Record and brief — Shepherd Construction Co. v. Georgia

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ALEXANDER L. STEVAS.

IN THE

Supreme Court of the Unite

OCTOBER TERM, 1981

SHEPHERD CONSTRUCTION CO., INC.,

DAN P. SHEPHERD AND J. HAROLD SHEPHERD,

Appellants,

Ve

STATE OF GEORGIA,

Appellee.

ON APPEAL FROM THE

SUPREME COURT OF GEORGIA

JURISDICTIONAL STATEMENT

DAVID H. FLINT MARVIN ARRINGTON

WARREN O. WHEELER JOHN J.GOGER

Counsel of Record Arrington, Rubin, Winter

MARY JO WORKMAN Krischner & Goger, P.C.

Schreeder, Wheeler & Flint 1210 First National Bank Tower

1600 Candler Building Atlanta, Georgia 30383

Atlanta, Georgia 30043-7501 (404) 658-9977

(404) 681-3450 Counsel of Record for Appellant

Counsel for Appellant Shepherd Dan P. Shepherd

Construction Co., Inc. CHARLES H. HYATT

201 Trust Building

505 North McDonough Street

Decatur, Georgia 30030

(404) 378-3634

DAVID R. ROGERS

212 Trust Building

505 North McDonough Street

Decatur, Georgia 30030

(404) 377-0411

Counsel of Record for Appellant

J. Harold Shepherd

Atianta.GA + FRANKLINCOPYSERVICE + (404) 525-0406

QUESTIONS PRESENTED

1. Whether 1968 Ga. Laws 1249, 1308 (Ga. Code Ann. §26-

2308(a)) which provides a penal sanction for any person who

enters into a contract, combination or conspiracy in restraint of

free and open competiton in a transaction with the State of

Georgia is invalid under the Fourteenth Amendment to the

United States Constitution since the term “Conspiracy in

Restraint of Free and Open Competition” is not defined by the

statute, has no meaning at common law, is not defined by com-

mon understanding or practice and infringes upon speech which

is protected by the Constitution.

2. Whether the action of the trial court in ruling on motions

filed of record without hearing evidence or oral argument of

counsel denied the appellants due process of law under the

Fourteenth Amendment to the United States Constitution.

3. Whether the action of the State of Georgia in denying ap-

pellants’ requests for discovery asking for access to exculpatory

material and the action of the trial court in summarily denying

the appellants’ discovery motions without hearing or consider-

ing evidence is violative of due process under the Fourteenth

Amendment to the United States Constitution.

TABLE OF CONTENTS

Page

ot sy 5 + i

Se rere rrr Sr ror l

od be ae ee Ca iia espana aneeseeees l

CONSTITUTIONAL PROVISIONS AND STATUTES

Pn sks ekeecatebaheusbaeun des eekeeenonds as 2

STATEMENT OF THE CASE ..........cccccccccccces 3

SUBSTANTIALITY OF THE FEDERAL QUESTIONS. 7

A. The Issues In Th Case Present A “Final Judgment”

And Should Be Reviewed By This Court

SPE ccbadevegeeadsctscouebenceesteedes 7

B. 1968 Ga. Laws 1249, 1308

(Ga. Code Ann. §26-2308(a)) Is Unconstituionally

Vague Because The Term “Conspiracy In Restraint

Of Free And Open Competition” Is Not Defined

By The Statute, Has No Meaning At Common Law

And Is Not Defined By Common Understanding

SIND 64: 66045600606060000606seudbanecesees 12

C. Ga. Code Ann. §26-2308(a) Is Unconstitutionally

Overbroad Because It Inpermissibly Restricts

Protected Commercial Speech .................... 17

D. The Supreme Court Of Georgia Erred In Ruling

That The Appellants Waived Oral Argument

On Any Motions Filed Of Record And In Denying

Appellant’s Motion For Discovery ................ 20

I 6 otlu techs eecen en bebueeineenaeeeees 23

APPENDIX

TEXT OF OPINIONS BELOW

Opinion of Supreme Court of Georgia

SEY Ty OD vo vec Mal occccccoscccesces A1,A30

Orders of Supreme Court of Georgia denying

Reconsideration dated July 30, 1981 ............. Al0

Opinion of Supreme Court of Georgia

EE Uy OT bodies sckbaecscevessedéesinces Al2

Order of Supreme Court of Georgia denying

reconsideration dated July 23, 1981 .............. Al9

Order of Supreme Court of Georgia staying remittitur

SP ED Th SE 6 dé nn es un adaecdadccvccscs A20

Order, Superior Court of Fulton County, Georgia

dated February 3, 1981 at 8:50 am............... A2l

Order, Superior Court of Fulton County, Georgia

dated February 3, 1981, at 8:45 a.m. ............. A22

PD I PUNE oo ccccscccccecccsescececcceces A27

TABLE OF AUTHORITIES

Cases Page

Abney v. United States,

fb ee re 7

Appalachian Coals, Inc. v. United States,

te. else ekus bens eeanebeute 16

Bateman v. Arizona,

eo en abesdeb ween 10,11

Bigelow v. Virginia,

ES re en rr 18,19

Bradley v. Richmond School Board,

DN cd cennsncesubseheoeeeseawes 8

Brady v. Maryland,

eh ee eco aus vey weed 22,23

Bridges v. California,

a ed Ce eeeeee ee 20

Broadcasting Music, Inc. v. CBS, Inc.

Ns cde cu bahe ches se eesesneueeauas 16

California v. Stewart,

I SD ces cau saccetavecdesedesensces 12

iv

Central Greyhound Lines, Inc. v. Mealey,

BE Se ED cco dd scccd wines reseceseescsdones 2

Chapman v. California,

— 2 ee PPPPPTPTTITIT TTT eee 8

Cline v. Frink Dairy Co.,

EE ED cv ovccenweedsncdtacvesevenoess 13,14

Cohen v. Beneficial Industrial Loan Corp.,

f S| SP EPPrrrrererrrririrr eri r ee 7

Cohen v. California,

EE ns oh Ceeeie +0 ctbnrkeateserenenes 2

Connally v. General Construction Co.,

SF PEE Gs vc ct bdausecéuceecnstauSuuace 13,14

Cox Broadcasting Corp. v. Cohn,

ee ee SUED win ouvecueteeaccdnvesss 8,9,11,20,21

Craig v. Harney,

Eo ons oe os 45k 04ihetoeu wees es Cenue 20

Debs v. United States,

le EE os oc sec agaccedtseusdeneduts banaue 19

Dennis v. United States,

4 PPPOE TOCTTTT UTIL TTT TTT TT eT 19

Eisen v. Carlisle & Jacquelin,

re ee cise ease seg bons eckneeneeues 7

Flournoy v. Wiener,

COT eT TT TTT TTT reer 20

Gideon v. Wainwright,

i PS sin oucg 546 6.6.6600 0s NC CRS ~EK HEE S 22

Gillespie v. United States Steel Corp.,

i re ea ce ead eetkeeeewedae 8

Gitlow v. New York,

PTT TT TTT TTT TTT CTT TTT 19

Grayned v. City of Rockford,

I Sic awe 6 oes scadoutesesasensks 18

Hess v. Indiana,

i En in co ceeneese ee eesseneetesenees 20

Vv

Japan Line Ltd. v. County of Los Angeles,

SEG So Occ cecereeesosensercsdwed’s 2

King Manufacturing Co. v. City Council of Augusta,

i er .. . seceals Bal enh eebee cue een aus 7

LaCross Telephone Corp. v. Wisconsin Board of

Employment Relations,

PTT eTeTITISTITTTe ree 7

Lanzetta v. New Jersey,

i occ cedduduseecttesnevesecess 13,14

Linmark Associates, Inc. v. Township of Willingboro,

Per TT reer Orr Terie 18,19

Local No. 438 Construction Laborers v. Curry,

ou Ge eS ee eee er 8

Maple Flooring Manufacturers Association, et al. v.

United States, 268 U.S. 563 (1925) ..............0005. 19

Mercantile National Bank v. Langdeau,

fg er ee 8

Miami Herald Publishing Co. v. Tornillo,

NNN ee ee Cia cupegkebbeeteesenceans 9

National Society of Professional Engineers v. United States,

ee eee 15

North Dakota Pharmacy Board v. Snyder's Stores,

TTT TTT TT TT Tee ee 8.11

Northern Pacific Railway Co. v. United States,

I cic c dadcvadeesetdoeceetweewss 15,16

Parker v. Levy,

SS SUED oitinvokeecccccecvcesesvesesetes 14

Penekamp v. Florida,

eee cues hese heehee eunee es 20

Prudential Ins. Co. of America v. Cheek,

dd iwee dedi s ce nceednanceeps 20

Radio Station WOW, Inc. v. Johnson,

a oe ews es aedeueb ones 8,12

vi

Railway Express Agency v. Virginia,

rE Pe 7

Schenck v. United States,

ge! 2 PPP ree ee 17,19

Standard Oil Company of New Jersey v. United States,

Bee Was CER eSencecksesescstésscciansaeee 16

United States v. Cohen Grocery Co.,

ee ek Be GI hha Novisc de ecinecetesaesscuseeses 13

United States v. United Staies Gypsum Co.,

GS Te Ge Pt hhc Koh vvndcdancdéncacencsshseous 16

Warren Trading Post Co. v. Arizona Tax Commission,

Fee Was GP UND bk bcecnnscosccexvsdsuctunesueeouss 2

Wood v. Georgia,

eB TTT ee 19,20

United States v. Brighton Building & Maintenance Co.,

598 F.2d 110 (7th Cir. 1979), cert. denied

GD CE, GE cb 6d écsccnsccienscdevasuectaeees 16

United States v. Woods,

ee F | Lo 8 . pret r e 22

Windham v. American Brands, Inc.,

565 F.2d 59 (4th Cir. 1977), cert. denied

GS GE. Ge eee 66600 0 sevaseduevessatiscnaen 17

Constitutional Provisions

Constitution of the United States,

ens SOD 5. 4 cn 6's d0020060kcéonnenneun 2,17,18,19

ee OI 6 oc c-h caddis dcdanessadsesteeeeee 22

Fourteenth Amendment, Section | ............... passim

Statutes

Bo UE, Cer ee 6. oeo ve vccececeusesétenses passim

1968 Ga.Laws 1249, 1308

(Ga. Code Ann. §26-2308(a)) .... 2... oe cee eee passim

vil

Other Materials

Krantz,Pretrial Discovery in Criminal Cases:

A Necessity for Fair and Impartial Justice,

i , OP ED iivccacccscscccccseseoeses 22

Developments in the Law-Discovery,

es Bic Ms PIE so ccc ccc ccerccevesesccess 22

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

SHEPHERD CONSTRUCTION CO., INC.,

DAN P. SHEPHERD AND J. HAROLD SHEPHERD,

Appellants,

v.

STATE OF GEORGIA,

Appellee.

ON APPEAL FROM THE

SUPREME COURT OF GEORGIA

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The judgement of the Supreme Court of Georgia was entered

on July 7, 1981 and revised on July 23, 1981. Timely motions for

reconsideration were filed. The motion for reconsideration in

case number 37387 was denied on July 23, 1981, and the motion

for reconsideration in case numbers 37421 and 37422 was

denied on July 30, 1981. The text of the two opinions of the -

Supreme Court of Georgia, the orders on the motions for recon-

sideration issued by that Court together with the relevant

Orders of the Superior Court of Fulton County, Georgia, are in

the Appendix. The revised opinion of the Supreme Court of

Georgia is reported at 248 Ga. 1, 281 S.E. 2d 151 (1981).

JURISDICTION

At the earliest possible stage of the proceedings before the

Superior Court of Fulton County, Georgia, the appellants

raised the claim that Ga. Code Ann. §26-2308(a) is uncon-

stitutionally vague and overbroad and therefore violative of the

Fourteenth Amendment to the United States Constitution, and

that the State’s action in denying appellant's requests for access

to exculpatory materials in the State’s possession violates the

appellant’s due process rights under the Fourteenth Amend-

ment to the United States Constitution. The Supreme Court of

Georgia, in a four-two divided opinion, held that the statute did

not infringe upon protected speech and was neither uncon-

Stitutionally overbroad nor vague. The Supreme Court of

Georgia further found the discovery request to be without merit

and summarily affirmed the action of the trial court in denying

appellants’ discovery motions without hearing evidence or oral

argument of counsel, in essence holding that the action of the

State in denying appellants’ request for access to exculpatory

materials was not violative of due process. It thus considered

and expressly rejected the federal constitutional claims. These

important federal questions were timely raised by appellants

throughout the proceedings before the trial court and in the

Supreme Court of Georgia.

2

The opinion of the Supreme Court of Georgia, upholding the

validity of Ga. Code Ann. §26-2308(a), was entered on July 7,

1981. A motion for reconsideration was filed in case number

37387 and denied on July 23, 1981. A motion for rehearing was

entertained and denied on July 30, 1981 in case numbers 37421

and 37422.

A notice of appeal to this Court was duly filed in the Supreme

Court of Georgia on September 21, 1981.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1257(2) (1976). The following decisions of this Court confirm

that there is jurisdiction over this appeal as a matter of right un-

der that statute: Japan Line Lid. v. County of Los Angeles, 441

U.S. 434 (1979); Cohen v. California, 403 U.S. 15 (1971); Warren

Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685

(1965); Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653

(1948).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. First Amendment: United States Constitution:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or the press; or the right of the people

peaceably to assemble, and to petition the government for a

redress of grievances.

Applicable to the State of Georgia via the Fourteenth

Amendment to the United States Constitution. Gitlow v. New

York, 268 U.S. 652 (1952).

2. Fourteenth Amendment: Section |: United States Con-

stitution

All persons born or naturalized in the United States, and sub-

ject to the jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall make or en-

force any law which shall abridge the privileges or immunities of

citizens of the United States: nor shall any State deprive any

person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protec-

tion of the laws.

3. 1968 Ga. Laws 1249, 1308 (Ga. Code Ann. §26-2308(a)):

Conspiracy in restraint of free and open competition.

(a) Transactions with the State:

A person who enters into a contract, combination, or con-

spiracy in restraint of trade or in restraint of free and open com-

petition in any transaction with the State or any agency thereof,

whether said transaction be for goods, materials, or services,

shall, upon conviction, be punished by imprisonment for not

less than one nor more than five years. The crime of conspiracy

in restraint of free and open competition in transactions with

the State shall be complete when the contract, combination, or

conspiracy is effected, and an overt act in furtherance thereof

has been committed.

STATEMENT OF THE CASE

Appellants Shepherd Construction Co., Inc., Dan P.

Shepherd, President of Shepherd Construction Co., Inc., and J.

