Lupper v. Arkansas Petition for Rehearing

    IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1964

No. 5

F rank James L  upper, et al. ______________ _____Petitioner

v .

State of A rkansas_______ L________________Respondent

ON W RIT OF CERTIORARI TO THE SUPREME 
COURT OF THE STATE OF ARKANSAS

PETITION FOR REHEARING

B ruce B ennett 
Attorney General 

Jack L. L essenberry 
Chief Assistant Attorney General 
State of Arkansas 

Counsel for Respondent 
Justice Building 
Little Rock, Arkansas

PARAGON PRINTING C O ., L ITTLE  ROCK



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1964

No. 5

F rank James L uper, et al. ___________________Petitioner

v.

State of A rkansas__ Respondent

ON W RIT OF CERTIOR ARI TO THE SUPREME 
COURT OF THE STATE OF ARKANSAS

PETITION FOR REHEARING

The respondent, by its counsel, respectfully requests 
that a rehearing be granted in this cause. In the alterna­
tive, respondent urges that the convictions of petitioners 
be remanded to either the state court or the federal district 
court for hearing and determination of crucial facts which 
are pertinent to the application of Title II of the Civil 
Rights Act of 1964. In any event, respondent asks that 
the opinion of the court be clarified to afford respondent 
and other jurisdictions adequate guides to properly 
implement the decision rendered.

The following topics are offered by respondent in 
support of its prayers for relief.



2

i

Abatement of State Prosecutions

The conclusion of the majority of the Court was in 
essence that the Civil Rights Act of 1964 abates the prose­
cutions and convictions of participants of “ sit in”  dem­
onstrations which had not been finally adjueicated.

It is not necessary to dwell on this point for its weak­
ness has been adequately and convincingly voiced by the 
dissenting opinions. It should suffice to state that the 
holding of the majority was a violent departure from 
settled authority.

One matter does deserve special comment. The ma­
jority speaks of the Civil Rights Act as creating a right 
or substituting a right for a crime. The Act itself con­
tains no such allusions. It merely prohibits punishment 
of a person who seeks to secure goods and services. See 
Title II, Sec 201 (a) and Sec. 203. On the other hand, 
the Arkansas Statute, Act 14, does not make a request for 
service a crime, but only condemns the refusal of a per­
son to leave the premises upon the order of the manager 
of the store. Hence, there can he no conflict between 
the two enactments.

The majority’s construction of the Civil Rights Act 
condoning demonstration by sitting, lying or otherwise, 
effectively destroys the prime objective and the high 
motives of the Act. The opinion constitutes an invita­
tion to violence without punishment, or lawlessness with 
law.

What is truly ironical, is that a plain reading of the 
Act would offer a ready defense to persons now genuinely 
seeking service who is made the victim of ambitious prose­
cution and also furnishes a judicial means to vindicate 
the wrong.



3

Finally, there is a legitimate public interest in any 
unlawful conduct, past or future. Lawlessness can not 
be so lightly entertained in any sphere. The judicary 
should not indulge in the wisdom or expediency of legis­
lation. Abandonment of such fundamental principles 
is not dictated by the circumstances present in this liti­
gation.

n

Application of the Civil Rights Act

Aside from entanglements of interpretation of the 
law, this case presents pecular factual problems. The 
description of the incident arising in Arkansas set out in 
the opinion of the Court was eminently fair.

Conceding arguendo that the Civil Rights Act will 
abate some prosecutions, two important questions still re­
main to be answered. First: Is the tearoom located in 
Blass an establishment covered by Title II? Second: If 
so, were petitioners requested to leave on account “ of race, 
color, religion or national origin?”

As to the former, there is probably no genuine con­
troversy. During oral argument this was the honest 
appraisal of counsel for respondent based upon casual 
knowledge of the activities of a large department store. 
Purely speaking, it seems unreasonable to adversely ad­
judicate such a significant legal proposition in what 
cannot be fashioned even as an ex parte conclusion. All 
too suddenly it would appear that Blass had involuntarily 
and unknowingly become a real party in interest.

