Shuttlesworth “ to leave the bus 
station” , “ to get out of my way” , and that “he was not 
concerned with what was happening there” . When Shuttles­
worth did not move, but responded by saying “ if those 
people have to be arrested, why, he wanted to be arrested 
also” (R. 16) then the Chief ordered him placed under 
arrest and subsequently charged him under §856. Shuttles­
worth and the group of freedom riders traveling with biin 
were arrested without any resistance.

First, it is obvious that Chief Moore was not performing 
a “ legal duty” or even a lawful act in purporting to arrest 
Shuttlesworth’s companions for “protective custody” . No 
such crime or concept as “ protective custody” appears in 
the Birmingham or Alabama Codes. The Alabama Court of 
Appeals said protective custody was “ the receiving of some 
one who places himself voluntarily under the protection



15

of a peace officer” (R. 59). There is nothing in the record 
to indicate that Chief Moore intended that the gronp would 
have any choice—he told them that he “was arresting them” 
(R. 15); nothing shows that they agreed to the custody. 
Certainly if he was asking that the group voluntarily sub­
mit to his custody for protection, petitioner’s questions as 
to what was going on would have been entirely natural and 
appropriate. But actually it rather plainly appears that 
the group was given no choice about the matter, that the 
arrest was unjustified, and that petitioner’s questions were 
appropriate in the context of an unjustified arrest. It is 
quite clear that the members of the group had violated no 
law which justified an arrest by Chief Moore. They had 
a right to use public buses without regard to racial seg­
regation customs (Boynton v. Virginia, 364 U. S. 454; Gayle 
v. Browder, 352 IT. S. 903), and their right may not be 
abridged on account of “ the possibility of disorder by 
others”  ( Wright v. Georgia, 373 IT. S. 284; Taylor v. Louisi­
ana, 370 U. S. 154; Garner v. Louisiana, 368 IT. S. 157, 174; 
ef. Buchanan v. Warley, 245 U. S. 60, 80-81; Cooper v. Aaron, 
358U. S .1).

As the freedom rider group had not committed any crime 
—there has never been any claim that they did—their arrest 
was unlawful. Alabama law authorizes arrests only under 
warrant (Tit. 15, Ala. Code §153), or without a warrant 
for offenses in the presence of an officer or where there is 
“ reasonable cause” to believe the person has committed a 
felony (Tit. 15, Ala. Code §154). See Daniels v. Milstead, 
221 Ala. 353, 128 So. 447 (1930). The Fifth Circuit recently 
said that “ There is yet no single Alabama case to indicate 
that the suspected threat of mob violence at the hands of 
the law breakers may be avoided by arresting those whose 
actions are perfectly peaceful and legally and constitu­
tionally protected merely because such lawful and peaceful 
conduct provocatively incites the incipient mob.” Nesmith



16

v. Alford, 318 F. 2d 110, 120 (5th Cir. 1963). Whatever the 
Alabama law governing arrests without warrants might be, 
surely there was nothing in the freedom riders’ peacefully 
waiting for a bus that could meet the test of “probable 
cause” embodied in the Fourth Amendment (Henry v. 
United States, 361 U. S. 98,102) and made applicable to the 
states by the due process clause of the Fourteenth ( Wolf 
v. Colorado, 338 U. S. 25; Mapp v. Ohio, 367 U. S. 643; 
K er  v. California, 374 U. S. 23). The Fourth Amendment 
no more permits arrests for “ protective custody” than it 
permits arrests on “ suspicion” or arrests “ for investiga­
tion” . Henry v. United States, supra; ef. Mr. Justice Doug­
las, “Vagrancy and Arrest on Suspicion” , 70 Yale Law J., 
1, 12-13. The sum of the matter is that if Shuttlesworth 
did interfere with Chief Moore, it was while the latter was 
making an illegal arrest and not while he was performing a 
legal duty.

But Shuttlesworth’s mere act of asking the Chief what 
was happening did not “ interfere” with the arrests or 
“ prevent or hinder” them. The Chief had already told the 
assembled group that they were under arrest and none re­
sisted in any way. Nor can Shuttlesworth’s failure to in­
stantly obey the chief’s command “ to go—to get out of my 
way” and “ to leave the bus station” constitute an unlawful 
interference with the Chief. This did not in fact prevent 
or hinder the arrests, but in any event Shuttlesworth had 
no duty to “ obey the command of an officer if the command 
itself is violative of the Constitution” (Wright v. Georgia, 
373 U. S. 284), and Shuttlesworth had a plain right to be 
in the bus station, as well as to inquire as to the reason 
for the arrest of his companions.