Harold Shepherd, Vice-President of Shepherd Construction

Co., Inc., are the appellants in this action. Shepherd Construc-

tion Co., Inc. is a contractor primarily engaged in the business

of constructing highways. The Company works mostly on pro-

jects for the Georgia Department of Transportation. The Com-

pany is a qualified bidder on DOT projects and obtains its

highway construction contracts through a bidding system es-

tablished and maintained by the DOT.

In connection with an intensive and well publicized investiga-

tion of the highway construction industry in Georgia, Arthur K.

Bolton, at that time the Attorney General of the State of

Georgia, issued an Administrative Order on November 20, 1980

designating certain individuals as his representatives for the

presentation of the case State v. Shepherd Construction Co.,

Inc., Dan P. Shepherd and J. Harold Shepherd before a grand

jury and any subsequent criminal proceedings. The next day

these Special Prosecutors obtained an indictment in seven

counts from a Fulton County, Georgia, grand jury charging the

appellants with conspiracies to restrain free and open competi-

tion in transactions with the State under Ga. Code Ann. §26-

2308(a). Shepherd Construction Co., Inc. was indicted under all

seven counts, Dan P. Shepherd was indicted under four counts

and J. Harold Shepherd was indicted under five counts.

Count One alleges that on May 14, 1975, Shepherd Construc-

tion Co., Inc. and Dan P. Shepherd conspired with Inter State

Paving Company and its officials to restrain and prohibit Inter

State from submitting competitive bids on highway projects in

Georgia from July 1, 1975, to June 1, 1976, and that on August

21, 1975 Dan P. Shepherd solicited an artificially high bid from

Inter State. No other acts are alleged to have occurred during

the one year period of the claimed conspiracy. The Georgia

Supreme Court determined that prosecution of Count One is

barred by the applicable statute of limitations and this Count is

no longer at issue in this case. (Appendix, A4-A5).

Count Two accuses Shepherd Construction Co., Inc. and J.

Harold Shepherd of conspiring with Inter State and its officials

and “others” (who are unnamed) to predetermine the low bid-

der on a State highway project. The State contends that

Shepherd Construction Co., Inc. agreed to submit a high bid on

the project in exchange for a cash payment from Inter State in

an amount equal to 50 cents per ton of asphalt mix to be used

on the project. It is alleged that the high bid was submitted on

September 28, 1977, but there is no allegation that the cash pay-

ment was made.

Count Three alleges that on October 25, 1977, Shepherd

Construction Co., Inc. conspired with Hoover, Inc., Road

Builders, Inc. and “others” (not named) to predetermine the

low bidder on a State highway project in Hall and Jackson

Counties.

Counts Four and Five allege that the appellants conspired on

November 17, 1977, with Inter State and “another” (not

named) to predetermine the low bidders on two segments of

construction of Interstate 20 in DeKalb and Rockdale Coun-

ties. Count Four says that Shepherd Construction Co., Inc. in a

joint venture got one segment of the project and Count Five

says that Inter State got the other segment.

Count Six alleges that Shepherd Construction Co., Inc. and J.

Harold Shepherd conspired on October 25, 1977 with Road

Builders, Inc. of Tennessee, Hoover, Inc., Inter State and

“others” (unnamed) to predetermine the low bidder on a State

highway project in Gwinnett and Barrow County and that

Shepherd Construction Co., Inc. submitted a bid which enabled

“another company” to be low bidder on the project.

Count Seven alleges that the appellants conspired with Inter

State and “‘another” (unnamed) to predetermine the low bidder

on a State highway project and to enable Inter State to be the

low bidder.

Appellants were arraigned on January 16, 1981, and entered

pleas of not guilty to all charges. The trail court scheduled hear-

ings on all motions, pleas and demurrers for the week of

February 2, 1981, and set trial for April 6, 1981. Since a number

of appellants’ motions were evidentiary in nature, witnesses

were under subpoena for the hearing on February 2, and appel-

lants were prepared to offer evidence on a number of contested

issues.

The appellants filed two motions in the Superior Court of

Fulton County, Georgia which are the subject matter of this ap-

peal. The first is a motion to dismiss the indictment because the

underlying statute, Ga. Code Ann. §26-2308(a) is uncon-

stitutionally vague and overbroad. The second is a motion for

discovery and to compel disclosure of exculpatory materials and

a motion for discovery regarding the pre-indictment phase of

this case.

The Superior Court of Fulton County considered argument

as to the constitutionally of the statute on vagueness grounds.

After hearing the argument, the trial court ruled the statute un-

constitutional finding that “*. . . the statute’s term ‘conspiracy in

restraint of free and open competition’ is overly broad and un-

constitutionally vague in that said term has no meaning at com-

mon law, is not defined by common understanding and practice

and does not apprise the defendants or the public of the

proscribed conduct within the intendment of the statute "’ (Ap-

pendix, A21). This ruling terminated the proceedings.

Despite the fact the proceedings had been terminated, the

trial court issued a written order the next day finding that the

appellants had waived oral argument on all other issues and

denying most of the appellant’s motions, pleas and demurrers,

including appellant’ motion for discovery and to compel dis-

closure of exculpatory materials and motion for discovery

regarding the pre-indictment phase of the case. (Appendix, A22-

A26). This order was entered at 8:45 A.M.., five minutes before

the written order declaring the statute unconstitutional.

The State appealed the decision holding the statute uncon-

stitutional to the Supreme Court of Georgia. Appellants

brought a cross-appeal raising numerous issues. The relevant is-

sues raised in the cross-appeal in the Supreme Court of Georgia,

for purposes of this appeal, are that the trial court erred in deny-

ing appellant’s motions to compel discovery and that the trail

court erred in ruling that the appellants waived oral argument

on any motions filed of record on February 2, 1981. In an opi-

nion issued on July 7, 1981, a divided Supreme Court of

Georgia held that Ga. Code Ann. §26-2308(a) is not uncon-

stitutionally vague or overbroad. (Appendix, Al3-A15). The

Court came to this conclusion via a reasoning process in which

it equated a “conspiracy in restraint of free and open com-

petition” with “a conspiracy in restraint of trade” and inserted

the word “unreasonable” (where is nowhere found in the

statute) as a qualifying term for both the phrase “restraint of

trade” and “restraint of free and open competition” by judicial

fiat. (Appendix, A1l3-A15). The Supreme Court of Georgia also

summarily held appellant’s enumeration of errors regarding dis-

covery meritless, with no discussion whatsoever of these issues.

(Appendix, A17). After this decision was issued, the Supreme

Court of Georgia issued a revised opinion on July 23, 1981, but

the holdings 27d discussion of the issues now before this Court

remained the same. (Appendix, A2-A4and A7). The remainder

of this revised opinion is not relevant to the instant appeal. Ap-

pellants filed a motion for reconsideration of this revised opi-

nion which was denied on July 30, 1981. (Appendix, A10-A11).

Because the highest court of the State of Georgia upheld the

validity of the Georgia statute despite apellant’s claim that the

law is repugnant to the United States Constitution, appellants

are entitled to an appeal as of right to this Court under 28

U.S.C. §1257(2)( 1976). Where a state court construes a state law

in a manner which conflicts with the United States Constitu-

tion, this Court has consistently held there is an appeal of right

available under 28 U.S.C. 1257(2)(1976) and its predecessor.

See, e.g. La Crosse Tel. Corp. v. Wisconsin Board,336 U.S. 18

(1949); Railway Express Agency v. Virginia, 282 U.S. 440 (1931);

King Manufacturing Co. v. City Council of Augusta, 277 U.S. 100

(1928). Because the Supreme Court of Georgia erred in its deci-

sion holding that the Georgia statute prohibiting conspiracies in

restraint of free and open competition is not violative of the

United States Constitution, appellants have filed a timely notice

of appeal to this Court following the denial of appellant's mo-

tion for reconsideration by the Supreme Court of Georgia. (Ap-

pendix, A27-A29).

SUBSTANTIALITY OF THE FEDERAL QUESTIONS

A. THE ISSUES IN THIS CASE PRESENT A “FINAL

JUDGEMENT” AND SHOULD BE REVIEWED BY THIS

COURT AT THIS TIME.

A preliminary issue present in this apeal is whether or not this

case presents a “final judgement’’ pursuant to 28 U.S.C.

§1257(2) and is therefore appropriately presented to this Court

at this juncture in the litigation. There is no self-enforcing for-

mula which defines when a judgement is ‘final.’ This Court has

often given the finality requirement a “practical rather than a

technical construction.” Cohen v. Beneficial Industrial Loan

Corp.,337 U.S. 541, 546 (1949). See also Abney v. United States,

431 U.S. 651, 685 (1977); Eisen v. Carlisle and Jacquelin, 417

U.S. 156, 171 (1974); Chapman v. California, 1020 , 405 U.S.

1021 (1971). This court has also been inclined to follow a

“pragmatic approach” to the question of finality, Bradley v.

Richmond School Board, 416 U.S. 696, 722-23, n. 28 (1974), and

to define a final decision as not necessarily meaning “the last

order possible to be made in a case.”’ Gillespie v. United States

Steel Corp., 379 U.S. 148, 152 (1964). The concept of finality

has acquired an expanding “penumbral area,” Radio Station

WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1945); North Dakota

Pharmacy Board v. Snyder's Stores,414 U.S. 156, 160 (1973),

which generally encompasses situations, such as this one, in

which the highest Court of a state has finally determined the

federal issue present in a particular case, but in which there are

further proceedings in the state courts yet to come. Supreme

Court rulings such as Local No. 438 Construction Laborers v.

Curry, 371 U.S. 542 (1963), and Mercantile National Bank v.

Langdeau, 371 U.S. 555 (1963), look beyond the mere fact that

further proceedings are contemplated, and assess finality of the

ruling on the federal question in terms of the likely impact of the

subsequent proceedings on that ruling or on the federal policies

at stake.

The most significant case in this area is Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469 (1975). There the Court was con-

fronted with a state court opinion that had rejected challenges

under the Fourteenth Amendment to a Georgia statute

authorizing suits against the press for publishing the name of a

rape victim. After validating the statute and finding that the

trial court had erroneously entered summary judgement for the

plaintiff victim, the Supreme Court of Georgia remanded the

case for a full trial on the merits of the cause of action. In ac-

cepting jurisdiction to review that judgement, this Court stated:

The Georgia Supreme Court's judgement is plainly final

on the federal issue and is not subject to further review in

the State courts ... (E)ven if appellants (the press)

prevailed at trial and made unnecessary further considera-

tion of the constitutional questions, there would remain in

effect the unreviewed decision of the State Supreme Court

that a civil action for publishing the name of a rape victim

disclosed in a public judicial proceedng may go forward

despite the First and Fourteenth Amendments. Delaying

final press decision in the First Amendment claim until

after trial . . . will leave the press in Georgia operating in

the shadow of the civil and criminal sanctions of a rule of

law and a statute, the constitutionality of which is in

serious doubt. 420 U.S. at 485-86.

The Court concluded that according finality to this state court

judgement would be “consistent with the pragmatic approach

we have followed in the past determining finality.” 420 U.S. at

486. The Court further stated:

That the petitioner who protests against the state court's

decision on the federal questions might prevail on the

merits on nonfederal grounds in the course of further

proceedings anticipated in the state court and hence ob-

viate later review of the federal issue here is not preclusive

of our jurisdiction. Curry, Langdeau, North Dakota State

Board of Pharmacy, California v. Stewart, 384 U.S. 436, 86

S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (decided with Miranda

v. Arizona), and Miami Herald Publishing Co. v. Tormillo,

418 U.S. 241, 94S. Ct. 2831, 41 L. Ed. 2d 730(1974), make

this clear. In those cases, the federal issue having been

decided, arguably wrongly, and being terminative of the

litigation if decided the other way, the finality rule was

satisified. 420 U.S. 469, 487 n. 13 (1975).

Cox is on point with the instant case. Here, the decision of the

Supreme Court of Georgia is clearly final on the federal issues.

Appellants may not present these issues for further considera-

tion by the trial court, since the highest court of the State of

Georgia has addressed them. Even if appellants prevail on the

merits at the trial of this action, there will remain in effect the

final judgement of the Supreme Court of the State of Georgia

that a Georgia statute providing that any person who enters

into a conspiracy in restraint of free and open competition in a

transaction with the State is valid under the Fourteenth Amend-

ment to the United States Constitution. Delaying final decision

on the claim involving the constitutionally of the Georgia

10

statute until after the trial of this action leaves every busines-

sman in Georgia who does business with the State in peril of be-

ing indicted under an unconstitutional statute, and if the appel-

lants prevail on the merits in trial court, it may be years before

this issue can be presented to this Court again. This point is il-

lustrated by the fact that Georgia statute was passed in 1968 but

the first indictment under the statute was not until 1981, thir-

teen years later.

Cases such as Bateman v. Arizona, 429 U.S. 1302 (1976),

which state that a “final judgement” generally means the im-

position of a sentence are inapplicable. in Bateman, the defen-

dant was convicted under the Arizona criminal statute. The trial

court, upon post-trial motion of defendant's counsel, held the

Arizona statute at issue unconstitutional. When the issue was

addressed by the Supreme Court of Arizona, the Court

validated the statute and remanded the case to the trial court to

enter a judgment of conviction and to sentence the defendant.

The defendant filed an “Application for Bail Pending Certiorari

or in the Alternative Application for Stay of Mandate of the

Supreme Court of the State of Arizona” before the trial court

after its sentencing. The trial judge denied the application and

this denial was affirmed by the Arizona Supreme Court. The

defendant brought this same application before the Supreme

Court of the United States as part of a petition for certiorari.

Thus, the actual issue before the Supreme Court of the United

States in Bateman was an application to Mr. Justice Rehnquist,

as Circuit Justice, for bail pending certiorari or, in the alter-

native, for stay of the mandate of the Supreme Court of

Arizona. This Court denied that request because it did not wish

to interfere with the state judicial process, stating: “Due respect

for the principles of comity necessitates a demonstration of

compelling necessity before a single Justice of this Court will

stay the considered mandate of the highest state tribunal.”” 429

U.S. at 1302. As a supplemental reason, this Court noted, in ad-

dition, that final judgement generally means imposition of a

sentence, 429 U.S. at 1306, and that there “was a question”

regarding the finality of the judgement sought to be reviewed

which weighed against the applicant. This Court did not hold

that the judgement was not final, but merely that a question ex-

isted regarding the finality.

It is clear that in Bateman the Court denied the defendant's

application because it did not wish to interfere with the state

judicial process. Here, the Supreme Court of Georgia has stayed

the remittitur in this case in order that an appeal or an applica-

tion for certiorari could be filed with this Court. (Appendix,

A20). The Supreme Court of Georgia directed that this

stay operate until the final disposition of the case in this Court.