It should be interjected at this juncture that while 
it is true respondent resisted an order of remand in its 
brief and during oral argument, it was because respondent



4

believed the Arkansas law on abatement was clear 
(Respondent’s Brief, p.13) and that while the department 
store might be covered, no concession was intended to 
include refusal of service on the basis of petitioners’ race.

Notwithstanding these several considerations, the 
aspect of coverage alone may not justify a remand for 
hearing.

The second question presents a more serious and 
difficult venture. There is not merely a void of evidence 
of refusal of service because of race. The evidence will 
only sustain a conclusion contrary to that reached by the 
Court.

Coupling both questions, each gains stature and prom­
inence. A  remand for hearing can result in no harm. 
The conclusion may very well be the same, but it will be 
founded upon evidence. If a different result is justified, 
none but the unfaithfull will disparage it.

in

Implementation of the Decision as to 
Existing and Future Cases

At the commencement of the consolidated oral argu­
ment, a comment was made that approximately 3,000 
prosecutions involving demonstrators were at some stage 
of litigation in the several states. The only case then 
heard by the Arkansas Supreme Court was the case at 
bar and none were pending. Since this opinion was an­
nounced, attention has been brought to several prosecu­
tions in both the municipal and circuit courts which have 
been suspended awaiting disposition of this cause by this 
Court.



3

Should respondent’s separate prayers for reconsid­
eration or remand be denied, there still exists a grave 
question as to the proper disposition of the sit in cases in 
Arkansas and the several other states. Moreover, since 
the Court deferred ruling on the validity of trespass 
statutes per se, undoubtedly future controversy will arise. 
In either instance, the inferior State and Federal courts 
do not have the benefit of any guides.

Not only judges but other officers of the judiciary, 
as well as responsible State officials have the obligation 
of advising legislative bodies, business men and law en­
forcement agencies.

Thus, much amplification is needed to afford timely 
resolution of pending cases but also to assure correct 
future judicial involvement.

Respondent would urge that this Court state, that in 
the event the Civil Rights Act of 1964 is invoked as a 
defense to a state prosecution, if the accused would have 
the burden of proving by a preponderance of the evidence 
the coverage of the establishment by the Act and refusal 
of service on the ground of race, color, or national origin.

Further, this Court should determine if the questions 
of coverage and the refusal of service should be a matter 
of law or fact.

Undoubtedly, other issues will arise. All cannot be 
anticipated. These basic matters have already been 
brought sharply to focus and are of such consequence to 
be deemed absolutely essential.



6

CONCLUSION

Much consideration has been given the decision of 
the Court entered in this cause and the prayers set forth 
in this petition.

Pursuant to the Rule 58 of the Court, respondent has 
endeavored to briefly and distinctly state support for its 
contentions.

It is respondent’s sincere belief that the majority of 
the Court has grievously erred.

Much benefit would be gained by permitting this 
cause to be remanded to an appropriate hearing and fact 
finding tribunal. All interested parties could then be 
adequately heard and proper proof submitted on areas 
not anticipated or known at the time of petitioners’ orig­
inal trial. Although piecemeal trials should not be en­
couraged, justice should be served as expeditiously as pos­
sible. e.g. Jackson v. Denno, 378 U.S. 368.

It is recognized that decisions of courts do not and 
should not attempt to anticipate or speculate on special 
problems which may be created. But there are practical 
problems of mechanics of implementation. If the cir­
cumstances of this case are “  . . .  a possibly unique phe­
nomenon . . . ”  Bell v. Maryland, 378 IT.8. at p. 235, then



7

the import of this decision and its far reaching effect per­
haps likewise requires special instructions. cf. Sain v. 
Toivnsend, 372 U.S. 293, Fay v. Noia, 372 TT.S. 391.

Respectfully submitted,

B rtjce Bennett 
Attorney General 

Jack L. L essenberry
Chief Assistant Attorney General 
State of Arkansas

Counsel for Respondent 
Justice Building 
Little Rock, Arkansas

January 5, 1965

CERTIFICATE

I, Jack L. Lessenberry, certify that the foregoing 
Petition for Rehearing is presented in good faith and not 
for delay.

Jack L. Lessenberry