It is also apparent that petitioner never assaulted Chief 
Moore or anyone else, at least as assault has been defined



17

in prior Alabama decisions and as it was defined by the 
Court of Appeals in this case.

Neither the Birmingham City Code (§825), nor the Ala­
bama Code (Tit. 14, §33) contain any definition of the 
crime “ assault” ; the court below made reference to the 
common law definition of the crime without elaboration or 
citation (R. 60). But the Alabama courts have many times 
set out their common law definition of assault in language 
which clearly excludes petitioner’s conduct. They have de­
fined assault as “any attempt or offer, with force or vio­
lence, to do a corporal hurt to another, whether from malice 
or wantonness, with such circumstances as denote, at the 
time, an intention to do it, coupled with a present ability 
to carry such intention into effect.” Tarver v. State, 43 
Ala. 354, 356 (1869). To the same effect see Flournoy v. 
State, 270 Ala. 448, 451, 120 So. 2d 124 (1960); Taylor 
v. State, 27 Ala. App. 538, 175 So. 698 (1937): Burton v. 
State, 8 Ala. App. 295, 62 So. 394 (1913); Naler v. State, 
25 Ala. App. 486, 148 So. 880 (1933). There was simply 
no evidence at all that Shuttlesworth made any “ attempt 
or offer” to “ do a corporal hurt” to Chief Moore, and there 
is not a hint of “ force or violence” on his part.

It is mystifying to ponder how the Court of Appeals 
could have thought petitioner guilty of assaulting Chief 
Moore without finding him guilty of interfering with him. 
In any event, the Court of Appeals found an assault be­
cause it said that petitioner “ blocked the chief’s path using 
words from which the intent to do so fin rudeness or in 
anger’ could probably and rationally be inferred” . Apart 
from the fact that this was a new and unique statement of 
the Alabama law of assault, and that none of the cases 
cited by the court below remotely resemble what occurred 
here,4 there was simply no evidence that petitioner either

4 Among the cases cited by the court below were Patterson v. 
Sylacauga, 40 Ala. App. 239, 111 So. 2d 25 (1959) where the



18

“ blocked the chief’s path” or used any words “ in rudeness 
or in anger”. There was no evidence that the Chief was 
attempting to walk anywhere, and none that petitioner 
“ blocked his path” or barred his way. At most petitioner 
moved in front of the chief to ask him a question while 
the chief was standing and talking with the group. There 
was nothing to indicate that petitioner’s language was rude 
or angry in tone or in content; indeed, all the evidence is 
to the contrary. There is nothing unusual, and certainly no 
assault, in standing near a person while talking to him, 
which is all that the evidence shows Shuttlesworth did.

It is a “ violation of due process to convict and punish a 
man without evidence of his guilt” . Thompson v. Louis­
ville, 362 U. S. 199, 206. Inquiring of a police officer as to 
what is happening to one’s companions when they are 
ordered arrested in “ protective custody” , and refusing to 
leave a bus station where one has a right to be as a paying 
passenger, is neither an interference with an officer under 
Birmingham Code §856 nor an assault punishable under 
city code §825. The conviction should be reversed and the 
petitioner discharged.

defendant, among other things, advanced on an officer with a 
butcher knife and subsequently knocked him across a room; Ken­
nedy v. State, 39 Ala. App. 676, 107 So. 2d 913 (1958) where the 
defendant fought with the sheriff until two deputies came to his 
assistance and subdued him; and Andersen v. United States, 132 
A. 2d 155 (D. C. Mun. Ct.) aff’d 253 F. 2d 335 (D. C. Cir. 1957) 
where the defendant pushed a policeman.



19

II.

The Law Under Which Petitioner Was Convicted Is 
Unconstitutionally Vague and Fails to Warn That Peti­
tioner’s Conduct Is Made Criminal.

