Walker v. Georgia Supplemental Brief in Opposition to Petition for Writ of Certiorari

    IN THE

Supreme Court of the United States
October Term, 1964

NO. 1072

MARDON R. W ALKER,

Petitioner

T H E  ST A T E  OF GEORGIA,

Respondent

SUPPLEMENTAL BRIEF OF RESPONDENT IN 
OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

L ewis R. Sla to n ,
Solicitor General 
Atlanta Judicial Circuit

C arter  G oode,
Assistant Solicitor General 
Atlanta Judicial Circuit

Fulton County Courthouse 
Atlanta, Georgia 30303



IN THE

Supreme Court of the United States
October Term, 1964

NO. 1072

MARDON R. W ALKER,

v.
Petitioner

T H E  STA TE OF GEORGIA,

Respondent

SUPPLEMENTAL BRIEF OF RESPONDENT IN 
OPPOSITION TO PETITION FOR 

WRIT OF CERTIORARI

In our original brief we said:

“We are unable to reconcile the opinion below, 
as it relates to the question whether Krystal at 
70 Peachtree Street is a place of public accommo­
dation within the meaning of Title II of the Civil 
Rights Act of 1964, with Bolton v. State, 220 Ga. 
632, 140 S.E. 2d 866 on the same point. In Bolton, 
decided February 8, 1965, Hamm and Lupper, 
supra, are followed, in a factual situation which 
appears to us to be indistinguishable from that in

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this case. We are therefore in the position of the 
State of Arkansas in the Lupper case. (See 85 S. Ct. 
384, 1964, note 3, at page 388), and feel that a 
remand on the issue of coverage would not serve 
any useful purpose.

Before leaving this area, we can state that we 
would, if the question of abatement were still open, 
point out that Georgia has a savings law3 which 
expresses a state policy to save convictions, and as 
to abatement take generally the positions of the 
dissenting Justices in Hamm  and Lupper, supra.”

It has come to our attention that the twO! questions, 
whether Krystal is a place of public accommodation 
within the meaning of Title II of the Civil Rights Act 
of 1964, and whether the demonstrators were disorderly 
or the demonstration forcible, may not have been devel­
oped sufficiently on the trial.

We quote the Supreme Court of Georgia in the opin­
ion below (220 Ga. at p. 426) , referring to coverage by 
the Act:

“T o demonstrate the fallacy of the defendant’s 
argument that this court should grant the motion 
for new trial on account of the passage of the 
Civil Rights Act, whether this particular restaurant 
comes within the provisions of the Civil Rights 
Act depends upon whether it is a place of public 
accommodation within the meaning of the Act. The 
Act, section 201, provides that a restaurant is a

“3 Ga. Code Ann. Sec. 26-103: All crimes shall be prosecuted 
and punished under the laws in force at the time of the commis­
sion thereof, notwithstanding the repeal of such laws before such 
trial takes place, cf. Jackson v. State, 12 Ga. 1, 4; Crosby v. 
Courson, 181 Ga. 475, 182 S.E. 590.” .



place within the meaning of the Act ‘if its operations 
affect commerce, or if discrimination or segregation 
by it is supported by State action.’ It is readily 
apparent that the determination of that question 
is one of fact, which can only be made in the trial 
court.”

Obviously, a determination whether the occurrence 
was peaceful and non-forcible should also be made in 
the trial court.

We have never intended to imply that we consider 
the question of abatement foreclosed by Hamm, and 
Lupper, or Blow or McKinnie, in any case where the 
demonstrators were disorderly or the demonstration 
forcible. We feel that on the record now before the 
court, the applicant and her fellow demonstrators were 
engaged in a common enterprise in which each, as a 
matter of law, was criminally responsible for the acts of 
the others. In its present condition, the record shows 
that the conduct of the group of demonstrators in the 
demonstration in which applicant was a participant was 
disorderly, and the demonstration forcible and violent.

We share the misgivings of the Supreme Court of 
Georgia about Hamm and Lupper expressed in Bolton, 
(220 Ga. at p. 633) :

“In those two cases the majority held that the 
Civil Rights Act of 1964 forbids discrimination in 
specified places of public accommodation and removes 
peaceful attempts to be served on an equal basis 
from the category of punishable activities. While 
those majority holdings do not accord with our 
conception of the meaning and purpose of the pro­
visions of the Constitution of this State and the



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Constitution of the United States which prohibit the 
enactment of ex post facto or retroactive laws (Code 
sec. 1-128, 2-302), we are, under our oaths, never­
theless required to follow them and we will there­
fore do so in these cases; and being so required, 
we therefore hold that these pending convictions 
are abated by the 1964 Civil Rights Act and it is 
ordered that the sentences imposed on each of these 
defendants be vacated and that the charge against 
each defendant be dismissed.”

