Houston v. Benttree, Ltd. Brief Opposition Petition for a Writ of Certiorari

    Is - THE

Ihtprem? (Enurt of tiiT WmXth States
October Term, 1961 

No..............

Nathaniel W eight, Chaeles L. Smabt, R asco W hite, 
James W . T homas, B enjamin Caetee, Judson F obd,

Petitioners,
—v.—

State of Geoegia,
Respondent.

REPLY TO BRIEF IN OPPOSITION TO PETITION 
FOR W RIT OF CERTIORARI

J ack Geeenbeeg 
Constance B akes Motley 
Leboy I). Clabk

10 Columbus Circle 
New York 19, New York

B. Clabence Mayfielh 
E. H. Gadsen

Attorneys for Petitioners



I n  the

#tt|ir£me Olourt 0! %  Ituteii States
October Term, 1961 

No..............

----------------------------------------------
Nathaniel W eight, Charles L. Smart, R asco W hite, 

J ames W. T homas, B enjamin Carter, J udson F ord,

Petitioners,

State of Georgia,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

PETITIONERS’ REPLY TO BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI

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

I.

Mode of Raising Constitutional Questions

Respondent argues that where a state court has declined 
to pass upon a constitutional question for alleged failure 
to raise the question properly this Court may pass upon 
it only where the state has applied the procedural rule in­
consistently. But this Court has in many instances found 
such refusal unreasonable for reasons other than incon­



2

sistent application. Terre Haute I. B. Co. v. Indiana, 194 
U. S. 579, 589; Union P. R. Co. v. Public Service Commis­
sion, 248 U. S. 67 and Staub v. Baxley, 355 U. 8. 313.

As in Staub, the mode of avoiding the constitutional 
question here presented also fails to meet a bare minimum 
of intrinsic fairness and reasonableness. This Court never 
has been precluded from examining the particular appli­
cation of a state procedural rule to assure that it is not 
in essence an evasion of the federal questions on frivolous 
grounds. Rogers v. Alabama, 192 U. S. 226, 230 and Van 
Dalia R. R. Co. v. Indiana, ex rel. South Bend, 207 U. S. 
359, 367.

Statement of the Facts

Despite State efforts to characterize the arrests as having 
nothing to do with the race of the petitioners, the fact 
remains that the arresting officer testified “ one reason [for 
the arrest] was because they were Negroes” (R. 53). More­
over, respondent also concedes squarely in its brief the 
very fact it claims was not made out by the record, that 
the race of petitioners was the material factor in the arrest:

The fact that these defendants were adult Negro men 
on a children’s playground in a white residential area 
and that cars were beginning to assemble all contrib­
uted to a fear that there would be a breach of the 
peace if the defendants' continued to use the play­
ground. (Brief in Opposition, p. 10.)

The fact that it is a crime in Georgia for Negroes to 
play on a white basketball court, although the statute gives 
no fair warning thereof, is what—in this context—renders 
the law vague. Petitioners were not warned in any manner 
of potential differential treatment solely because of race.



3

Respondent alleges another cause for the arrests: that 
petitioners violated the Recreational Department’s rules. 
This allegation distorts the record. The arresting officer 
did not “know the rules of the city’s recreational depart­
ment” (R. 52). He came to the basketball court solely be­
cause he was told by a “white lady” that some “ colored 
people were playing in the basketball court” (R. 52). He 
had no information at that point that any infraction of 
playground rules was occurring (R. 52) nor did he testify 
that he saw any such infraction upon arriving at the scene.

Respondent states that the testimony of the superin­
tendent of the recreational department shows that peti­
tioners were arrested because they were “ grown men” on a 
“ children’s playground” and were dressed in street clothes.1 
This witness’s testimony is to the contrary. He testified 
that under the rules of the Recreation Department the 
basketball courts could be used by adults (R. 56) (and, 
therefore, the petitioners were not on a playground exclu­
sively for children), and that it would not be improper to 
wear street clothes in unsupervised play (R. 56). He fur­
ther testified that although the school used the area during 
school days, the courts could be used by anyone if children 
were not actually there (R. 58). The arrests were made at 
2:00 in the afternoon when the children were not present 
but were in school (R. 53). Mr. Hager’s general comments 
that the Recreation Department might employ a non­
discrimination policy could not change the character of the 
arrests as attempts to enforce segregation because his office 
had intervened in no way (He learned of the arrests after 
they had been made [R. 54]), and the arresting officer was 
not aware of the Recreation Department’s rules (R. 52).

1 Respondent’s brief, p. 10, 2nd paragraph and see p. 13, 2nd 
paragraph.



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Even if the respondent had been able to establish that 
the one ground for the arrests was violation of playground 
rules, this could not sustain the judgment below in the face 
of clear rulings by this Court for one basis of the convic­
tion was race. And as stated in Williams v. North Carolina, 
317 U. S. 287, 292, “ [I ] f  one of the grounds for conviction 
is invalid under the Federal Constitution, the conviction 
would not be sustained.”

CONCLUSION

W herefore, for  the foregoing reasons, it is respectfully 
submitted that the petition for writ of certiorari should 
be granted.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

Attorneys for Petitioners