The factors which make it apparent that there was no 
evidence to support the conviction under §856 (and/or 
§825) may also enable it to be perceived as constituting a 
conviction based upon a law (or laws) which failed to give 
fair warning. Indeed Thompson v. Louisville, 362 U. S. 199, 
206; rested in part upon Lametta v. Netv Jersey, 306 U. S. 
451, a leading case articulating the vice of vague criminal 
laws. Petitioner had a perfect right, founded on the Four­
teenth Amendment, to be present and to await his bus in 
the public bus terminal and a similar right to inquire as to 
the basis for the unlawful arrest of his companions. As 
this Court said in Wright v. Georgia, 373 U. S. 284:

“ & generally worded statute which is construed to
punish conduct which cannot constitutionally be pun­
ished is unconstitutionally vague to the extent that it 
fails to give adequate warning of the boundary between 
the constitutionally permissible and constitutionally im­
permissible applications of the statute. Cf. Winters v. 
New York, 333 U. S. 507; Stromberg v. California, 283 
IT. S. 359; see also Cole v. Arkansas, 333 IT. S. 196.”

There is nothing in §856 which gives warning that one 
can be punished for refusing to obey an officer’s unjustified 
command to leave a public bus terminal, or punished for a 
mere peaceful inquiry as to the reason for an officer’s arrest 
of one’s companions, and certainly not where the officer’s 
contemporaneous statement of the basis for the arrest— 
e.g. “ protective custody”—plainly reveals it to be an un­
lawful arrest. The assault ordinance equally fails to warn



2 0

that this type of peaceful conduct is punishable, there being 
nothing in the text of the ordinance or in the common law 
definition of assault often repeated by the Alabama courts 
from which one could so infer. It would require extraordi­
nary prescience to know that a conversation such as peti­
tioner’s conversation with Chief Moore is criminally pun­
ishable. Convictions under criminal laws which give no 
adequate notice that the conduct charged is proscribed vio­
late the due process clause of the Fourteenth Amendment. 
Lametta v. New Jersey, 306 U. S. 451; Connally v. General 
Construction Co., 269 U. S. 385; United States v. L. Cohen 
Grocery Co., 255 IT. S. 81; Edwards v. South Carolina, 372 
U. S. 229.

III.
Petitioner’s Conviction Was Affirmed Under a Crimi­

nal Statute, the Violation of Which Had Not Been 
Charged, Contrary to the Due Process Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

This Court’s holding in Cole v. Arkansas, 333 U. S. 196, 
compels reversal of this conviction. The complaint under 
which petitioner was charged, tried and convicted alleged 
that he “ did knowingly and wilfully interfere with, burden 
or prevent a police officer of the City of Birmingham; . . . 
in the discharge of his legal duty,” “ in violation of Section 
856” of the Birmingham City Code.

Petitioner argued to the Alabama Court of Appeals that 
Ms conviction under §856 should be reversed because based 
on no evidence. Without discussing this issue, the Court of 
Appeals held that “ there was no error in his conviction 
since he could have been clearly convicted of simple assault” 
under §825 (R. 60).



21

"Whatever may be the meaning of the two city ordinances 
involved here, it is clear that they proscribe separate and 
distinct offenses, notwithstanding that they are both punish­
able under the same code provision which deals with all 
misdemeanors under the Birmingham Code. The problems 
of proof and defense are obviously different. "Whatever the 
relationship between the two laws, and the opinion below 
leaves this in substantial confusion, it is clear that the 
complaint never warned Shuttlesworth that he had to de­
fend against a charge of assault or be at all concerned 
with §825, and that the trial court never found him guilty 
under §825.

This disposition of the appeal denies due process, for it 
rests affirmance upon an assault ordinance under which 
petitioner had never been charged, tried or convicted. 
Indeed the word “ assault” was never mentioned at any 
time during the trial. This disposition of the case disre­
gards one of the most fundamental requirements of due 
process—that a person be informed of the specific charge 
made against him and be heard in defense thereof. An 
affirmance of this kind in effect convicts the defendant 
without a trial, as was noted in Cole v. Arkansas, 333 U. S. 
196, unanimously reversing a conviction in similar circum­
stances :

No principle of procedural due process is more 
clearly established than that notice of the specific 
charge, and a chance to be heard in a trial of the issues 
raised by that charge, if desired, are among the con­
stitutional rights of every accused in a criminal pro­
ceeding in all courts, state or federal. Be Oliver, 333 
U. 8. 257, 273, decided today and cases there cited. . . . 
It is as much a violation of due process to send an 
accused to prison following conviction of a charge on



22

which he was never tried as it would be to convict 
him upon a charge that was never made. Dejonge v. 
Oregon, 299 U. S. 353, 362. (333 U. S. at 201.)

