Gober v. City of Birmingham Reply to Brief in Opposition to Certiorari

    1 st t h e

^nprrnt ©curt ni lit? United
October T erm, 1961 

No. 694

J ames Gober, J ames Albert Davis, R oy H utchinson, 
R obert J . K ing, R obert P arker, W illiam W est, R obert 
D. Sanders, R oosevelt W estmoreland, J essie W alker, 
W illie J . W illis,

Petitioners,
—v..

City of B irmingham,
Respondent.

on petition for writ of certiorari to the
ALABAMA COURT OF APPEALS

REPLY TO BRIEF IN OPPOSITION 
TO CERTIORARI

L eroy D. Clark 
Michael Meltsner 
J ames M. Nabrit, III 
Louis H. P ollak

of Counsel

J ack Greenberg 
Constance Baker Motley 

10 Columbus Circle 
New York 19, N. Y.

A rthur D. Shores
1527 Fifth Avenue, North 
Birmingham, Alabama

P eter A. H all 
Orzell B illingsley, J r.
Oscar W. Adams, J r .
J . R ichmond P earson

Attorneys for Petitioners



I n  the

j ^ u p r p m p  O X m trt o f  tly ?  H t t i te i*  Butts
October T erm, 1961 

No. 694

J ames Gober, J ames Albert Davis, R oy H utchinson, 
R obert J . K ing, Robert P arker, W illiam W est, Robert 
D. Sanders, R oosevelt W estmoreland, J essie Walker, 
W illie J . W illis,

Petitioners,
■—v.-

City of B irmingham,
Respondent.

on petition for writ of certiorari to the

ALABAMA COURT OF APPEALS

PETITIONERS’ REPLY TO BRIEF IN OPPOSITION 
TO CERTIORARI

Petitioners have received respondent’s Brief in Opposi­
tion to the Petition for Certiorari filed in this case and 
hereby reply pursuant to Rule 24(4) of the Rules of this 
Court.

I.
A dequacy o f service.

Respondent claims (Br. of Respondent, 3, 9, 10) that 
this Court lacks jurisdiction to entertain the Petition be­
cause the Petition and Notice of Piling* of the Petition were 
served upon MacDonald Gallion, Attorney General of the



2

State of Alabama, and James M. Breckenridge, rather than 
Watts E. Davis and William L. Walker. Messrs. Walker 
and Davis are Assistant City Attorneys of Birmingham; 
Mr. Breckenridge, upon whom service was made, is their 
superior, the City Attorney, as is evidenced by copy of 
the letter accompanying Respondent’s Brief in Opposition, 
reproduced, infra, p. la. Petitioners submit, therefore, 
that this objection is without merit, see infra, p. la.

II.

Mode of raising constitutional questions.

Respondent implies that petitioners did not properly 
raise constitutional objections in the courts below and 
that petitioners’ constitutional objections were not passed 
upon by the Alabama Courts.

Specifically, respondent argues that Birmingham’s segre­
gation in eating facilities ordinance was not pleaded in 
the trial court and does not appear in the records and that, 
therefore, this Court should not consider it now. The 
theory of judicial notice is, however, that regarding 
propositions involved in the pleadings, or relevant thereto, 
proof by evidence may be dispensed with. 9 Wigmore, 
§2565, p. 531. As it is beyond question that the Courts of 
Alabama are required to judicially note ordinances of the 
City of Birmington, see Br. of Petitioners, 7, n. 4,1 the 
only possible objection which can be made is that the

1 Title 7, Code of Alabama, 1940, Section 429(1) (Approved 
June 18, 1943) states:

“ J u d ic ia l  N o tic e  op t h e  O r d in a n c e s  o p  Ce r t a in  C it ie s .— All 
courts in or of the State of Alabama shall take judicial notice 
of all the ordinances, laws and bylaws of cities of the State of 
Alabama which may now or hereafter have a population of 
200,000 or more people according to the last or any succeeding 
federal census.”



3

ordinance is not relevant to questions raised by the plead­
ings. Petitioners, however, clearly raised the contention 
that they were arrested, prosecuted and convicted because 
of state enforcement of segregation (e.g. Gober, 5-7, 9-11). 
Moreover, these contentions were rejected by the Alabama 
Courts (e.g. Gober, 8, 9, 11, 62, 63, 64). Finally, petitioners 
attempted to interrogate concerning the ordinance (Br. 
of Petitioners, 6, 7; Gober, 22-24; Davis, 23-25), but the 
evidence was excluded (Gober, 24; Davis, 25).