Therefore, the noting of jurisdiction by this Court would show

all due respect for the important principle of comity between the

federal and state courts. The Supreme Court of Georgia, unlike

the Supreme Court of Arizona in Bateman, has impliedly held

that the federal issues present in this case are ripe for review at

this time through its stay of all proceedings until final disposi-

tion of this appeal in this Court. Further, as noted previously,

the court in Bateman did not hold the judgement presented was

not a “final judgment” within the meaning of 28 U.S.C. §1257;

it merely noted that any doubt that might exist on this point

weighed against the applicant. It is respectfully submitted by

the appellants that the instant case is much more like Cox

Broadcasting Corp. v. Cohn, discussed supra, than Bateman.

Bateman is simply not persuasive authority on the issue of “final

judgement”. When the finality of the ruling is assessed in terms

of the federal policies at stake, the fact that the federal issue in

this case has finally been determined and that it may be years

before this important issue can again come before this Court

means that the “final judgment” on the issues present in this ap-

peal was the Supreme Court of Georgia's July 23, 1981 opinion.

Furthermore, if the appellants in this action are found not

guilty in the trial court, the important federal issues in this case

will not be considered. A prime example of this finality yard-

stick is displayed in North Dakota Pharmacy Board v. Snyder's

Stores, 414 U.S. 156 (1973). There the Court found finality

because the federal issue that had been resolved in the state

court’s original judgment could not survive the remand for

further state administrative proceeding. In that case, the State

Pharmacy Board had refused to issue an operating permit in

reliance on a state statute, which the North Dakota Supreme

Court then held invalid under the federal Constitution. But the

12

remand of the matter for further proceedings “sans the (federal)

constitutional issue”’ made it clear that any subsequent grant or

denial or the permit, or an appeal therefrom, would be based

solely on state law grounds, and that the federal issue could not

be renewed. In such circumstances, the state court’s resolution

of the federal constitution issue was deemed ripe for review

before the remand was effectuated. 414 U.S. at 162-63.

California v. Stewart, 384 U.S. 436 (1966) is also relevant.

There, a state court judgment, voiding a conviction on federal

constitutional grounds and ordering a retrial was held final

since no appeal would be available to the petitioning state if the

defendant was acquitted on the retrial, making it impossible to

renew the federal constitutional question.

Here, as in Stewart, if the appellants are acquitted at the trial

of this action, the federal constitutional question will not be

reviewed. The appellants, since their work includes constant

contracts with the State, even though acquited, must face the

prospect of again being indicted under an unconstitutionally

vague and overbroad statute which was validated by a divided

State Supreme Court in an opinion containing a persuasive and

incisive dissent. (Appendix, A8). The remaining litigation

will not give rise to a federal question. The federal questions

presented here have been finally adjudicated by the highest state

court. As this Court noted in Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120 (1945), this Court departs from an ab-

solute “finality” requirement for federal appellate jurisdiction

when a ruling may cause serious public consequences. 326 U.S.

at 123. This requirement is certainly met here. This important

issue should be reviewed now.

B. 1968 GA. LAWS 1249, 1308 (GA. CODE ANN. §26-2308(a))

IS UNCONSTITUTIONALLY VAGUE BECAUSE THE

TERM “CONSPIRACY IN RESTRAINT OF FREE AND

OPEN COMPETITION” IS NOT DEFINED BY THE

STATUTE, HAS NO MEANING AT COMMON LAW AND

IS NOT DEFINED BY COMMON UNDERSTANDING OR

PRACTICE.

Appellants respectfully submits that the Supreme Court of

Georgia seriously misanalyzed the relevant precedents in

validating Ga. Code Ann. §26-230(a). It did not properly hold

13

Ga. Code Ann. §26-2308(a) unconstitutionally vague and

overbroad as dictated by the decisions of this Court. The

Supreme Court of Georgia, in a cursory eleven paragraph dis-

cussion of the entire issue, held the Georgia statute con-

stitutional through basically the following reasoning: The

prohibition against “a conspiracy in restraint of free and open

competition” is to be interpreted to mean and is the same as “‘a

conspiracy in restraint of trade.”” The Court by judicial con-

struction may insert the work “unreasonable” as a term qualify-

ing both the phrase “restraint of trade’’ and the phrase

“restraint of free and open competition.” (Appendix, A2).

After erroneously assuming the existence of a common law

definition for its newly created phrase “unreasonable restraint

of free and open competition” by referring to cases decided un-

der the Sherman Act, which has an extensive common law

background and completely different language from the

Georgia statute, the Court concluded that the appellants had

more that fair notice that their conduct was prohibited by Ga.

Code Ann. §26-2308(a). (Appendix, A2-A4). Thus, the

Supreme Court of Georgia did not analyze the Georgia statute

in light of the holdings of this Court in cases such as United

States v. Cohen Grocery Co., 255 U.S. 81 (1921); Connally v.

General Construction Co., 269 U.S. 385 (1926); Lanzetta v. New

Jersey, 306 U.S. 451 (1939)and Cline v. Frink Dairy Co., 274

U.S. 445 (1927), which hold that if a term is not sufficiently

definite to provide a standard of conduct in a criminal statute it

is unconstitutionally vague. The holding of the Supreme Court

of Georgia is contrary to the controlling decisions of this Court.

Most significiant, the Supreme Court of Georgia did not con-

sider whatsoever the language of the statute to determine if the

terms “conspiracy in restraint of free and open competition” or

“transactions with the State” certain a core of meaning or un-

derstanding.

If a term in a statute has no meaning, derived either from a

definition in the statute, common law history or commonly un-

derstood meaning, there is no necessity for an examination of

the precise conduct and a facial attack should be allowed. If the

term means nothing, it is unconstitutionally vague and therefore

void.

This Court has concluded on a number of occasions that ef-

14

forts by the highest court of a state to validate a statute which is

unconstitutionally vague and therefore repugnant to the United

States Constitution should not be permitted. See, e.g., Cline v.

Frink Dairy Co., 274 U.S. 445 (1927) (Colorado antitrust law

struck down as vague); Connally v. General Construction Co.,

269 U.S. 385 (1926) (Oklahoma law regulating wages of state

employees struck down as vague). The classic example is

Lanzetita v. New Jersey, 306 U.S. 1 (1939). In Lanzetta, this

Court struck down on vagueness ground a New Jersey statute

making it a penal offense to be a “gangster.”’ The Court struck

down the statute as facially invalid.

In Parker v. Levy, 417 U.S. 733 (1974), this Court explained

why in Lanzetta type cases a statute should be determined in-

valid on its face without an inquiry into the precise conduct al-

leged:

This Court has on more than one occassion invalidated

statutes under the due process clause of the Fifth or

Fourteenth Amendment because they contained no stan-

dard whatever by which criminality could be ascertained,

and the doctrine of these cases has subsequently acquired

the shorthand description of “‘void for vagueness.” (citing

inter alia Lanzetta) . . . In these cases, the criminal provi-

sion is vague “not in the sense that it requires a person to

conform his conduct to an imprecise but comprehensible

normative standard, but rather in the sense that no stan-

dard of conduct is specified at all.’ 417 U.S. at 755.

The vagueness problem here is fundamental. The term is the

Georgia statute — “restraint of free and open competition in

transactions with the State’’ — communicates nothing. There is

no core of meaning or understanding associated with the term.

It is vague not just as to marginal conduct, but as to all conduct.

Because the term is so devoid of content it conveys notice to no

one, including the appeliants. As this Court stated in Connally v.

General Construction Co., 269 U.S. 385 (1926), where it in-

validated an Okalahoma statute which provided that “not less

than the current rate of per diem wages in the locality” would be

paid to employees of the State: “*(t) he vice of the statute here

lies in the impossiblility of ascertaining, by any reasonable test,

1S

that the Legislative meant one thing rather than another...”

269 U.S. at 394. The exact same vice exists in the Georgia

statute here.

Similar objections can also be made to the term “transaction

with the State”. What constitutes a transaction with the State?

Are only direct transactions with the State included, as where

bids are directly submitted by a contractor? Are agreements

between suppliers who sell to manufacturers who ‘n turn deal

with the State included? Are subcontractors inciuded? The

statute gives no clve as to what is meant or included. Apparent-

ly, any transaction that affects a transaction with the State in

any way, no matter how remote, insignificant, or far removed, is

included within the prohibitions of the statute. The problem

with the language of the statute is not that a person would have

diffuculty if deciding whether his contemplated conduct would

fall on one side or the other of an existing and intelligible stan-

dard of guilt; the problem is that no intelligible standard of guilt

is given. The problem with the analysis employed by the

Supreme Court of Georgia is that it failed to consider the term

“restraint of free and open competition” at all. Instead, it in-

terpreted the term “unreasonable restraint of competition”

which is what it deemed synonymous with both a conspiracy “in

restraint of free and open competition” and “‘in restraint of

trade.” Since the Georgia statute prohibits both conspiracies in

“restraint of trade” or “in restraint of free and open com-

petition,” this interpretation equates the two and makes the

statute redundant. This tortured analysis means the Supreme

Court of Georgia never considered the appropriate statutory

language in light of the relevant controlling authorities of this

Court. If it had, it would have held the language uncon-

stitutionally vague, since it gives no notice of what conduct is

prohibited.

Further, the decisions of this Court which the Supreme Court

of Georgia relied upon in holding that “a conspiracy in restraint

of trade or in restraint of free and open competition” means a

prohibition against a conspiracy in unreasonable restraint of

competition deal with interpretations of the Sherman Act.

These cases are National Society of Professional Engineers v.

United States, 435 U.S. 679 (1977); Northern Pacific Railway

16

Co. v. United States, 356 U.S. 1 (1958); Appalachian Coals, Inc.

v. United States, 288 U.S. 344 (1933); and Standard Oil Com-

pany of New Jersey v. United States, 221 U.S. 1 (1910). Cases

construing the Sherman Act are irrelevant. First, the language

of the statute is different. The Sherman Act prohibits con-

spiracies in “restraint of trade.”” Second, there is a long line of

federal cases construing the Sherman Act in the civil context

which arose before violations were deemed felonies which gave

some definition to the federal crime. Other federal antitrust

cases cited in the Supreme Court of Georgia’s opinion, i.e.,

United States v. United States Gypsum Co., 438 U.S. 422, 483-40

(1978), and United States v. Brighton Building & Maintenance

Co., 598 F. 2d 101, 105 (7th Cir. 1979), cert. denied 444 U.S. 840

(1980) make it clear that the Sherman Acct itself has been held to

possess the requisite constitutional certainty only because of a

judicial gloss limiting the application of the criminal sanction to

limited categories of so-called per se offenses. Civil and criminal

cases decided under the Sherman Act have articulated and

developed a distinction between per se and non- per se offenses,

and civil precedents have developed and defined the parameters

of the application of criminal sanctions. With the Georgia

statute, there is no civil counterpart, no legislative or judicial

history, and no definitions in the statute. It is illogical for the

Supreme Court of Georgia to construe the statute in question as

a “litthe Sherman Act” limited to transactions with the State

and adopt federal decisions dealing with a dissimilar law with a

vastly dissimilar background and interpretation.

The statute as applied in this case illustrates not only the

vagueness of its terms, but also the impossibility of relying upon

the common law or the Sherman Act as the guide for future ac-

tions. Suppose a businessman in Georgia wanted to determine

whether exchanging price information with a competitor would

violate Ga. Code Ann. §26-2308(a). Contrary to what the Court

has held, a businessman who relied on the common law or the

cases construing the Sherman Act would be misled in thinking

that he had committed no crime in the state of Georgia.

The reasons for this are many. First, the Sherman Act re-

17

quires specific intent. United States v. United States Gypsum

Co., 438 U.S. 432 (1978). Second, even though price fixing is il-

legal per se, the mere fixing of a price is not violative of the

Sherman Act. Broadcasting Music, Inc. v. CBS, Inc., 441 U.S. |

(1979). Third, it has been held that the Sherman Act requires

proof of some adverse effect or injury. Windham v. American

Brands, Inc., 565 F. 2d 59 (4th Cir. 1977), cert. denied 435 U.S.

968 (1978). Relying on the Sherman Act, which codified the

common law, a businessman would conclude that as long as he

did not intend to restrain competition and that so long as his ac-

tions did not in fact restrain competition, the mere exchange of

the price information with a competitor would not violate the

Georgia statute. The Georgia statute, however, is not similar to

the Sherman Act or the common law. The Georgia statute

seemingly prohibits the exchange of all price information. com-

plimentary bids, joint ventures and sub-contracts regardless of

intent or effect. This language is vague, gives notice to no one of

what conduct is prescribed, and violates the Fourteenth

Amendment to the United States Constitution.

C. GA. CODE ANN. §26-2308(a) IS UNCONSTITUTIONAL-

LY OVERBROAD BECAUSE IT IMPERMISSIBLY

RESTRICTS PROTECTED COMMERCIAL SPEECH.

In discussing constitutional overbreadth, the Supreme Court

of Georgia correctly stated that a statue is overbroad if it

“sweeps within its ambit activities that in ordinary circum-

stances constitute an exercise of freedom of speech or of the

press,”” (Appendix, A2) but characterized the speech affected

by the Georgia statute as speech which is “‘used in such circum-

stances and [is] of such a nature as to create a clear and present

danger that it wiil bring about the substantive evils that [the

state] has a right to prevent. (citing Schenck v. United States,

249 U.S. 49 (1919)). (Appendix, A2). As will be shown in the

following discussion, Schenck and the “clear and present

danger” analysis only applies in the context of subversive ac-

tivity. The speech, prohibited by the Georgia statute, is com-

mercial speech, which is clearly entitled to First Amendment

protection.

Bigelow v. Virginia, 421 U.S. 809 (1975) and its progeny es-

tablished that commercial speech is entitled to First Amend-

ment protection and that any statute “which impairs ‘the flow

of truthful and legitimate commercial information’ is con-

stitutionally infirm.”’ All legitimate and truthful commercial in-

formation is protected from state infringement in the same man-

ner and extent as any other privileged speech. Linmark As-

sociates, Inc. v. Township of Willingboro, 431 U.S. 85 (1977). Ga.

Code Ann. §26-2308(a), on its face and as applied in this case,

does impair the flow of protected commercial information.

The indictment alleges that appellants and others exchanged

price information the day before bids on various road projects

were to be submitted to the State. This, according to the State,

constitutes price fixing and is illegal per se. Properly alleged

price fixing should be condemned, but only where intent to

restrain competition or some anti-competitive eifect is proven.