Where, as here, a state provides an appellate procedure, 
the proceedings in the appellate court are “ a part of the 
process of law” under which a defendant is held in custody, 
and must meet basic standards of fairness. Cole v. Arkan­
sas, 333 U. S. at 201. This Court has not departed from 
the simple and just proposition stated in Cole,5 and should 
not do so now.

IV.

This Court Is Not Precluded From Reviewing the Judg­
ment of the Court of Appeals of Alabama Where the 
Supreme Court of Alabama Refused to Consider the 
Merits Because the Certiorari Petition Filed There Was 
Not on “ Transcript Paper.”

Discussion of the procedural issues appropriately may 
begin with 28 U. S. C. §1257 which confers jurisdiction on 
this Court to review certain judgments of “ the highest 
court of a State in which a decision could be had.” One 
seeking review here must have utilized all available pro­
cedures for obtaining review of an inferior state court deci­
sion in the state’s highest court, whether it is available as 
of right6 or only in the discretion of the state courts.7 But 
when a litigant reaches a “ dead end” short of the state’s 
highest court (as here where there is no further review

5 The Cole ease has been cited with approval in Garner v. Loui­
siana, 368 U. S. 157, 164; Paterno v. Lyons, 334 U. S. 314, 320; 
and Thompson v. Louisville, 362 U. S. 199, 206.

6 Southern Electric Co. v. Stoddard, 269 U. S. 186.
7 American B. Express Co. v. Levee, 263 U. S. 19.



23

as of right and efforts to secure further discretionary 
review have failed), this Court may review the judgment 
of the inferior court since it is the highest one “ in which 
a decision could be had.” 8 These settled propositions 
clearly point to the Court of Appeals of Alabama as the 
highest court “ in which a decision could be had” in the 
circumstances of this case. Decisions by that court were 
reviewed here in Anderson v. A la ba m a 364 U. S. 877; 
Gober v. Birmingham, 373 IT. S. 374; and Shuttlesworth v. 
Birmingham, 373 U. S. 262.

The relevant Alabama law grants to the Court of Appeals 
of Alabama “ final appellate jurisdiction . . .  of all mis­
demeanors, including the violation of town and city ordi­
nances” (Title 13, Ala. Code §86). Petitioner could obtain 
review of that court’s decision only by seeking a writ of 
certiorari in the Supreme Court of Alabama, which is em­
powered to issue “ such other remedial and original writs 
as may be necessary to give it general superintendence and 
control of inferior jurisdictions” (Ala. Const, of 1901, §140), 
and which has provided for esercise of this power by con­
sidering applications for writs of certiorari “ for the pur­
pose of reviewing or revising any opinion or decision of 
the court of appeals” (Ala. Supreme Court Rule 39, Appx. 
to Tit. 7, Ala. Code 1958, pp. 1178-1179).9

8 American B. Express Co. v. Levee, supra.
9 Rule 39 provides:

CERTIORARI TO COURT OF APPEALS.
This court will not in term time, nor will the justices thereof 

in vacation, receive or consider an application for the writ of 
certiorari, or other remedial writ, or process, for the purpose of 
reviewing or revising any opinion or decision of the court of 
appeals, nor entertain, consider, or issue a writ of error, as au­
thorized by section 98 of Title 13 of the Code, unless it appears 
upon the face of the application therefor that application has 
been made to said court of appeals for a rehearing of the point 
or decision complained of, and that said application had been



24

When petitioner’s conviction was affirmed by the Court 
of Appeals, and it denied rehearing, he sought certiorari 
(clearly the proper remedy) in the Supreme Court by 
filing a timely petition and an appropriate supporting 
brief. This attempt to invoke the discretionary certiorari 
jurisdiction of the Supreme Court was conformable to the 
established rules and practice except in one respect, i.e., 
petitioner did not comply with Alabama Supreme Court 
Rule 32 governing the type of paper to be used for such 
petitions. Rule 32 stipulates inter alia that applications for 
“ . . . the writ of habeas corpus, mandamus, or other writ 
or process depending on motion of this court, . . . shall