Respondent argues that no Motion to Exclude the Evi­
dence is shown by the record in the case of Roosevelt West­
moreland. It is true that no Motion to Exclude is in the 
record of the Westmoreland Case, but it is clear from 
the Westmoreland record that such a motion was made 
and denied by the trial court. The judgment entry in 
Westmoreland states that (Westmoreland, 5):

“ . . . and the defendant files motion to exclude the 
evidence, and said motion being considered by the 
Court, it is ordered and adjudged by the Court that 
said motion be and the same is hereby overruled, to 
which action of the Court in overruling said motion, 
the defendant hereby duly and legally excepts.”

Moreover, the Motion for New Trial in the Westmoreland 
Case alleges that the Court refused to grant the Motion to 
Exclude (Westmoreland, 8) and the Assignments of Error, 
Assignment 3 alleges error in refusing to grant the Motion 
to Exclude (Westmoreland, 32). Finally, the trial court 
ruled that, by stipulation, the motions in all the cases 
would be identical (Hutchinson, 33).

Respondent argues that the Motions to Exclude the Evi­
dence did not contain a prayer for relief. This objection 
has no merit. The purpose of these motions is clear on their



4

face, and the Alabama Courts raised no question as to their 
form.

Respondent argues that the Motions to Strike and the 
demurrers did not specifically raise the question of the 
need for some identification of authority to ask Peti­
tioners to leave the luncheon areas. This issue was, how­
ever, raised properly in the Motions to Exclude and the 
Motions for New Trial (e.g., Gober, 5-7) and was decided 
adversely to petitioners, on the merits, by the Alabama 
Courts (e.g., Gober, 8, 62, 63).

It is clear from the face of the records of these cases 
that petitioners raised constitutional questions at every 
opportunity in both the trial and appellate courts and 
that these questions were considered by the Alabama Courts 
and rejected on their merits. The Alabama Court of Ap­
peals stated:

Counsel has argued among other matters, various 
phases of constitutional law, particularly as affected 
by the Fourteenth Amendment of the Federal Constitu­
tion, such as freedom of speech, in regard to which 
counsel state: “What has become known as a ‘sit-in’ 
is a different, but well understood symbol, meaningful 
method of communication.” Counsel has also referred 
to cases pertaining to restrictive covenants. We con­
sider such principles entirely inapplicable to the pres­
ent case. (Emphasis added.) (Br. of Petitioners, 8a.)



5

T he im portance o f  the issue: reasons why these cases 
should  be heard here prior to d isposition  o f  other sit-in  
litigation .

Counting the ten convictions embraced by the instant 
certiorari petition, there are now pending before this Court, 
eleven separate certiorari petitions and jurisdictional state­
ments dealing with state court criminal convictions growing 
out of the “sit-in” movement.2

It seems almost beyond dispute that each of these con­
victions poses constitutional issues of major dimension.
Cf. Garner v. Louisiana, 7 L. ed. 2d 207. And their humble 
facts only serve to highlight the importance of the issues 
posed. Cf. Yick Wo v. Hopkins, 118 U. S. 356; Thompson 
v. Louisville, 362 U. S. 199.

But this concentration of cases poses a real problem of 
judicial administration. These multiple convictions merit 
careful review in the light of relevant constitutional prinei-

2 Brews v. State  (Jurisdictional Statement filed 29 U. S. L. Week 
3286, T3o7~SlhrT960 term ; renumbered No. 71, 1961 te rm ); WiU—JVVcs 
liams v. North Carolina (Petition for Cert, filed 29 U. S. L. Week 
33l9, No. OlbyiOOTTTefm; renumbered No. 82, 1961 te rm ); A v e n t . 
v. North Carolina (petition for eert. filed 29 U. S. L. Week 1)336^
No. 943, 195IFEerm; renumbered No. 85, 1961 te rm ); Fox v. North » 
Carolina (petition for cert, filed Id. No. 944, 1960 term ; renum­
bered No. 86, 1961 term ). Randolph v. Commonwealth of Virginia,.. \
(petition for cert, filed 30 U) S.:tTW BBk^0l3?(T^o7^8jTir6rferm) ;

Commonwealth of Virginia  (petition for cert, filed 30 
tJ. S7LTWreel~31‘28^7^Tr^?6)‘W9fiTTerm) ; Lombard v. Louisiana^-~^'V<~>)  
(petition for cert, filed 30 U. S. L. Week 3234, N(57ir387^^81~tSnH(r;

, Gober. v. City of Birmingham (petition for cert, filed 30 U. S. L.
Week 3250,'""No. 694, 1961 term) ; Thompson v. Commonwealth of _____ 

c y Virginia* (petition for cert, filed 30 l5. S. TrWTEElr'3234yN67~B55,
1961 term) ; P eterson v. City of Greenville (petition for cert, filed A 
30 U. S. L. Week 3274, No. "7HTT9FrWerm). Cf. also S huttles- 
worth and Billups v. City of Birmingham  (petition for cert, filed 
3TTTJTS. L.'WeeF32'58, N o77?irT 99rtt!rm ).x

III.