We cannot say too many times that no departure from 
the requirements that demonstrations be peaceful, or­
derly and nonviolent should be tolerated. Any other 
approach would be to legalize anarchy.

Headnote 5 of the opinion below (220 Ga. at page 
416) is as follows:

“This court has no original jurisdiction and is 
limited to the trial and correction of errors of law 
from the superior courts and other enumerated 
courts of this State. Code Ann., Section 2-3704. 
Thus the contention made in the general grounds 
of the motion for new trial that the enactment into 
law of the Civil Rights Act of 1964 by the Congress 
abates defendant’s conviction and prevents her pun­
ishment for violating the Georgia anti-trespass Act 
raises no question for consideration by this court, 
as this question was not raised or passed upon in 
the trial court.”

This ruling is in accord with the Constitution of the 
State of Georgia (Art. 6, Par. 4) whereby the jurisdic­
tion of the Supreme Court is limited to the correction 
of errors of law from the Superior Courts and the City



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Courts of Atlanta and Savannah and like Courts. The 
Supreme Court of Georgia has no original jurisdiction, 
has no jurisdiction to pass upon a question not deter­
mined in the Court below, and in Headnote 5 above, 
gave recognition to this constitutional inhibition.

It is the law of Georgia that in this case the question 
whether the case should abate on account of the passage 
of the Civil Rights Act must be first determined in the 
trial court. The question whether this case abates by 
the Civil Rights Act does not now exist in this case. 
The Supreme Court of Georgia was without jurisdiction 
to consider this question, did not consider it, but ex­
pressly ruled that it could not do so, and we respectfully 
submit the question cannot be considered by the 
Supreme Court of the United States at this stage of the 
case. The only way this question can get into the case 
is by defendant raising the question in the trial court; 
if the trial court holds the case is not abated by the 
passage of the Civil Rights Act, defendant may except 
in regular course.

It is elementary that only matters in issue can be 
adjudicated. One reason is that only thus do the parties 
have notice enabling them to present their evidence. 
The question whether this case should be abated under 
the Civil Rights Act of 1964 was not in issue before the 
trial court, thus was not within the jurisdiction of the 
Supreme Court of Georgia to determine, and is not now 
before the Supreme Court of the United States. T o  select 
portions of the evidence bearing on the effect of the 
Civil Rights Act and to adjudicate therefrom whether 
the case should thereby be abated, when this matter 
was not put in issue before the trial court so that the



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parties could knowingly present evidence thereon, would 
be to depart from the ordinary course of judicature.

Additionally, it should be remembered that defendant 
filed a second motion for rehearing in the Supreme Court 
of Georgia on March 1, 1965, presenting the Civil Rights 
Act and the case of Bolton versus State, 220 Ga. 632. 
The Supreme Court held on March 15, 1965, that it 
was without authority under the rules of the Court to 
permit the filing of this second motion for rehearing.

This prosecution should not abate.

Respectfully submitted.

L ewis R. S la to n , 
Solicitor General 
Atlanta Judicial Circuit

C arter  G oode,
Assistant Solicitor General 
Atlanta Judicial Circuit

Counsel for Respondent, 
State of Georgia

Fulton County Courthouse 
Atlanta, Georgia 30303



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CERTIFICATE OF SERVICE

GEORGIA, FU LTO N  CO UNTY

I, Carter Goode, of counsel for the State of Georgia, 
respondent in the foregoing case, certify that I have this 
day served copies of the foregoing Supplemental Brief 
of Respondent in Opposition to Petition for Writ of 
Certiorari upon Petitioner, by depositing in the United 
States Post Office in Atlanta, Georgia, two copies of same 
in an envelope addressed to Jack Greenberg, attorney, 
Suite 2030, 10 Columbus Circle, New York, New York, 
10019, and two copies of same in an envelope addressed 
to Donald L. Hollowell and Howard Moore, Jr., Attor­
neys, 859V2 Hunter Street, N. W., Atlanta, Georgia, 
30314, counsel of record for petitioner, with sufficient 
first class postage affixed thereto.

This May___ «i2. 4 ______, 1965.

s/ •C_, <3., *-» ̂ L . ^5"© ® c / C —

7 C arter  G oode

Assistant Solicitor General 
Atlanta Judicial Circuit