decided adversely to the movant, and the application to this court 
must be filed with the clerk of this court within fifteen days after 
the action of said court of appeals upon the said application for 
rehearing. The application for any such writ must be accom­
panied by a brief pointing out and arguing the point or decision 
sought to be revised or corrected. If the court, upon preliminary 
consideration, concludes that there is a probability of merit in 
the petition and that the writ should issue, it shall be so ordered, 
of which due notice shall be given by the clerk to the parties 
or their counsel, and the case shall stand for submission, as herein 
provided, on briefs and likewise oral argument if so desired. If 
oral argument is desired by petitioner, statement to that effect 
shall be filed with the clerk by petitioner within ten days after 
service on petitioner of the notice of issuance of the writ. If oral 
argument is desired by respondent, then he or his counsel shall, 
by endorsement on the last page of his brief, so state his desire. 
If neither party shall thus indicate a desire for oral argument, 
the clerk of this court shall, when briefs from all parties have 
been filed with him as herein provided, immediately submit the 
case in term time upon the transcript and such briefs. If either 
party shall have made known a desire for oral argument, the 
clerk of this court shall endorse that fact on the proper docket 
and set the case down for oral hearing not less than ten days 
after notifying the parties, or their attorneys of record, in writing 
of such setting. Cases so set for oral argument shall be heard on 
the day set unless continued by the court for good cause shown.

Respondent’s brief shall be filed with the clerk of this court 
within fifteen days after service on respondent of the notice of 
the issuance of the writ, and if not filed within that time, or 
within any extended time, the cause shall stand ready for sub­
mission.



25

be presented on folio paper, of the pattern now required 
by the rule for ordinary transcripts, so that the same may 
be suitable for binding; and no application shall be heard 
that is not so presented.” The paper mentioned is about 
10% x 16 inches in size.10 Petitioner ran afoul of this rule 
when his attorneys filed the petition for certiorari on ordi­
nary legal cap paper (8% x 14 inches) and the court below 
entered an order striking the petition for certiorari.11

It is submitted that this procedural lapse cannot deprive 
this Court of jurisdiction for several reasons, stated here 
summarily, and elaborated below. First, the Alabama Su­
preme Court could have exercised its discretionary juris­
diction and considered the merits of the petition notwith­
standing the procedural flaw. Such a discretionary refusal 
to consider a federal claim cannot prevent this Court from 
exercising jurisdiction. Williams v. Georgia, 349 U. S. 375.

Second, assuming, arguendo, that the Alabama Supreme 
Court was without discretion to review the petition not 
on transcript paper, the rule so harshly works a forfeiture 
by exalting form and ritual that it cannot, in view of the 
opposing interests at stake, be regarded as a state ground 
for decision adequate and substantial enough as to prevent 
review here. Staub v. Baxley, 355 U. S. 313; Rogers v. 
Alabama, 192 U. S. 226.

10 “Eule 21. Paper of Transcripts
“All transcripts of records must be on paper of uniform 

size, according to the same furnished by the clerk of the 
supreme court, with a blank margin, at the top, bottom, and 
sides of each page, of an inch and a half, exactly conforming 
to those marked on the sample.”

11 The record does not reveal the reason why paper other than 
transcript paper was used. But it is relevant to consider the 
extremely heavy volume of civil rights litigation handled by only 
a very few lawyers in some states in understanding how this 
could have occurred. See 1963 Report of the United States Com­
mission on Civil Rights, 117-119.



26

Finally, even where a state Supreme Court’s refusal to 
grant a discretionary review is based on an adequate state 
ground, the federal questions necessarily decided by the 
intermediate appellate court are properly reviewable in this 
Court. Cf. Hammer stein v. Superior Court, 341 U. S. 491.

To consider the above points in detail, it is first sub­
mitted that the Alabama Supreme Court did have dis­
cretion to consider the merits of Shuttlesworth’s petition 
despite the fact that it was not on transcript paper. As will 
be demonstrated, the Alabama courts have considered the 
merits of cases despite noncompliance with the transcript 
paper rule (Rule 32) as well as other Supreme Court rules. 
Rule 32 was adopted by the Court in 186612 and was first 
applied to strike a certiorari petition in 1946.13 Earlier the 
rule had been applied to mandamus petitions14 and since 
1946 it has been applied on a number of occasions.15 But 
in cases involving both mandamus and certiorari petitions

12 The rule appears at 38 Ala. 12 (January term 1866), and in 
subsequent Codes and Supreme Court reports without amendment 
except for its number.