6

pies. And yet it may be, in view of this Court’s manifold 
responsibilities in so many realms of public adjudication, 
that detailed sifting of the scores of somewhat varying 
factual situations underlying these eleven pending ap­
plications for review cannot be forthcoming immediately. 
Institutional limitations counsel recognition that this Court 
may feel compelled to select for initial adjudication from 
among the pending eleven applications the one or more 
whose facts may best illuminate constitutional judgments 
of widespread application and implication. Just as “wise 
adjudication has its own time for ripeness”, Maryland v. 
Baltimore Radio Store, Inc., 338 U. S. 912, 918, so too it 
may flower best when rooted deep in rich factual soil.

Viewed in this light, the instant petition for certiorari 
presents cases which seem peculiarly apt prototypes of 
the entire corpus of “sit-in” litigation. Another case which 
presents issues in almost the same way as the instant one, 
and to which much of what is said here applies, is Peterson 
v. City of Greenville, No. 750, October Term, 1961. In the 
cases represented by this certiorari petition, (1) there was 
a municipal ordinance requiring restaurant segregation; 
(2) at least one of the proprietors demonstrably shaped his 
business practices to conform to the segregation ordinance 
(although inquiry into the general impact of the ordinance 
was foreclosed by judicial rulings below); (3) in each case 
the proprietor welcomed Negro patronage in the part of 
his establishment not covered by the ordinance; (4) in none 
of the cases was a defendant ordered from the store by 
the proprietor or his agent; (5) in none of the cases were 
the police summoned by the proprietor or his agent; and 
(6) in each of the cases the defendant was arrested for 
and convicted of trespass notwithstanding the non-asser­
tion by the proprietor of whatever theoretical claims he 
may have had to establish a policy of excluding Negroes 
(a) from his premises as a whole or (b) from his restaurant



7

facilities (assuming there had been no segregation ordi­
nance precluding any such discretionary business judgment 
on the proprietor’s part).

In short, the salient facts summarized above illustrate 
with compelling specificity many separately identifiable 
(albeit integrally connected) aspects of state action enforc­
ing racial segregation. Thus, the cases represented in this 
certiorari petition seem particularly apt vehicles for fur­
ther judicial exploration of the problems to which this 
Court first addressed itself in Garner v. Louisiana, supra.

CONCLUSION

W herefore, fo r the foregoing reasons, i t  is respectfully 
subm itted tha t the petition for w rit of certio rari should be 
granted.

Respectfully submitted,

J ack Greenberg
Constance Baker Motley 

10 Columbus Circle 
New York 19, N. Y.

Arthur D. Shores
1527 Fifth Avenue, North 
Birmingham, Alabama

P eter A. H all
O r z e l l  B i l l i n g s l e y , J r.
Oscar W. Adams, J r.
J. R ichmond P earson

Attorneys for Petitioners
Leroy D. Clark 
Michael Meltsner 
J ames M. Nabrit, III 
L ouis H. P ollak

of Counsel



8

(See opposite) ESP3



la

JOHN M. BRECKEN RID OE  
C ITY  A TTO R N EY

ASSISTANT C IT Y  A TTO R N EY S

E A R L  MCBEE 
WATTS E . DAVIS 
WM. A . THOMPSON 
JAM ES G .ADAMS, 
W M .C .W A LK E R  
THOMAS J .H A Y D E N

III

Mr. Ja c k  G reenberg  
10 Columbus C i r c le  
New York 19, New York

R e: James G ober, e t  a l
v s ,  CITY OP BIRMINGHAM

D ear Mr. G reen b e rg :

E n c lo sed  p le a s e  f in d  copy o f  B r ie f  f i l e d  on b e h a lf  
01 R esponden t to  P e t i t i o n  f o r  W rit o f  C e r t i o r a r i .

W atts E. D avis 
A s s i s ta n t  C ity  A tto rn e y

WED:ng
E n e l.
AIR MAIL



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