Otherwise, the statute punishes the appellarits solely on the con-

tent of their speech. This is clearly and patently violative of the

First Amendment. Ga. Code Ann. §26-2308{a) contains no

specific intent requirement. Furthermore, the argument that the

statute should be read to include an actual impact on trade as an

element of the crime was rejected by the trial court and by the

Supreme Court of Georgia. Therefore, since proof of actual im-

pact on trade is not a prerequisite to conviction under the

statute, appellants stand to be convicted merely on proof of the

exchange of price information. It is totally irrelevant whether

this conduct was done in good faith or whether it harmed the

State. There is no indication that the price information ex-

changed was anything but truthful and legitimate, so the statute

cannot be justified on that basis. Neither can the statute be

justified as a reasonable time, place or manner restriction. See,

e.g.. Grayned v. City of Rockford, 408 U.S. 104 (1972). The

statute does not regulate speech which is merely incidental to

conduct, or which regulates criminal transactions. If the ex-

changes of prices were done without intent to restrain competi-

19

tion and if competition was not actually restrained, it necessari-

ly follows that the State may not prohibit the speech or make it

illegal. Ga. Code Ann. §26-2308(a) is exactly the kind of statute

restricting the flow of “truthful and legitimate commercial in-

formation” found to be constitutionally infirm by Linmark,

supra, and Bieglow, supra. Unless Ga. Code Ann. §26-2308(a) is

invalidated, appellants stand to be punished solely for the con-

tent of their speech.

The Supreme Court of Georgia properly determined that Ga.

Code Ann. §26-2308(a) bans certain speech. The remainder of its

analysis, however, is patently faulty. As explained above, all

legitimate and truthful comercial information is protected from

State infringement in the same manner and extent as any other

privileged speech. The exchange of price information is

legitimate and essential commercial speech. Maple Flooring

Manufacturers Association. et al. v. United States, 268 U.S. 563

(1925). Ga. Code Ann. §26-2308(a) impairs the free flow of price

information, joint venture arrangements, and subcontracts, as

well as any other commercial speech or dealing between com-

petitors which might allegedly restrain “free and open com-

petition.”” The statute allows punishment solely on the content

of speech, without any evidence of actual impact on trade.

The Supreme Court of Georgia, relying on Schenck v. United

States, 249 U.S. 49 (1919), adopted a “clear and present

danger” analysis and held that since the Georgia statute bans

speech which creates a clear and present danger that individuals

will conspire to create an unreasonable restraint against com-

petition, it is not unconstitutionally overbroad as infringing

upon speech protected by the First Amendment. (Appendix, A

3). Appellants submit that the clear and present danger

analysis does not apply to this case. Clear and present danger

cases arise in the context of legislation prohibiting subsersive ac-

tivities. See, e.g.. Dennis v. United States 249 US. 49 (1918);

Gitlow v. New York, 268 U.S. 652 (1925); Debs v. United States,

249 U.S. 204 (1919); Schenck v. United States, 249 U.S. 49

(1918). This clear and present danger analysis has no applica-

tion outside of this particular context. See, e.g., Wood v.

20

Georgia, 370 U.S. 375 (1962); Craig v. Harney, 331 U.S. 367

(1947); Penekamp v. Florida, 328 U.S. 331 (1946); Bridges v.

California, 314 U.S. 252 (1941).

The Supreme Court of Georgia compounded its error by mis-

construing the clear and present danger standard. In the sixty-

three years since Schenck, supra, was decided, this Court has

had many opportunitites to hear clear and present danger cases.

According to the current formulations of the standard, a state

cannot punish the mere advocacy of lawlessness. Before a state

can prohibit this kind of speech it must be shown that it was

spoken with the intent to cause imminent lawlessness and that it

was likely to cause such lawlessness. Hess v. Indiana, 414 U.S.

105 (1973). Since the Georgia statute permits a conviction

regardless of intent, even if the clear and present danger stan-

dard was properly applied to this case, it could not be used to

validate the statute. The Georgia statute still impermissibly in-

fringes upon constitutionally protected commercial speech.

D. THE SUPREME COURT OF GEORGIA ERRED IN RUL-

ING THAT THE APPELLANTS WAIVED ORAL AX&GU-

MENT ON ANY MOTIONS FILED OF RECORD AND IN

DENYING APPELLANTS MOTION FOR DISCOVERY.

The issue regarding the constitutionality of Ga. Code Ann.

§26-2308(a) lies squarely within this Court's jurisdiction under

28 U.S.C. §1257(2)(1976) since the Georgia statute is repugnant

to the United States Constitution and the decision of the

Supreme Court of Georgia was in favor of its validity. Appel-

lants are entitled to present in this appeal any other denial of

federal right whether or not capable in itself of being brought on

appeal, and the non-appealable issues are to be considered

along with the merits of the appealable issues. Flournoy v.

Wiener, 321 U.S. 253, 263 (1944); Prudential Ins. Co. v. Cheek,

259 U.S. 530, 547 (1922). This court expressly ruled to this effect

in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), where it

stated: “In finding that we have appellate jurisdiction, we also

take jurisdiction over any aspects of the case which would

otherwise fall solely within our certiorari jurisdiction.” 420 U.S.

21

at 487, n. 14. Thus, the issues regarding discovery are properly

presented for consideration in this jurisdictional statement.

The Superior Court of Fulton County, Georgia ruled that the

appellants waived oral argument on all motions filed of record

on February 2, 1981, and then proceeded to rule on all pending

motions, pleas and demurrers without permitting evidence or

argument. (Appendix, A22-A26). There is absolutely no basis

for this ruling. The trial court had set aside the entire week of

February 2, 1981, for consideration of appellants’ demurrers,

pleas and motions. Many of these involved evidentiary matters

and appellants were prepared to offer evidence and had witnes-

ses under subpoena.

The proceedings were truncated by the trial court’s ruling on

the constitutional issue. No consideration was given to most of

the appellants’ other motions, pleas and demurrers and appel-

lants had no opportunity to present evidence on the issues.

After ruling from the bench that the statute was uncon-

stitutional, the trial court terminated the proceedings. Then,

without notice to any party and without allowing an oppor-

tunity for hearing or evidence, the trial court denied most of ap-

pellants’ pending motions, pleas and demurrers and certified

this ruling for interlocutory appeal. (Appendix, A22-A26).

Although the trial judge’s desire to submit all issues in the

case to the Supreme Court of Georgia for a single review is un-

derstandable, this should not be done by depriving the appel-

lants of due process of law. The appellants should have been

given an opportunity to present facts, evidence and argument in

support of their motions, pleas and emurrers. The Supreme

Court of Georgia should have reversed the trial court's finding

of a waiver and vacated all portions of the order entered at 8:45

A.M. on February 3, 1981 which were not argued or considered

prior to the trial court’s pronouncement from the bench that the

statute was unconstitutional. Instead the Supreme Court of

Georgia held this enumeration of error without merit, with no

discussion whatsoever of the issue. (Appendix A7).

This appeal does not concern a routine criminal proceeding.

Indeed, as far as the appellants have been able to determine, the

22

present indictment is the first prosecution under the provision

of Ga. Code Ann. §26-2308(a). It is therefore especially essential

that the appellants be provided with fair discovery.

Appellants made prompt and seasonable requests for dis-

covery. In addition, the appellants filed the discovery demands

currently available by Georgia statute. At the time of the mo-

tion hearing on February 2, 1981, as a result of these discovery

requests, appellants had merely received a list of witnesses

(without addresses or phone numbers) and a statement that the

prosecution would furnish any Brady material ““when and if dis-

covered.” In fact, it was obvious from the responses filed by the

prosecution to appellants’ discovery motions that the State was

determined to oppose any attempt at discovery and failed to

fulfill its duties under Brady v. Maryland, 373 U.S. 83 (1963) and

its progeny. Appellants’ discovery motions were summarily

overruled by trial court without hearing or considering

evidence.

Appellants should have been afforded a full hearing on their

entitlement to pretrial discovery to permit them to obtain a fair

trial and to permit effective preparation for trial. Anything less

deprived appellants of due process under the Fourteenth

Amendment to the United States Constitution. In addition, it

deprived the appellants of effective assistance of counsel under

the Sixth Amendment to the United States Constitution which

is applicable to the State of Georgia via the Fourteenth Amend-

ment. Gideon v. Wainwright, 372 U.S. 335 (1963). Cf United

States v. Woods, 487 F.2d 1218 (Sth Cir. 1973) (recognizing that

pretrial preparation by counsel is essential).

Provisions requiring the State to disclose evidence and infor-

mation to a criminal defendant are of recent vintage. Common

law recognized no such requirement. However, the deficiency

was mitigated somewhat by requiring detailed indictments.

Krantz, Pretrial Discovery in Criminal Cases: A Necessity for

Fair and Impartial Justice, 42 Neb. L. Rev. 127 (1962); Develop-

ments in the Law-Discovery, 74 Harv. L. Rev. 940, 1051 (1961).

In support of a reluctance to afford discovery, it has been said

that affording a criminal defendant discovery would give him an

23

unfair advantage or jeopardize the safety of witnesses. Neither

of the foregoing reasons has any application here. The identity

of the State witnesses are already known and there has been no

suggestion of any danger to them. Furthermore, it is the State,

not appellants, which has the advantage in investigating the

case. The grand jury has become an important investigative tool

whereby the prosecution can compel witnesses to testify and

keep their testimony secret. In this case the prosecution has also

been able to arrange pleas bargains and interviews and take

statements of the witnesses listed on the indictment and these

witnesses have refused to talk with appellants’ counsel.

The rule set out in Brady v. Maryland, 373 U.S. 83 (1963) is

that the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the

evidence is material either to guilt or to punishment irrespective

of the good faith or bad faith of the prosecution. 373 U.S. at 89.

This is a strong statement of a significant federal policy man-

dating criminal defendants be given fair pre-trial discovery.

This was not done in this case. The trial court here heard no

evidence or argument, and conducted no in camera review of the

State’s evidence. Instead, it denied the discovery motion out of

hand, holding that it exceeded the scope of Brady, supra. This

ruling was summarily affirmed by the Supreme Court of

Georgia. This is a serious misinterpretation of the law. This

Court should review the facts and grant appellants access to ex-

culpatory information and fair pre-trial discovery.

CONCLUSION

This Court has jurisdiction over this appeal pursuant to 28

U.S.C.§1257(2\(1976). The federal questions raised by the ap-

peal are sufficiently important to warrant plenary considera-

tions, and this Court should note probable jurisdiction of this

appeal.

24

Respectfully submitted,

SCHREEDER, WHEELER & /s/ DAVID H. FLINT

FLINT

1600 Candler Building

Atlanta, Georgia 30045-7501

(404) 681-3450

Arrington, Rubin, Winter,

Krischner & Goger, P.C.

/s/ WARREN O. WHEELER

Counsel of Record

/s/ MARY JO WORKMAN

Counsel for Shepherd

Construction Company, Inc.

/s/ MARVIN ARRINGTON

1210 First National Bank Tower

Atlanta, Georgia 30383

(404) 658-9977

201 Trust Building

505 North McDonough Street

Decatur, Georgia 30030

(404) 378-3634

212 Trust Building

505 North McDonough Street

Decatur, Georgia 30030

(404) 377-0411

/s/ JOHN J. GOGER

Counsel of Record for

Dan P. Shepherd

/s/ CHARLES H. HYATT

/s/ DAVID R. ROGERS

Counsel of Record for

J. Harold Shepherd

Al

APPENDIX

In The Supreme Court of Georgia

Decided: Jul 7 1981

Jul 23 181

37387. STATE v. SHEPHERD CONSTRUCTION COM-

PANY, INC. et al.

37421, 37422. SHEPHERD CONSTRUCTION COMPANY,

INC. et al. v. STATE.

37473. ASHLAND-WARREN, INC. v. STATE.

Jordan, Chief Justice.

The State of Georgia indicted the Shepherd Construction Com-

pany, Inc., Dan P. Shepherd and J. Harold Shepherd

(hereinafter ““The Shepherds”’) on seven counts of “conspiracy

in restraint of free and open competition in transactions with

the State” (Code Ann. § 26-2308(a)). The indictment charged

the Shepherds with conspiring with certain others either to

prohibit said others from submitting various road project bids

lower than the Shepherds’ bids or to prohibit the Shepherd

Construction Company, Inc. from submitting various road pro-

ject bids lower than the others’ bids. The Shepherds filed a series

of pretrial motions. After holding a hearing, the trial court

granted two of the Shepherd's motions and denied the

remainder. The State appeals the two motions which the trial

court granted and the Shepherds appeal the remaining motions

which the trial court denied.

The State indicted Ashland-Warren, Inc. (hereinafter

Ashland) and two of its officers on four counts of violating

Code Ann. § 26-2308(a). Ashland moved to dismiss the indict-

ment as to itself on the ground that a corporation could not be

charged under § 26-2308(a) because the statute provides only

punishment by imprisonment. The trial court denied said mo-

tion and Ashland appealed to the Court of Appeals. On the mo-

tion of Ashland, this Court ordered the appeal transferred to

A2

this Court as a companion to the Shepherd appeal because one

of the motions denied by the Shepherd trial court had raised the

same issue as the Ashland motion.

I. (a) The State argues that the trial court erred in holding

that Code Ann. § 26-2308(a) was unconstitutional because

overbroad and facially vague. We agree.

Code Ann. § 26-2308(a) provides that “‘a person who enters

into a contract, combination, or conspiracy in restraint of trade

or in restraint of free and open competition in any transaction

with the state or any agency thereof, whether said transaction be

for goods, materials, or services, shall, upon conviction, be

punished by imprisonment for not less than one nor more than

five years...”

As defined by the common law, the phrase “restraint of

trade”’ means restraint of competition, Griffin v. Vandegriff, 205

Ga. 288, 293 (53 SE2d 345) (1949); State v. Central of Georgia

Railway Company, 109 Ga. 716 (35 SE 37) (1889); Standard Oil

Company of New Jersey v. U. S. 221 U.S. 1, 39, 55, 57, 59-61

(1910), and, the prohibition against “a conspiracy in restraint of

trade or in restraint of free and open competition” means simp-

ly a prohibition against a conspiracy in unreasonable restraint

of competition.

State of Georgia v. Central of Georgia Railway Company, 109

Ga. at 725; National Society of Professional Engineers v. U. S.,

435 U. S., 679, 687-90 (1977); Northern Pacific Railway Co. v.

U.S. 356 U.S. 1, 4, 5 (1957); Appalachian Coals, Inc. v. U. S.,

288 U. S. 344, 359-60 (1932).

A statute is overbroad only if said statute “does not aim

specifically at evils within the allowable area of state control

but, on the contrary, sweeps within its ambit other activities

that in ordinary circumstances constitute an exercise of freedom

of speech or of the press.”

Thornhill V. Alabama 310 U. S. 88, 97 (1939).

The first amendment does not protect speech which is “used

in such circumstances and [is] of such a nature as to create a

clear and present danger that it will bring about the substantive

evils that [the state] has a right to prevent.” Schenck v. U. S.,

A3

249 U. S. 49, 52 (1918).

In the present case, Code Ann. § 26-2308(a) bans only that

speech by which individuals conspire to create an unreasonable

restraint against competition-that is, only that speech which

constitues a clear and present danger of a substantive evil which

the state may avoid.