13Peterson v. State, 248 Ala. 179, 27 So. 2d 30 (1946).
14 Aust v. Sumter Farm & Stock Co., 209 Ala. 669, 96 So. 2d 872 

(1923) (mandamus denied because not on transcript paper). The 
Aust case is the first such use of the rule. Earlier the court had 
indicated that it would tolerate some “ informality” in requests 
for mandamus, though it was not clear in what respect the requests 
for mandamus did not conform to this rule. See Ex Parte Tower 
Manufacturing Co., 103 Ala. 415, 15 So. 836 (1893), and Brady 
v. Brady, 144 Ala. 414, 39 So. 237 (1905), both of which are 
discussed in Ex Parte Jackson, 212 Ala. 496, 103 So. 558 (1925).

15 The Court has on occasion said such things as “ the require­
ment of Supreme Court Rule 32 is mandatory” (Accardo v. State, 
268 Ala. 293, 105 So. 2d 865 (1958)) and “we have no alternative 
but to strike” the petition (Metropolitan Life Ins. Co. v. Korneghy, 
260 Ala. 521, 71 So. 2d 301 (1954)). But in the many decisions 
under the rule the Alabama courts have never expressly stated 
that noncompliance deprived the court of jurisdiction, and the 
force of the above quoted statements is weakened by the courts’ 
actual actions in the cases discussed in the text infra.



27

not tendered on transcript paper the Alabama courts have 
demonstrated their power to consider the merits. The first 
such case was Ex Parte Wood, 215 Ala. 280, 110 So. 409 
(1926), involving a petition for mandamus to review a de­
cree fixing alimony pendente lite. The petition was not filed 
on transcript paper, but the court nevertheless delivered a 
lengthy holding that petitioner had not sustained his burden 
of proof, before adding that “ another reason” for denying 
the petition was the transcript paper rule. Then in Houston 
v. State, 265 Ala. 588, 93 So. 2d 439 (1957), the court 
“ struck” 16 a nonconforming certiorari petition but only 
after having acceded to a request to consider the merits. 
The Court said:

Subsequent to submission, appellant became aware 
that the petition was not on transcript paper and re­
quested leave to remedy this defect. In view of this 
request, we have considered the petition on its merits 
and find no reason to reverse the judgment of the Court 
of Appeals. The writ would have been denied had the 
application not been stricken. (Emphasis supplied.)

While the action of the Court in Houston was not unam­
biguous, and the court has rejected a subsequent attempt to 
induce it to consider the merits of such cases,17 the one

16 And it will be noted that in the opinion below in this case, 
and in many others, the Alabama Courts have said that such 
petitions were “stricken.” But the significance of this terminology 
is not apparent because the court has seemingly used the terms 
“ denied” and “ dismissed” interchangeably with “stricken” in 
transcript paper cases. See Ex Parte Wood, supra;  Aust v. Sumter 
Farm & Stock Co., supra (“ denied” ) ; Elks Lodge v. State, 264 
Ala. 223, 86 So. 2d 396 (1956) ( “denied” ) ; Bates v. General Steel 
Tank Co., 256 Ala. 466, 55 So. 2d 218 (1951) ( “dismissed” ) ;  
Maddox v. City of Birmingham, 255 Ala. 440, 52 So. 2d 166
(1951) (same) ; Stovall v. State, 257 Ala. 116, 57 So. 2d 642
(1952) (same) ; Morgan Plan Co. v. Beverly, 255 Ala. 235, 51 
So. 2d 179 (1951) (dismissed; denied).

17 See, e.g., Jemison v. State, 270 Ala. 589, 120 So. 2d 751 (1960).



28

clear thing about Houston is the court’s plain statement 
that it did consider the merits of the petition. Even more 
striking is the action of the Alabama Court of Appeals 
(which is bound by the same Rule 32) in Ex Parte Nations, 
154 So. 2d 762 (1963). Nations, a prisoner appearing pro se, 
sought certiorari to review an unfavorable trial court rul­
ing on his habeas corpus petition, and the Attorney General 
moved to dismiss on several grounds including failure to 
use transcript paper. However, the Court said that it was 
“ not disposed to cut off a prisoner’s post-conviction reme­
dies merely on the bald reference to the Rule” and went on 
to “ dismiss” the petition and “ deny” the writ on the ground 
that it sought to “ rehash” claims made in earlier habeas 
corpus proceedings. The Court stated the purpose of Rule 
32 was “ to leave well bound records” and added:

. . . The size of the paper has prescribed the size of 
the record racks and the use of much space in the 
Judicial Building. To change the system of record 
keeping would entail a considerable expense. More­
over, the use of noncomplying paper (unless promptly 
filmed) gives no assurance against fading and rot.

While the Nations opinion made reference to the prob­
lem of whether litigants have the means to secure tran­
script paper, there was no statement that such paper was 
not available to Nations or that he had even so contended. 
It can only be inferred that the Court found it sufficient 
that the state made no showing that the paper was avail­
able to this particular prisoner.

In addition to these cases where the court has considered 
the substance of a case before it notwithstanding that it 
was not on transcript paper, it is worthwhile to consider 
cases where the court has condoned infringement of its 
other rules. In Mitchell v. Helms, 270 Ala. 8, 115 So. 2d 
664 (1959), a litigant who wrote his assignments of error



29

on transcript paper but did not have them bound into the 
record was subsequently allowed to “write the assignments 
on the transcript” before submission of the case.18 The 
Court has also been liberal in excusing non-compliance with 
its rules prescribing the contents of briefs, thus further 
demonstrating its discretionary power to excuse violations 
of its own rules.19

This, then, is a case where the Court had power to con­
sider the merits but declined to do so, and Williams v. 
v. Georgia, 349 U. S. 375, should apply. In Williams, the 
state courts had power to consider and grant an extraor­
dinary motion for new trial but refused. This Court con­
cluded that “ the discretionary decision to deny the motion 
does not deprive this Court of jurisdiction to find that the 
substantive issue is properly before us” (349 U. S. at 389).

Second, even if it be assumed, contrary to the demonstra­
tion above, that the Alabama Supreme Court was without 
discretion to review the petition, this harsh and ritualistic 
rule cannot be regarded as such an adequate and substan­
tial state ground for decision as to prevent review here.

Under Alabama practice the certiorari petition itself is 
a relatively brief document setting out the claims and

18 Cf. Hunter v. L. & N. B.B. Co., 150 Ala. 594, 43 So. 802 
(1907), permitting a litigant, on rehearing, to correct an error 
in filing his assignments of error on separate sheets of paper. But 
see contra: Pugh v. Hardyman, 151 Ala. 248, 44 So. 389 (1907); 
Cates Lumber Co. v. Givens, 181 Ala. 670, 61 So. 30 (1913) ; 
Patton v. Colbert County, 265 Ala. 682, 92 So. 2d 691 (1957). 
See also, Wilson v. Howard, 266 Ala. 636, 98 So. 2d 425 (1957).

19 Wood v. Wood, 263 Ala. 384, 82 So. 2d 556 (1955); City of 
Montgomery v. Mott, 266 Ala. 422, 96 So. 2d 766 (1957); Quinn 
v. Hannon, 262 Ala. 630, 80 So. 2d 239 (1955) ; Schmale v. Bolte, 
255 Ala. 115, 50 So. 2d 262 (1951) ; Simmons v. Cochran, 252 
Ala. 461, 41 So. 2d 579 (1949) ; Edge v. Bice, 263 Ala. 273, 82 
So. 2d 252 (1955).



30

points made and requesting relief;20 the brief which must 
accompany the opinion elaborates the arguments.21 But 
the brief itself need not be filed on transcript paper.22 
Ordinary legal cap paper also will suffice for petitions for 
rehearing, Redwine v. State, 36 Ala. App. 560, 61 So. 2d 
715 (1952). The requirement as to the size of the paper 
to be used in certiorari petitions is not relevant to the ulti­
mate just adjudication of claims, as are numerous proce­
dural requirements. It is unlike time limits which help 
establish finality of decisions. It does not regulate the flow 
of business in the courts, thereby affecting the just and 
prompt disposition of other litigation. It does not serve 
any interests of the opposing party. It is not like rules 
which aid the court in properly understanding and dispos­
ing of the merits of a case, as might be true with rules 
governing the contents of briefs or assignments of errors 
or even rules regulating the size of type or printing or 
to insure legibility.23 While it is a rule, and should be 
obeyed and not deliberately flaunted, it relates only to 
record keeping and filing problems—to binding the record 
and storing it in filing racks of a particular size. This is 
not a consideration to be ignored and Alabama might per­
haps treat it by means of cost type sanctions, or by re­
quiring resubmission of documents on proper size paper, 
or perhaps even by striking state law claims, but peti­
tioner submits Alabama cannot foreclose this Court from 
considering federal constitutional issues on the basis of

20 See, Jones, Alabama Practice and Forms, §§6392, 6393; Ala. 
Supreme Court Rule 39.

21 Ala. Supreme Court Rule 39.
22 Ala. Supreme Court Rule 8 provides only that briefs be typed 

or printed, clearly legible, and bear the name and address of 
counsel.