Code Ann. § 26-2308(a) is not unconstitutional because

overbroad.

A criminal statute is unconstitutionally vague if (1) the statute

failed to give full notice to the defendant that his conduct was

forbidden, see Smith v. Goguen, 415 U. S. 566, 577-78 (1973);

(2) the statute failed to give fair notice to anyone (including the

defendant) that his conduct was forbidden, see, Smith v.

Goguen, at 572, 578; or (3) the statute (although it does give fair

notice to the defendant) failed to give fair notice to someone

else that his conduct was forbidden. See Young v. American

Mini Theaters, 427 U. S. 50, 58-61 (1975).

A defendant has standing to challenge a statute for failure to

give fair notice to someone else only if (1) the conduct for which

the someone else could be prosecuted under the challenged

statute is expression protected by the First Amendment and (2)

the statute's deterrent effect against the other person’s perform-

ing his protected expressive conduct is both real and substantial.

Young v. American Mini Theaters, 427 U. S. at 59-60. Contra

Parker v. Levy, 417 U. S. 733, 756-7 (1973)

We find that the deterrent effect of Code Ann. § 26-2308 (a)

against someone else’s performing his protected expressive con-

duct is neither real nor substantial. See Bates v. State Bar of

Arizona, 433 U. S. 377, 379-81 (1977).

Accordingly, we hold that the Shepherds are without

standing to challenge Code Ann. § 26-2308(a) for failure to

give fair notice to third parties.

The common law definition of the prohibition contained in

Code Ann. § 26-2308 (a) (unreasonable restraint of competi-

tion) gave the Shepherds more than fair notice that their conduct

was prohibited by said statute. U. S. v. U. S. Gypsum Com-

pany, 438 U.S. 422, 438-40 (1977); U.S. v. Brighton Building &

A4

Maintenance Co., 598 F.2d 1101, 1105 (1979).

Accordingly, we hold that Code Ann. § 26-2308(a) is not un-

constitutionally vague as applied to the Shepherds (and a for-

tiori, we also hold that said Code Section is not uncon-

stitutionally vague as applied to everybody).

(b) The State argues that the trial court erred in granting the

Shepherds’ special demurrer to Counts 2 thru 7 of the indict-

ment. Said Counts charged the Shepherds with conspiring with

named individuals “and others” or “and another” to restrain

free and open competition in transactions with state.

An accused is entitled to an indictment perfect in form as well

as substance if he raises the question on special demurrer. See,

State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977). The

“perfect” indictment must either name the alleged “other” con-

spirators or label them as unknown or unindicted. See Martin v.

State, 115 Ga. 255, 256-7 (41 SE 576) (1902) (Dictum); U. S. v.

Briggs, 514 F.2d 794 (1975). See generally Thompson v. Macon-

Bibb County Hospital Authority, 246 Ga. 777 (273 SE2d 19)

(1980).

In the present case, however, the names of the “other” con-

spirators had been given to the Shepherds by the state in the

state’s written response to the Shepherds’ Brady motion.

For this reason, we hold that the trial court erred in granting

the Shepherds’ special demurrer to Counts 2 through 7 of the in-

dictment. See, U. S. v. Briggs, 514 F.2d at 800, 805.

Il. (a) The Shepherds enumerate as error the trial court's

denial of their motion to dismiss Count I of the indictment as

barred by the four-year period of limitations in Code

Ann. § 26-502(c). The trial court noted the State’s allegation in

Count I that the offense was unknown until October 20, 1980,

and held that, under Code Ann. § 27-601(4),said allegation

stated a legally sufficient ground for tolling the otherwise ex-

pired four-year period of limitation in Code Ann. § 26-502(c).

The Shepherds note, however, that, under Code Ann. § 26-

503(b), the state’s allegation does not state a legally sufficient

ground for tolling the otherwise expired four-year period of

limitations, and, argue that Code Ann. § 26-503(b) impliedly

AS

repealed that part of Code Ann. § 27-601(4) which provides

that the period of limitation shall not run so long as the offense

is unknown.

Code Ann. § 26-502, 503, and 504, effective July 1, 1969,

track the provisions of Code Ann. § 27-601 (Cobb, 838, 842).

Code Ann. § 26-503, however, in tracking that part of Code

Ann. §27-601 which provides that “[No] limitation shall run so

long as the offender or offense is unknown,” states only that no

limitation shall run so long as “the person committing the crime

or crimes is unknown... .”

Accordingly, we hold that Code Ann. §26-503 impliedly

repealed that part of Code Ann. §27-601 which provides that no

limitation shall run so long as the offense is unknown, and that

the trial court erred in denying the Shepherds’ motion to dismiss

Count I of the indictment. See Ezzard v. State, 229 Ga. 465, 467-

68 (192 SE2d 374) (1972).

(b) The Shepherd Construction Co., Inc. and Ashland-

Warren Inc. argue that their respective trial courts erred in

holding that a corporation could be indicted under Code Ann.

§26-2308(a).

Code Ann. §26-2308(a) provides that a person who enters into

a conspiracy in restraint of free and open competition in any

transactions with the state “shail, upon conviction, be punished

by imprisonment for not less than one nor more than five

years.”

Section 26-401(1) of the 1968 Criminal Code [of which §26-

2308(a) is a part] defines the word “person” to include a “‘cor-

poration”’, and § 26-803(a) of that Code provides: “A corpora-

tion may be prosecuted for the act or omission constituting a

crime if, but only if:...The commission of the crime is

authorized, requested, commanded performed or recklessly

tolerated by the board of directors or by a managerial official

who is acting within the scope of his employment in behalf of

the corporation.” Thus the General Assembly clearly provided

that the 1968 Criminal Code would apply to corporations as

prescribed in §26-803. If the General Assembly had intended

that corporations be criminally responsible only for those

A6

crimes on which fines were authorized, it certainly could have

said so. It didn’t. On the contrary, the General Assembly

provided that corporations could be prosecuted for crimes

authorized or performed by the board of directions or a

managerial official acting within the scope of his employmewnt

in behalf of the corporation.

In order to carry out the clear legislative intent that a cor-

poration be held responsible for its crimes we must look to

other provisions of law enacted by the General Assembly. Code

Ann. §§277-2502 and 27-2529 (as amended), when read together,

provide that the judge fixing sentence shall prescribe a deter-

minate sentence for a specific number of years within the limits

set by law, may probate a noncapital felony sentence upon such

terms as he deems proper, and may impose a fine upon the con-

victed party not to exceed $10,000 (or the fine fixed by law,

whichever is greater). As was said in Southern Railway Co. v.

State, 125 Ga. 287, 289 (54 SE 160) (1906). **While a corpora-

tion may not be imprisoned, it may be fined, and the fine en-

forced by levy on,its property.”

The defendants argue that probation is an act of leniency, and

that under our law probation and payment of a fine cannot be

imposed unless a sentence of confinement can first be imposed

and then suspended. This technical argument leads to “cor-

porate immunity” for serious crimes and “corporate accoun-

tability” for less serious crimes (those for which fines can be im-

posed; e.g., misdemeanors, where the fine shall not exceed

$1000, Code Ann. §27-2506). Unlike the defendants, we do not

consider a $10,000 fine to be an act of leniency. Moreover, it is

illogial to assume that the General Assembly intended for cor-

porations to be held responsible for minor crimes but not

responsible for major ones.

In order to effectuate the clear intent of the General As-

sembly, we find that pursuant to Code §26-803(a) a corporation

can be prosecuted for violating the law, and that a court may

sentence a corporation to serve a term for years (even though

such sentence be incapable of enforcement) and may suspend

that sentence and impose a fine. Code Ann. §§27-2502 and 27-

2529.

A7

(c) The Shepherds filed a motion for discovery praying for an

order compelling the State to disclose Brady materials. Follow-

ing a hearing, the trial court denied said motion. The shepherds

complain that the trial court erred in not conducting an in-

camera inspection of the State’s file and in not sealing the

materials so inspected.

The Shepherds did not make a motion either for an in-camera

inspection or to have the materials so inspected sealed. The pre-

sent enumeration of error is therefore without merit. See Hamby

v. State, 243 Ga. 339, 341 (253 SE2d 759) (1979); McGuire v.

State, 238 Ga. 247, 248 (232 SE2d 243) (1977).

(d) Having reviewed the Shepherds’ remaining enumerations

of error and the record relevant thereto, we hold that each of the

remaining enumerations of error is without merit.

Judgement in 37387 reversed. All the Justices concur, except

Undercofler and Smith, JJ., who dissent to Division l(a) and the

judgment of reversal. Marshall, J., not participating.

Judgment in 37421 and 37422 affirmed in part and reversed in

part. All the Justices concur, except Hill, P.J., and Gregory, J.,

who dissent to Division II(a) and the judgment of reversal.

Marshall, J., not participating.

Judgment in 37473 affirmed. All the Justices concur, except

Undercofler and Smith, JJ., who dissent to Division II(b) and the

judgment of affirmance. Marshall, J., not participating.

A8

37387. STATE v. SHEPHERD CONSTRUCTION COM-

PANY, INC.

et al.

37421, 37422. SHEPHERD CONSTRUCTION COMPANY,

INC.,

et al. v. STATE.

37473. ASHLAND-WARREN, INC. v. STATE.

UNDERCOFLER, Justice, dissenting to division | (a) and the

judgement in Case No. 37387.

I must agree with the trial judge that Code Ann. § 26-2308 (a)

is unconstitutional because facially vague. It makes criminal the

restraint of free and open competition in a transaction with the

State. However, restraint of free and open competition is not

defined and it is not the judiciary’s prerogative to define it and

thereby establish a crime. This is a legislative function and

responsibility. Some respectable authority even questions

whether the phrase is capable of definition. Thus, persons must

guess whether their business practices involve them in a transac-

tion with the State and whether these practices are legitimate or

criminal. Our constitution demands an identifiable offense

before a person can be convicted and incarcerated. The statute

fails to meet that standard.

I am authorized to state that Mr. Justice Smith joins in this

dissent.

A9

In The Supreme Court of Georgia

37387. STATE v. SHEPHERD CONSTRUCTION COM-

PANY, INC., et al.

37421. SHEPHERD CONSTRUCTION COMPANY, INC.,

et al v. STATE.

37422. SHEPHERD CONSTRUCTION COMPANY, INC.,

et al v. STATE.

37473. ASHLAND-WARREN, INC. v. STATE.

GREGORY, Justice, dissenting.

I respectfully dissent to Division II(a) of the majority opi-

nion.

As to Division II(a), the majority opinion holds the State's al-

legation that the offense was unknown until October 20, 1980 is

insufficient to toll the running of the statute of limitations. My

view is that the tolling statute includes that period of time when

the offense is unknown. The statute provides for tolling of the

period of time in which “the person committing the crime or

crimes is unknown .. .”’ Code Ann. § 26-50Xb).

If the crime is unknown the person committing the crime

must necessarily be unknown. It is not the knowledge of a

person as an individual but the knowledge of a person as the of-

fender which relates in a rational way to the tolling of the statue.

I am authorized to state that presiding Justice Hill joins in

this dissent as to Division II(a).

(The dissent to Division II(b) and the judgment of affirmance is

at A30.)

Al0

SUPREME COURT OF GEORGIA

ATLANTA, July 30, 1980

The Honorable Supreme Court met pursuant to adjourn-

ment. The following order was passed:

Shepherd Construction Co., Inc., et al. v. The State

Upon consideration of the Motion for Rehearing filed in this

case, it is ordered that it be hereby denied. All the Justices con-

cur, except Undercofler and Smith, JJ., dissent. Marshall, J.,

not participating.

SUPREME COURT OF THE STATE OF GEORGIA

CLERK‘S OFFICE, ATLANTA

I certify that the above is a true extract from the minutes of

the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

/s/ Joline B. Williams, Clerk

All

SUPREME COURT OF GEORGIA

ATLANTA, July 30, 1981

The Honorable Supreme Court met pursuant to adjourment.

The following order was passed:

Shepherd Construction Co., Inc., et al. v. The State

Upon consideration of the Motion for Rehearing filed in this

case, it is ordered that it be hereby denied. All the Justices con-

cur, except Undercofler and Smith, JJ., dissent. Marshall, J.,

not participating.

SUPREME COURT OF THE STATE OF GEORGIA

CLERK’S OFFICE, ATLANTA

I certify that the above is a true extract from the minutes of

the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

/s/ Joline B. Williams, Clerk

Al2

In The Supreme Court of Georgia

Decided: July 7, 1981

37387. STATE v. SHEPHERD CONSTRUCTION COM-

PANY, INC.

37421, 37422. SHEPHERD CONSTRUCTION COMPANY,

INC. et al. v. STATE.

37473. ASHLAND-WARREN, INC. v. STATE.

Jordan, Chief Justice.

The State of Georgia indicted the Shepherd Construction

Company, Inc., Dan P. Shepherd and J. Harold Shepherd

(hereinafter “The Shepherds”) on seven counts of “conspiracy

in restraint of free and open competition in transactions with

the State” (Code Ann. §26-2308(a)). The indictment charged the

Shepherds with conspiring with certain others ether to prohibit

said others from submitting various road project bids lower

than the Sheperds’ bids or to prohibit the Shepherd Construc-

tion Company, Inc. from submitting various road project bids

lower than the others’ bids. The Shepherds filed a series of

pretrail motions. After holding a hearing, the trial court granted

two of the Shepherd's motions and denied the remainder. The

State appeals the two motions which the trial court granted and

the Shepherds appeal the remaining motions which the trial

court denied.

The State indicted Ashland-Warren, Inc. (hereinafter

Ashland) and two of its officers on four counts of violating

Code Ann. §26-2308(a). Ashland moved to dismiss the indict-

ment as to itself on the ground that a corporation could not be

charged under §26-2308(a) because the statute provides only

punishment by imprisonment. The trial court denied said mo-

tion and Ashland appealed to the Court of Appeals. On the mo-

tion of Ashland, this Court ordered the appeal transferred to

this Court as a companion to the Shepherd appeal because one

of the motions denied by the Shepherd trial court had raised the

same issue as the Ashland motion.

Al3

I. (a) The State argues that the trial court erred in holding

that Code Ann. §26-2308(a) was unconstitutional because over-

broad and facially vague. We agree.

Code Ann. §26-2308(a) provides that “a person who enters

into a contract, combination, or conspiracy in restraint of trade

or in restraint of free and open competition in any transaction

with the state or any agency thereof, whether said transaction be

for goods, materials, or services, shall, upon conviction, be

punished by imprisonment for not less than one nor more than

than five years...”

As defined by the common law, the phrase “restraint of

trade”’ means restraint of competition, Griffin v. Vandegriff, 205

Ga. 288, 293 (53 SE2d 345) (1949); State v. Central of Georgia

Railway Company, 109 Ga. 716 (35 SE 37) (1889); Standard Oil

Company of New Jersey v. U.S. 221 U.S. 1, 39, 55, 57, 59-61

(1910), and, the prohibition against ‘*a conspiracy in restraint of

trade or in restraint of free and open competition” means simp-

ly a prohibition against a conspiracy in unreasonable restraint

of competition.

State of Georgia v. Central of Georgia Railway Company, 109

Ga. at 725; National Society of Professional Engineers v. U.S.,

435 U.S. 679, 687-90 (1977); Northern Pacific Railway Co. v.

U.S., 356 U.S. 1,4,5 (1957); Appalachian Coals, Inc. v. U.S.,

288 U.S. 344, 359-60 (1932).

A statute is overbroad only if said statute “does not aim

specifically at evils within the allowable area of state control

but, on the contrary, sweeps within its ambit other activities

that in ordinary circumstances constitute an exercise of freedom

of speech or of the press.”

Thornhill v. Alabama 310 U.S. 88, 97 (1939).

The first amendment does not protect speech which is “used

in such circumstances and (is) of such a nature as to create a

clear and present danger that it will bring about the substantive

evils that (the state) has a right to prevent.”’ Schenck v. U.S.,

249 U.S. 49, 52 (1918).

In the present case, Code Ann. §26-2308(a) bans only that

speech by which individuals conspe to create an unreasonable

Al4

restraint against competition-that is, only that speech which

constitutes a clear and present danger of a substantive evil

which the state may avoid.

Code Ann. §26-2308(a) is not unconstitutional because

overbroad. /

A criminal statute is unconstitutionally vague if (1) the

statute failed to give full notice to the defendant that his conduct

was forbidden, see Smith v. Goguen, 415 U.S. 566, 577-78

(1973); (2) the statute failed to give fair notice to anyone

(including the defendant) that his conduct was forbidden, see,

Smith v. Goguen, at 572, 578; or (3) the statute (although it does

give fair notice to the defendant) failed to give fair notice to

someone else that his conduct was forbidden. See Young v.

American Mini Theaters, 427 U.S. 50, 58-61 (1975).

A defendant has standing to challenge a statute for failure to

give fair notice to someone else only if (1) the conduct for which

the someone else could be prosecuted under the challenged

statute is expression protected by the First Amendment and (2)

the statute’s deterrent effect against the other person's perform-

ing his protected expressive conduct is both real and substantial.

Young v. American Mini Theaters, 427 U.S. at 59-60. Contra

Parker v. Levy, 417 U.S. 733, 756-7 (1973).

We find that the deterrent effect of Code Ann. §26-2308(a)

against someone else's performing his protected expressive con-

duct is neither real nor substantial. See Bates v. State Bar of

Arizona, 433 U.S. 377, 379-81 (1977).

Accordingly, we hold that the Shepherds are without

standing to challenge Code Ann. §26-2308(a) for failure to give

fair notice to third parties.

The common law definition of the prohibition contained in

Code Ann. §26-2308(a) (unreasonable restraint of competition)

gave the Shepherds more than fair notice that their conduct was

prohibited by said statute. U.S. v. U.S. Gypsum Company, 438

U.S. 422, 438-40 (1977); U.S. v. Brighton Building &

Maintenance Co, 598 F. 2d 1101, 1105 (1979).

Accordingly, we hold that Code Ann. §26-2308(a) is not un-

constitutionally vague as applied to the Shepherds (and, a for-

Al5

tiroi, we also hold that said Code Section is not uncon-

stitutionally vague as applied to everybody).

(b) The State argues that the trial court erred in granting the

Shepherds’ special demurrer to Counts 2 thru 7 of the indict-

ment. Said Counts charged the Shepherds with conspiring with

named individuals “and others” or “and another” to restrain

free and open competition in transactions with state.

An accused is entitled to an indictment perfect in form as well

as substance if he raises the question on special demurrer. See,

State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977). The

“nerfect"’ indictment must either name the alleged “other” con-

spirators or label them as unknown or unindicted. See Martin v.

State, 115 Ga. 255, 256-7, (41 SE 576) (Dictum); U.S. v. Briggs,

514 F.2d 794 (1975). See generally Thompson v. Macon-Bibb

County Hospital Authority, 246 Ga. 777 (273 SE2d 19) (1980).

In the present case, however, the names of the “other” con-

spirators had been given to the Shepherds by the state in the

Sstate’s written response to the Sheperd’s Brady motion.

For this reason, we hold that the trial court erred in granting

the Shepherd's special demurrer to Counts 2 through 7 of the in-

dictment. See, U.S. v. Briggs, 514 F.2d at 800, 805.

Il. (a) The Shepherds enumerate as error the trial court's

denial of their motion to dismiss Count I of the indictment as

barred by the four-year period of limitations in Code Ann. §26-

502(c). The trial court noted the State’s allegation in Count I

that the offense was unknown until October 20, 1980, and, held

that, under Code Ann. §27-601(4), said allegation stated a legal-

ly sufficient ground for tolling the otherwise expired four-year

period of limitation in Code Ann. §26-502(c).

The Shepherds note, however, that, under Code Ann. §26-

503(b), the state’s allegation does not state a legally sufficient

ground for tolling the otherwise expired four-year period of

limitations, and, argue that Code Ann. §26-503(b) impliedly

repealed that part of Code Ann. §27-601(4) which provides that

the period of limitation shall not run so long as the offense is

unknown.

Al6

Code Ann. § 26-502, 503, and 504, effective July 1, 1969,

track the provisions of Code Ann. § 27-601 (Cobb, 838, 842).

Code Ann. § 26-503, however, in tracking that part of Code

Ann. §27-601 which provides that “*[No] limitation shall run so

long as the offender or offense is unknown,” states only that no

limitation shall run so long as “the person committing the crime

or crimes is unknown... .”

Accordingly, we hold that Code Ann. §26-503 impliedly

repealed that part of Code Ann. §27-601 which provides that no

limitation shall run so long as the offense is unknown, and that

the trial court erred in denying the Shepherds’ motion to dismiss

Count I of the indictment. See Ezzard v. State, 229 Ga. 465, 467-

68 (192 SE2d 374) (1972).

(b) The Shepherd Construction Co., Inc. and Ashland-

Warren Inc. argue that their respective trial courts erred in

holding that a corporation could be indicted under Code Ann.

§26-2308(a). We agree and reverse.

“The power to create crimes and to prescribe punishment

therefor is legislative,’ Johnson v. State, 169 Ga. 814, 817 (152

SE2d 76) (1929), and “criminal statutes must be strictly con-

strued against the State... ."” Knight v. State, 243 Ga. 770, 775

(257 SE2d 182) (1979).

Code Ann. § 26-2308(a) provides that a person who enters

into a conspiracy in restraint of free and open competition in

any transactions with the state “shall, upon conviction, be

punished by imprisonment for not less than one nor more than

five years.”

A corporation cannot be indicted under a criminal statute

which provides only corporal punishment (death or imprison-

ment). See, Southern Railway Co. v. State, 125 Ga. 287, 289 (54

SE 160) (1906); State v. Willard, 54 So2d 183, 185 (1951).

Accordingly, we hold that a corporation cannot be inaicted

under Code Ann. § 26-2308(a). See Hill v. State, 53 Ga. 125

(1874).

The State argues, however, that, when construed with Code

Ann. § 27-2529, Code Ann. § 26-2308(a) provides, as lawful

sentences, both imprisonment and a fine, and, that, therefore,

Al7

corporations can be indicted under the latter statute.

Construing Code Ann. § 27-2529 with Code Ann. § 27-2502,

the former statute authorizes a fine, not as a lawful sentence for

a violation of Code Ann. §26-2308(a), but as a condition prece-

dent to a stay of execution of the only lawful sentence provided

for in Code Ann. § 26-2308(a) - imprisonment.

(c) The Shepherds filed a motion for discovery praying for an

order compelling the State to disclose Brady materials. Follow-

ing a hearing, the trial court denied said motion. The Shepherds

complain that the trial court erred in not conducting an in-

camera inspection of the State’s file and in not sealing the

materials so inspected.

The Shepherds did not make a motion either for an in-camera

inspection or to have the materials so inspected sealed. The pre-

sent enumeration of error is therefor without merit. See Hamby

v. State, 243 Ga. 339, 341 (253 SE2d 759) (1979); McGuire v.

State, 238 Ga. 247, 248 (232 SE2d 243) (1977).

(d) Having reviewed the Shepherds’ remaining enumerations

of error and the record relevant thereto, we hold that each of the

remaining enumerations of error is without merit.

Judgment in 37387 reversed. All the Justices concur, except

Undercofler and Smith, JJ., who dissent to Division I(a) and the

judgment of reversal. Marshall, J., not participating.

Judgment in 37421 and 37422 affirmed in part and reversed in

part. All the Justices concur, except Hill, P.J., and Gregory, J.,

who dissent to Divisions II(a) and (b) and the judgment of reversal.

Marshall, J., not participating.

Judgment in 37473 reversed. All the Justices concur, except

Hill, P.J., and Gregory, J., who dissent to Division II(b) and the

judgment of reversal. Marshall, J., not participating.

Al8

37387. STATE v. SHEPHERD CONSTRUCTION COM-

PANY, INC. et al.

37421, 37422. SHEPHERD CONSTRUCTION COMPANY,

INC., et al. v. STATE.

37473. ASHLAND-WARREN, INC. v. STATE.

UNDERCOFLER, Justice, dissenting to division | (a) and

the judgment in Case No. 37387.

I must agree with the trial judge that Code Ann. §26-2308 (a)

is unconstitutional because facially vague. It makes criminal the

restraint of free and open competion in a transaction with the

State. However, restraint of free and open competition is not

defined and it is not the judiciary prerogative to define it and

thereby establish a crime. This is a legislative function and

responsibility. Some respectable authority even questions

whether the phrase is capable of definition. Thus, persons must

guess whether their business practices involve them in a trans-

action with the State and whether these practices are legitimate

or criminal. Our constitution demands an identifiable offense

before a person can be convicted and incarcerated. The statute

fails to meet that standard.

Al9

SUPREME COURT OF GEORGIA

Atlanta, July 23, 1981

The Honorable Supreme Court met pursuant to adjourn-

ment.

The following order was passed:

The State v. Shepherd Construction Co., Inc., et al.

Upon consideration of the Motion for Rehearing filed in this

case, it is ordered that it be hereby denied. All the Justices con-

cur, except Undercofler and Smith, JJ., dissent. Marshall, J.,

not participating.

SUPREME COURT OF THE STATE OF GEORGIA,

Clerk’s Office, Atlanta,

I certify that the above is a true extract from the minutes of

the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

/s/Joline B. Williams, Clerk.

A20

SUPREME COURT OF GEORGIA

Atlanta, August 12, 1981

The Honorable Supreme Court met pursuant to adjourn-

ment.

By Jordan, C.J.

The following direction was given:

THE STATE V. SHEPHERD CONSTRUCTION CO.,

INC., ETAL. . °

Upon consideration of the motion for a stay of this court's

remittitur in order that an appeal or an application for cer-

tiorari may be filed in the Supreme Court of the United States

to obtain a review of this court's judgment rendered in this case

on 7-7-81 such motion is hereby granted, subject to the follow-

ing conditions:

(1) The clerk of this court is directed to withhold the trans-

mittal of such remittitur to the trial court for ninety days from

the date of this court’s judgment.

(2) The clerk of this court is directed to transmit such remit-

titur to the trial court not later than the ninety-fifth day from

the date of this ccurt’s judgment, provided that the clerk shall

continue to withhold the transmittal of such remittitur if the

clerk is notified in writing that an appeal or application for cer-

tiorari has been timely filed in the Supreme Court of the United

States. Upon the timely filing of such appeal or application in

the Supreme Court of the United States, the clerk is directed to

withhold the transmittal of such remittitur until the final dis-

position of the case by that Court.

/s/Robert H. Jordan,

Chief Justice

SUPREME COURT OF THE STATE OF GEORGIA,

Clerk's Office, Atlanta,

Witness my signature and the sail of said court hereto affixed

the day and year last above written.

Clerk

A2l

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

STATE OF GEORGIA

v. : CRIMINAL

INDICTMENT

SHEPHERD CONSTRUCTION

COMPANY, INC., : NO. A 52695

DAN P. SHEPHERD and :

J. HAROLD SHEPHERD

ORDER

The defendants having moved the Court to dismiss the indict-

ment herein on the grounds that Ga. Laws 1968, pp. 1249, 1308

[Ga. Code Ann. § 26-2308(a)j is unconstitutional under both the

Fourteenth Amendment to the United States Constitution and

Article I, Section I, Paragraph I of the Constitution of Georgia

of 1976 (Ga. Code Ann. § 2-101), the Court, having considered

the briefs and argument of counsel, finds that the statute’s term

“conspiracy in restraint of free and open competition” is overly

broad and unconstitutionally vague in that said term has no

meaning at common law, is not defined by common under-

standing and practice and does not apprise the defendants or

the public of the proscribed conduct within the intendment of

the statute.

The Court expresses the belief that the General Assembly, in

passage of the statute, intended to proscribe the conduct alleged

in the indictment but the Court finds the statute to be uncon-

stitutional on its face without application of the statute to the

conduct alleged in the indictment.

The indictment is therefore dismissed.

SO ORDERED this 3rd day of February, 1981, at 8:50 A.M.

/s/FRANK M. ELDRIDGE, JUDGE

SUPERIOR COURT OF FULTON COUNTY,

GEORGIA

A22

IN THE SUPERIOR COURT FOR THE

COUNTY OF FULTON

STATE OF GEORGIA

STATE OF GEORGIA, )

Plaintiff)

a ) INDICTMENT

)

) ~—_NO% A-52695

SHEPHERD CONSTRUCTION _ )

CO., INC., DAN B. SHEPHERD, )

J. HAROLD SHEPHERD, )

Defendants)

ORDER

The Court hereby rules upon all motions filed of record on

February 2, 1981; the Court deems those that were not orally

argued at the time of hearing that oral argument on said motion

was waived and the Court rules based upon the motion and sup-

porting brief:

PLES IN BAR AND MOTION TO DISMISS COUNT I

OF THE INDICTMENT AS BEING OUTSIDE OF

THE APPLICABLE STATUTE OF LIMITATIONS.

The Court denies said motion in that Georgia Laws 1249,

1266 (Ga. Code Ann. §§26-502, 26-503) must be construed in

pari materia with Cobb, 838, 842 (Ga. Code Ann. 27-601, 30

P.C.) and said statutes are not in conflict but are complemen-

tary; it is fundamental to the commencement of the running of a

statute of limitations that there be knowledge of the commission

of a crime by either the victim which is imputable to the state of

knowledge by the state of such commission of a crime;

A23

2.