23 Cf. Rosenberg- & Weinstein, Elements of Civil Procedure, pp. 
2-3 (Foundation Press, 1962).



31

that determination. This Court may well determine that 
its interest in protecting the constitutional rights of those 
charged with crime and threatened with imprisonment 
through flagrant infringement of the constitution weighs 
more heavily than any obligation to defer to state proce­
dural peculiarities bearing no relation to the decision mak­
ing process. In Staub v. Baxley, 355 U. S. 313, the Court 
rejected an argument that failure to comply with a state 
requirement that a defensive pleading “ count off, one by 
one, the several sections of the ordinance” was an adequate 
state ground. The requirement was characterized as . “ an 
arid ritual of meaningless form.” Similarly in Rogers v. 
Alabama, 192 U. S. 226, this Court disregarded an asserted 
nonfederal ground based on the prolixity of a pleading. In 
Carter v. Texas, 177 U. S. 442, it refused to allow a defend­
ant’s federal claim to be evaded on the ground that his bill 
of exceptions did not list the witnesses he proposed to call 
and their intended testimony.

The nonfederal ground put forward in this case has 
even less substance than those in the Staub, Rogers, and 
Carter cases where the state grounds, though procedural, 
at least had a connection with the decision making process. 
The state ground put forward by Alabama here relates to 
a mechanical requirement totally unrelated to the rights of 
other litigants, or to the effective functioning of the court, 
or to the merits of the case, which no litigant would in­
tentionally disobey, and the breach of which might readily 
be cured if the state rule did not work a strict forfeiture.

Finally, in Hammerstein v. Superior Court, 341 U. S. 
491, this Court held that it need not consider the force of 
an expression by the California Supreme Court that its 
denial of hearing from the judgment of a lower court was 
based on an adequate state ground, where the federal 
ground had been decided by the inferior court. The Court



32

said: “ We do not consider the force of that statement since 
it is clear that the judgment properly before us is that 
of the District Court of Appeal, which did decide the federal 
question. . . .  We have jurisdiction over that judgment.” 
(341 U. S. at 492.) This was a holding that where an 
inferior court was the highest court in which a case might 
be heard as of right, and an attempt had been made to 
secure discretionary review in the state’s highest court, 
it did not matter that the latter court might have declined 
review because it conceived that an adequate state ground 
supported the judgment. Application of this principle 
would permit this Court to review the judgment of the 
Alabama Court of Appeals in the instant case. It should 
be noted that this result is not at all affected by the outcome 
of the Hammerstein case—the fact that this Court declined 
to exercise its discretionary jurisdiction. That result ob­
tained because of a circumstance not at all present here, 
e.g., Hammerstein’s failure in a parallel but separate pro­
ceeding to use the remedy which could have gained him a 
review of the same issues as of right. Indeed, there is a 
substantial qualitative difference between a procedural 
lapse which pertains only to form like petitioner’s, and the 
mistake made in cases where the wrong remedy was sought, 
as in one aspect of Hammerstein, supra (mistaken use of 
certiorari rather than appeal) and in McMaster v. Gould, 
276 U. S. 284 (attempted appeal without leave of court). 
Petitioner’s mistake did not work any impediment limiting 
the Alabama Supreme Court’s practical opportunity to ex­
ercise its discretionary jurisdiction, or deprive that Court 
of its jurisdiction. He should not be held to have inad­
vertently waived his right to review by this Court of the 
plain errors of constitutional dimension upon which his 
conviction and the Alabama Court of Appeals’ affirmance 
of it rest.



33

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the judgment below should be reversed.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Peter A. H all 
Orzell Billingsley, J r .

1630 Fourth Avenue, North 
Birmingham, Alabama

Attorneys for Petitioner

Of Counsel:
Michael Meltsner 
George B. Smith



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