DEFENDANTS’ DEMURRERS

Paragraphs 1, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,

22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,

and 40 are denied. Paragraphs 4, 5, 6 and 7 set out no violation

of the Federal Constitution or the Georgia Constitution and are

hereby denied.

3.

PLEA ON CERTAIN MATTERS ENUMERATED

BELOW AND MOTION TO QUASH OR DISMISS

THE INDICTMENT

The Court denies demurrers in paragraphs 2 and 5, 6; the

Court denies the motion as to paragraph 4 in that Georgia Laws

1968, pp. 1249, 1308 (Ga. Code Ann. §26-2308(a)) in that the

statute applies to “persons” which includes artificial entities

which may be punished by fine and by an order of restitution

and that it was the intent of the General Assembly to include all

natural and artificial entities within such act; the Court grants

the motion to quash the indictment as prayed in paragraph 3 for

failure to set forth all conspirators in counts 2 through 7 instead

of stating unknown co-conspirators which harmed said defen-

dants in not putting them on notice of the alleged parties to the

conspiracy; :

4.

PLEA IN ABATEMENT REGARDING DEFECTIVE

INDICTMENT DUE TO SUMMARIZATION OF

GRAND JURY WITNESS TESTIMONY, IMPROPER

SELECTION, iMPANELMENT, VOTING AND AT-

TENDANCE OF GRAND JURY AND DUAL

AUTHORITY OF SPECIAL ASSISTANT ATTORNEY

A24

GENERAL

The Court denies each and every motion contained therein.

5.

MOTION TO DISQUALIFY

SPECIAL PROSECUTORS

The Court denies said motion.

6.

DEFENDANTS’ MOTION TO COMPEL STATE TO

FURNISH A TRANSCRIPT OF THE PROCEEDINGS OF

THE FULTON COUNTY GRAND JURY

The Court denies said motion in that said matters are secret

and privileged and the facts and circumstances of this case do

not warrant such discovery.

7.

MOTION FOR PRELIMINARY HEARING

The Court denies said motion and finds that failure to hold a

preliminary hearing is not a violation of any constitutional right

even though it is a critical stage of the investigation because

there was no arrest prior to indictment and that there is no right

of preliminary hearing after an indictment.

MOTIONS TO SEVER COUNTS AND MOTION TO

COMPEL ELECTION OF COUNTS OF THE

INDICTMENT

A25

The Court denies said motions on the grounds that such con-

spiracy on each count are part of a common scheme or design

and a common nature of the conduct within the meaning of

Haisman v. State, 242 Ga. 896, 900(2) (1978); Moment v. State,

No. 60755, Ga. App. (1981).

9.

MOTION FOR INDIVIDUAL VOIR DIRE AND SE-

QUESTRATION OF JURORS DURING VOIR DIRE

The Court, in the exercise of its sound discretion, denies said

motion in that said case has not had such pretrial publicity or

notoriety as to warrant individual voir dire and said individual

voir dire and sequestration of jurors would be disruptive of the

orderly trial of the case and the denial of such motion does not

abridge any rights of the Defendants.

10.

DEFENDANTS’ MOTION FOR DISCOVERY OF

MATTERS RELATING TO THE PRE-INDICTMENT

PHASE OF THE CASE

Said motion is denied.

MOTION FOR DISCOVERY AND TO COMPEL

DISCLOSURE

Said motion is denied and seeks matters outside the ambit of

a “Brady” or “Jenks” motion and beyond the scope of dis-

covery under Georgia Law.

A26

12.

MOTION TO CAUSE WITNESSES TO CONFER

WITH DEFENDANTS’ ATTORNEYS

The Court will order that the Attorney General inform each

witness that the defense counsel have a right to talk to such

witnessdes but that each such witness has a right to refuse to

talk to defense counsel and that the State can not bar such at-

tempt to confer by defense counsel;

13.

REQUEST FOR ADDITIONAL JURY STRIKES

The Court denies said motion in that each defendant is not

hostile to the other and has no conflict with the other defen-

dants.

The Court determines that the grant and denial of the forego-

ing motions are of such grave importance to the State and to the

Defendants in the prosecution of this case that immediate ap-

pellate review is warranted and the Court further certifies that

the issues raised by said motions are of great importance to

other pending litigation and although the court has ruled the

statute upon which said indictment was based is uncon-

stitutionally vague, a reversal of said ruling would put the

foregoing motions in issue again.

SO ORDERED this 3rd day of February, 1981 at 8:45 A.M.

/s/ Frank M. Eldridge, Judge

Fulton Superior Court

Atlanta Judicial Circuit

A27

IN THE SUPREME COURT

STATE OF GEORGIA

SHEPHERD CONSTRUCTION

COMPANY, INC., DAN P.

SHEPHERD, and J. HAROLD

SHEPHERD,

Cross-Appellants,

CASE NUMBERS

37421 and 37422

)

)

)

)

)

)

)

VS. )

)

STATE OF GEORGIA, )

)

)

Cross-Appellee,

STATE OF GEORGIA,

Appellant,

CASE NUMBER

37387

VS.

SHEPHERD CONSTRUCTION

COMPANY, INC., DAN P.

SHEPHERD, and J. HAROLD

SHEPHERD,

ee ed

Appellees.

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Shepherd Construction Company,

Inc., Dan P. Shepherd and J. Harold Shepherd hereby appeal to

the Supreme Court of the United States from the decision, order

and final judgment of the Supreme Court of Georgia entered in

A28

the above-captioned cases on July 7, 1981, and revised July 23,

1981, with rehearing devised on July 23, 1981 in case number

37387 and on July 30, 1981 in case numbers 37421 and 37422.

This appeal is taken pursuant to 28 U.S.C. §1257(2).

This the 21st day of September, 1981.

SCHREEDER, WHEELER /s/ DAVID H. FLINT

& FLINT

1600 Candler Building

Atlanta, Georgia 30043-7501

(404) 681-3450

/s/ WARREN O. WHEELER

Attorneys for Shepherd

Construction Co., Inc.

ARRINGTON, RUBIN, /s/ MARVIN S. ARRINGTON

WINTER, KRISCHER &

GOGER, P.C.

1210 First National Bank Tower

Atlanta, Georgia 30383

(404) 658-9977 /s/ JOHN J. GOGER

Attorneys for Dan P. Shepherd

201 Trust Building /s/ CHARLES H. HYATT

505 North McDonough Street

Decatur, Georgia 30030

(404) 378-3634

212 Trust Building /s/ DAVID R. ROGERS

505 North McDonough Street Attorneys for J. Harold

Decatur, Georgia 30030 Shepherd

(404) 377-041!

A29

CERTIFICATE OF SERVICE

This is to certify that I have this day served counsel for the

opposing party in the foregoing matter and the Attorney

General for the State of Georgia, pursuant to Rule 28(c) of the

Rules of the Supreme Court of the United States, with a copy of

“Notice of Appeal to the Supreme Court of the United States”

by delivering in the United States Mail a copy of the same in a

properly addressed envelope to:

Michael J. Bowers

Attorney General for the State of Georgia

132 State Judicial Building

Atlanta, Georgia 30334

G. Thomas Davis, Esq.

Special Assistant Attorney General

132 State Judicial Building

Atlanta, Georgia 30334

with sufficient postage to assure delivery.

This the 21st day of September, 1981,

/s/ DAVID H. FLINT

Attorney for Shepherd

Construction Co., Inc.

SCHREEDER, WHEELER & FLINT

1600 Candler Building

Atlanta, Georgia 30043-7501

(404) 681-3450

A30

37387. STATE v. SHEPHERD CONSTRUCTION COM-

PANY, INC. et al.

37421, 37422. SHEPHERD CONSTRUCTION COMPANY,

INC. et al. v. STATE

37473. ASHLAND-WARREN, INC. v. STATE

SMITH, Justice dissenting to Division II(b).

I, too, believe that corporations should be accountable under

a criminal bid-rigging statute. However, the determination that

corporations are to be held accountable is for the legislature.

The majority:s holding that the legislature has made such a

determination can only be described as legal fantasy.

Code Ann. §26-2308(a) provides only for corporal punishment

— “imprisonment for not less than one nor more than five

years.” “[I]t is ... well settled that where the only penalty

provided for a criminal offense is a corporal punishment, that is

where an offender can be punished only by death or imprison-

ment, a corporate defendant is not liable to criminal prosecu-

tion. This result proceeds from the impossibility of subjecting

the artificial person of a corporation to a corporal penalty.”

Annot., Corporations Liability to Criminal Prosecution as Af-

fected by Punishment or Penalty Imposed, 80 A.L.R.3d 1220,

1222 (1977); Southern Railway Co. v. State, 125 Ga. 287 (54 SE

160) (1906): State ex rel. Losey v. Willard, 54 So 2d 183 (Fla.

1951); People v. Duncan, 363 Ill. 495, 2 N E 2d 705 (1936); State

ex rel. Kropf v. Gilbert, 213 Wis. 196, 251 N W 478 (1933).

Presumably our legislature was cognizant of an almost univer-

sally recognized legal principle when it enacted Code Ann. §26-

2308. See Brookins v. State, 221 Ga. 181, 190 (144 SE2d 83)

(1965).

I find it inconceivable that Code Ann. §27-2502 and 27-2509

were intended to provide the basic sentence for violation of the

bid-rigging statute. ‘The manifest purpose of Code Ann. §27-

2502 is merely to enforce those other provisions which fix the

punishment for an offense .. ."’ Lackey v. State, 116 Ga. App.

789, 790 (159 SE2d 188)(1967). Code Ann. §27-2529 simply

authorizes the imposition of a fine where the basic sentence has

A3l

been probated. It is obvious that, under this statutory scheme, a

basic sentence, capable of being imposed and probated, must

exist apart from the fine. However, the only lawful sentence

provided in Code Ann. §26-2308 is imprisonment, and, as the

majority recognizes, such a sentence cannot be imposed on a

corporation. Southern Railway Co. v. State, supra. The ma-

jority’s resort to legal fiction (i.e. probation of a sentence which

cannot be imposed, followed by imposition of a fine incident to

the probation) in order to reach a particular result seriously un-

dermines the previously unassailable rule that “criminal statutes

must be strictly construed against the state.” Knight v. The

State, 243 Ga. 770, 775 (257 SE2d 182) (1975).'

Although the plain language of the two statutes should be dis-

positive of the “issue” (Hill v. State, 53 Ga. 125, 127 (1874);

Balkcom v. Heptinstall, 152 Ga. App. 532 (263 SE2d 275)

(1979)), it must also be noted that there is absolutely nothing in

the legislative history of Code Ann. §§27-2502 and 27-2529 to

support the majority’s conclusion that these provisions were in-

tended to provide the basic sentence for violation of the bid-

rigging statute. The two sections were enacted during different

legislative sessions than Code Ann. §26-2803, and the state-

ments of purpose preceding the enactments make no reference

to it.

Manifestly, the majority has chosen to ignore a number of es-

tablished legal principles in Division II(b) of its opinion. I must

respectfully dissent.

‘Even the legal fiction employed by the majority does not stand scrutiny.

Under Code Ann. §27-2502, the authority of the trial court to probate a

sentence is discretionary. The fine authorized by Code Ann. §27-2529 is also

discretionary. Thus, the very existence of a sentence capable of being imposed

against a corporation for violation of Code Ann. §26-2308(a) will, in every

case, depend upon a post facto exercise of discretion by the trial court. This

hardly comports with my understanding of a sentence “prescribed” for an of-

fense. See Johnson v. State, 169 Ga. 814, 817 (182 SE2d 76) (1929).

CERTIFICATE OF SERVICE

This is to certify that I have this day served counsel for the

opposing party in the foregoing matter and the Attorney

General for the State of Georgia, pursuant to Rule 28(c) of the

Rules of the Supreme Court of the United States,with “Jurisdic-

tional Statement” by delivering a copy of the same in a properly

addressed envelope to:

Michael J. Bowers

Attorney General for the State of Georgia

132 State Judicial Building

Atlanta, Georgia 30334

G. Thomas Davis, Esq.

Special Assistant Attorney General

132 State Judicial Building

Atlanta, Georgia 30334

with sufficient postage to assure delivery.

This the Sth day of October, 1981.

/s/DAVID H. FLINT

Attorney for Shepherd

Construction Co., Inc.

SCHREEDER, WHEELER & FLINT

1600 Candler Building

Atlanta, Georgia 30043-7501

(404) 681-3450

Mu 40

8 -Sunrome Court, U.S. }

FILED |

Noy 3 1981

NO. 81-669 ALEXANDER L. STEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

SHEPHERD CONSTRUCTION CO., INC.,

DAN P. SHEPHERD AND J. HAROLD SHEPHERD,

Appellants,

v.

STATE OF GEORGIA,

Appellee.

ON APPEAL FROM THE

SUPREME COURT OF GEORGIA

MOTION TO DISMISS OR TO AFFIRM

132 State Judicial Bldg. Micnae. J. Bowers

Atlanta, Georgia 30334 Attorney General

(404) 656-2704

2000 Cain Tower G. Tuomas Davis

229 Peachtree Street Special Assistant

Atlanta, Georgia 30334 Attorney General

(404) 588-0505 MicHaAkL E. SULLIVAN

Special Assistant

Attorney General

Tuomas D. Watry

Assistant Attorney General

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ..................-. ij

MOTION TO DISMISS OR TO AFFIRM......... 1

QUESTIONS PRESENTED..................00- 1

STATEMENT OF THE CASE..................- 2

A. The Judgment of the Supreme Court of Georgia

is not “Final” for Purposes of Pre-Trial

cc cvcoueesdauteness 4

B. Georgia Laws 1968, p 1249, 1308 [Ga. Code

§ 26-2308(a)] is not Unconstitutionally Vague.. 11

C. Georgia Laws 1968, p. 1249, 1308 [Ga. Code

§ 26-2308(a)] is not Unconstitutionally

Overbroad

D. The Tria! Court was Correct in not Requiring

Oral Argument on Each and Every Motion and

in not Conducting an In-Camera Inspection of

the State’s File When There was no Motion

er SE IIR, occ cccvccscesoncesess 17

ES cdGis ddesed cacdececesrenssocess 19

TABLE OF AUTHORITIES

Cases: ™_

Appalachian Coals, Inc. v. United States,

Is 0660 c6sG0debc 6c evesceecte 14

Ashwander v. Tennessee Valley Authority,

dec nk ne pws tedeeedesnsd ees 9

Berman v. United States, 302 U.S. 211 (1937)........ 10

Brady v. Maryland, 373 U.S. 83 (1963). . ....3, 4, 10, 18

Burton v. United States, 196 U.S. 283 (1905)......... )

California v. Stewart, 384 U.S. 436 (1966)........... 10

Cardinale v. Louisiana, 394 U.S. 437 (1969)......... 9

Construction Labors v. Curry, 371 U.S. 542 (1963)... .7, 8

Cox Broadcasting Corp. v. Cohn,

ee Ae 4, 5, 6, 7, 9, 10

Hamby v. State, 243 Ga. 329, 253 S.E.2d 759 (1979)... 18

Hudson Distributors v. Eli Lilly, 377 U.S. 386 (1964)... 8

Liverpool, N.Y. & P.S.S. Company v. Emigration

Commissioners, 113 U.S. 33 (1885). .............. i)

Mercantile National Bank v. Langdeau,

I <i eb du caunsias dinate sdeee 7,8

Miami Herald Publishing Co. v. Tornillo,

RRR ST Ri is a ae 8

Mills v. Alabama, 384 U.S. 214 (1966).............. 10

New York v. Cathedral Academy, 434 U.S. 125 (1977). 5

Northern Pacific R. Co. v. United States,

ee eine don oo ck pc ebdek eves 12, 14

Parker v. Levy, 417 U.S. 733 (1974)... ............. 11

Parr v. United States, 351 U.S. 513 (1956)........... 10

TABLE OF AUTHORITIES (Continued)

Page

Cases (Continued) :

Radio Station WOW, Inc. v. Johnson,

BD A HP ME va wcdecccdecccncccccsetvees 4,9

Republic Gas Company v. Oklahoma,

eck Kk Geo daeccccecesocceres 9, 10

Screws v. United States, 325 U.S. 91 (1945).......... 15

United States v. Brighton Building and Maintenance

Co., 598 F.2d 1101 (7th Cir. 1979)............... 12

United States v. Flom, 558 F.2d 1179 (5th Cir. 1977)... 12

United States v. General Petroleum Corp.,

33 F.Supp. 95 (D.C.S.D. Calif. 1940)............. 14

United States v. Gillen, 599 F.2d 541 (3th Cir. 1979)... 15

United States v. Harriss, 347 U.S. 612 (1954). ....... 13

United States v. Mazurie, 419 U.S. 544 (1975)........ 11

United States v. Powell, 423 U.S. 87 (1975)........ 14, 15

Village Voice, Inc. v. Rinaldi, 423 U.S. 883 (1975)..... 8

Younger v. Harris, 401 U.S. 37 (1971). ............. 9

Statutes:

Georgia Code § 26-605... ......... cc cece eee ee 16

Georgia Code § 26-2308(a)............-.--0005: Passim

Kah ubiberhieee ccosccessyetesnnieee 13

By es eden cctcccesensccesssoveveses 4, 10

Other Materials:

Note, The Finality Rule For Supreme Court Review Of

State Court Orders, 91 Harv.L.Rev. 1004

ER ccihta 'b<6.6nkes 666 .¢60606nat ot 4, 5, 6,9

NO. 81-669

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

SHEPHERD CONSTRUCTION CO., INC.,

DAN P. SHEPHERD AND J. HAROLD SHEPHERD,

Appellants,

Vv

STATE OF GEORGIA,

Appellee.

ON APPEAL FROM THE

SUPREME COURT OF GEORGIA

MOTION TO DISMISS OR TO AFFIRM

The Appellee respectfully moves the Court to dismiss

the appeal herein or, in the alternative to affirm the judg-

ment of the Supreme Court of Georgia on the grounds that

this Court does not have jurisdiction in that this appeal is

not from a final judgment and does not present substantial

federal questions.

QUESTIONS PRESENTED

1. Whether the judgment appealed from is a final

judgment in that this case has not gone to trial and does

not threaten any important federal policy.

2. Whether Ga. Code § 26-2308(a) which provides that

any person who enters into a contract, combination or

1

2

conspiracy in restraint of trade or in restraint of free and

open competition in a transaction with the State, and

which requires an overt act thereafter is constitutional in

that the term free and open competition, has meaning at

common law and under the facts alleged presented ade-

quate notice to Appellants.

3. Whether the court was correct in not requiring oral

argument on each and every motion and in not conducting

an in-camera inspection of the State’s file when there was

no motion for such an inspection.

STATEMENT OF THE CASE

On November 21, 1980, the Grand Jury of Fulton

County, Georgia, returned an indictment against the

Appellants, Shepherd Construction Co., Inc., Dan P.

Shepherd, and J. Harold Shepherd, charging them collec-

tively with seven counts of conspiracy in restraint of free

and open competition in transactions with the State. The

charged offenses constitute felonies under the provisions

of Ga. Laws 1968, pp. 1249, 1308 [Ga. Code § 26-2308(a)]}.

The gravamen of the indictment is that the Shepherds

conspired with others, named and unnamed, to rig bids on

State Department of Transportation road projects. The

dates of the conspiracies ranged from May, 1975 through

October, 1979.

The Shepherds were arraigned on the described charges

on January 16, 1981, and each entered a plea of not guilty.

Prior to arraignment, they filed numerous motions,

demurrers, pleas, and discovery requests. The trial court

instructed counsel to appear on February 2, 1981 for oral

argument on all of the pending pleadings. In addition, the

trial court set the date for trial for April 6, 1981.

3

Among the pleadings filed by the Shepherds were a

“Special and General Demurrer and Motion to Quash

and/or Dismiss the Indictment” which had as their basis

the contention that Ga. Code § 26-2308(a) is unconstitu-

tionally vague. Also filed were a Motion for Discovery

which resembled a set of interrogatories and Requests for

Production of Documents and a Request for Brady

Materials.

The Siate filed written responses to each of the Shep-

herds’ motions, demurrers, pleas and discovery requests on

January 29, 1981. In its response to a request for informe-

tion potentially governed by Brady v. Maryland, the

State supplied, in writing, a list of persons and corpora-

tions which, to its information and belief, were co-con-

spirators with the Shepherds on each count of the indict-

ment. This information was provided nine weeks in

advance of the trial date set by the Court. The State also

supplied copies of all plea agreements and known prior

convictions of any witnesses it expected to call at trial.

Such material was all the potential Brady material in the

possession of the State.

The scheduled trial did not oceur. The trial court, by

order dated February 3, 1981, found that Ga. Code § 26-

2308(a) is unconstitutional on its face without application

of the statute to the conduct alleged in the indictment. By

further order of the same date, the trial court ruled on the

other motions, demurrers, pleas and discovery requests

previously filed by the Shepherds.

The State appealed the decision holding the statute

unconstitutional to the Georgia Supreme Court. The Shep-

herds brought a cross-appeal raising a number of issues

including the trial court’s ruling denying further dis-

covery on the motions pending before it and denying oral

4

argument on some of the motions, The Supreme Court of

Georgia held that Ga. Code § 26-2308(a) is not unconsti-

tutionally vague or overbroad in an opinion issued on

July 7, 1981. As to the Shepherds’ request for Brady ma-

terials, the Georgia Supreme Court held that the Shep-

herds had not made a motion either for an in-camera

inspection or to have the materials so inspected sealed.

The Court reasoned that under Georgia law, having made

no such motion, the Shepherds were not entitled to an

independent inspection of the State’s file by the trial

judge. As to the denial of oral argument on some of the

motions, the court simply noted that such an enumeration

of error was without merit. The Shepherds had not been

able to cite any authority to support their argument on

the enumeration.

A. THE JUDGMENT OF THE SUPREME COURT

OF GEORGIA IS NOT “FINAL” FOR PUR-

POSES OF PRE-TRIAL REVIEW IN THIS

COURT.

The State agrees that the preliminary issue for this

Court’s consideration is whether the case presents for re-

view a final judgment in accordance with 28 U.S.C. §

1257(2). Likewise, the State recognizes that the Court has

tended to give a practica! or pragmatic construction to the

finality requirement. Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945). This flexibility is not without bounds,

however, and is just as importantly limited by considera-

tions of judicial economy and comity. Cor Broadcasting

Corp. v. Cohn, 420 U.S. 469 (1975). See, Note, The Finality

Rule For Supreme Court Review Of State Court Orders,

91 Harv.L.Rev. 1004 (1978).

This Court’s most comprehensive discussion of the

concept of finality, the exceptions to that concept, as well

5

as the limitations upon those exceptions, appears in Cor

Broadcasting Corp. v. Cohn, supra. In Coz, the Court

categorized the exceptions to the finality rule thus far

recognized and consolidated additional cases into a newly

articulated fourth exception. As will be discussed, it is

clearly only this fourth category of cases which relates to

the case at bar.

The first of the Coz categories includes cases in which

the state court decision on the federal question would be

conclusive on that question, that is, the outcome of any

later proceedings was pre-ordained due to the effect that

the federal question determination had on the remaining

issues in the case. For example, this exception would

apply where defendants have no defense to the action and

liability is therefore concluded by the state court decision

on the federal question. See, Note, 91 Harv.L.Rev., at

1017, n. 71, cases cited. This category clearly does not

apply to the case at bar as a determination in the state

courts that a state criminal statute is constitutionally

sound has not here concluded the issue of criminal liabili-

ty. The Shepherds have not been tried, have not conceded

criminal liability, and might yet prevail on the factual

question of guilt.

The second category of cases in Coz is similarly inappli-

cable, as it includes cases in which the federal question

will certainly survive for later review regardless of the

outcome of further proceedings, absent settlement. Coz,

supra, 420 U.S., at 480, 481. See, New York v. Cathedral

Academy, 434 U.S. 125 (1977). Since acquittal remains a

possible outcome at trial in the case at bar, this category

does not apply.

The third category of Cox cases are those in which for

one reason or another later review of the federal question

6

cannot be had, as where applicable procedural laws guaran-

tee that the question would not be later presented by the

parties to the Court. Coz, supra, 420 U.S., at 481, 482. It

has been noted that this category inevitably applies only

to situations in which a state is for procedural or other

reasons barred from seeking review of certain judicial

determinations. See, Note, 91 Harv.L.Rev. at 1022, 1023.

It could not apply to the Shepherds, who, if convicted,

could certainly present the same question to the Court in

a post-conviction appeal, along with other federal and

non-federal questions which may have arisen in the

interim at trial.

Therefore, it is evident that the only remaining category

of cases from Coz to be considered is the fourth category.

The elements of that class of cases which the Court deems

sufficient to justify an exception to the finality rule are:

(1) there is a final decision on the federal question in the

state court of last resort; (2) the party seeking review in

the Supreme Court might prevail on the merits or other

grounds in further proceedings below, and therefore the

federal question might not be preserved for later deter-

mination in this Court; (3) a reversal of the state court

decision on the federal question would not simply control

further proceedings below, but would actually preclude

them; and (4) refusal to immediately review the federal

question would leave standing a State Supreme Court

decision on that question which would threaten to serious-

ly erode an important federal policy until the Court

eventually gets another opportunity elsewhere to review

the question. Coz, supra, 420 U.S., at 482, et seq.

The first three prongs of this test would clearly apply to

the case at bar. The Georgia Supreme Court has issued a

final decision that Ga. Code § 26-2308(a) is constitu-

7

tionally sound (although Appellants have yet to be tried

thereunder), a reversal on that question would preclude

any further proceedings on the indictments, and Appel-

lants might well prevail on other grounds in further pro-

ceedings below, thereby rendering later review of the

federal question unnecessary.

The key question regarding the applicability of the

fourth class of Cox cases to the case at bar is therefore

whether this Court’s refusal to review the constitutionality

of Ga. Code § 26-2308(a), prior to Appellants’ trial,

would leave standing a state court decision which would

threaten to seriously erode an important federal policy.

In order to answer this question, the Court must first

decide two preliminary questions: (1) what, if any, im-

portant federal policy is involved; and (2) does the de-

cision of the Georgia Supreme Court below threaten to

erode the policy, if left standing?

The Court in Cox answered the first question only by

way of example, and provided no clear definition. See,

Note, 91 Harv.L.Rev., at 1025. In Construction Labors v.

Curry, 371 U.S. 542 (1963), the state court decision in-

volved a finding of state jurisdiction over a labor dispute

(upholding an injunction) in a manner which in the ab-

sence of immediate review ‘‘. . . would seriously erode the

national labor policy . . .” of N.L.R.B. preemption of

jurisdiction over labor disputes. 371 U.S., at 550 (em-

phasis added). The Court also noted that the union had .\o0

defense to the action on the merits. 420 U.S., at 483.

Therefore, Construction Labors could have been treated as

a category I case.

In Mercantile National Bank v. Langdeau, 371 U.S. 555

(1963), also cited by the Cor majority as an example of a

category IV case, the important federal policy noted was

8

that of federal venue statutes which served to determine

prior to trial in which state court a case should be tried.

Finally, Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241 (1974), involved a state court decision, which if

left standing unreviewed, the Court noted would certainly

“further harm the operation of a free press’.”” 420

U.S., at 484, 485, and n. 12 (emphasis added). See also,

Village Voice, Inc. v. Rinaldi, 423 U.S. 883 (1975) (Doug-

las, J., dissenting from denial of certiorari).

Using these examples, the question is what such impor-

tant federal policy is threatened with erosion by the

Georgia Supreme Court’s finding that Ga. Code § 26-

2308(a) is constitutionally sound? That section (as applied

by the indictment in this case) provides that “[a] person

who enters into a... conspiracy in restraint of trade or

in restraint of free and open competition in any transac-

tion with the State or any agency thereof...” is guilty

of a felony. (Ga. Laws 1968, p. 1249, 1308.)

There is certainly no “important federal policy’”’ which

favors or protects those who conspire in restraint of trade

or in restraint of free and open competition. Likewise,

_ there is no federal policy which favors restraint of trade

or restraint of free and open competition, in whatever

manner accomplished.

To the contrary, unlike Construction. Labors, supra,

Mercantiie National Bank, supra, and Miami Herald

Publishing Company, supra, the only relevant important

federal policy, that of the federal antitrust statutes, is in

fact strengthened and served by the Georgia Supreme

Court’s decision, if affected at all. See generally, Hudson

Distributors v. Eli Lilly, 377 U.S. 386 (1964). In Miami

Herald Publishing Company, supra, the free press in

Florida would have been ‘“‘chilled” by the state court

decision, regardless of which party prevailed on the

merits. In the case at bar, it is only those who ‘‘conspire

.. . in restraint of trade or in restraint of free and open

competition .. .”’ in unscrupulous dealings with the State,

who are “chilled” and this.type of chilling comports with

important federal policy; it certainly does not erode it.

As noted above, just as pragmatism and practicality

created the Cox exception to the finality rule, so should

they also limit the expansion of exceptions to that rule. It

has been noted that there are several policy reasons for

avoiding limitless expansion of the exceptions to the

finality rule, principle amongst which are considerations

of judicial economy and comity. Republic Gas Company v.

Oklahoma, 334 U.S. 62, 67 (1948); Radio Station WOW,

Inc. v. Johnson, supra. Cf. Younger v. Harris, 401 U.S. 37

(1971). See, Note, 91 Harv.L.Rev., at pp. 1006, 1013,

1019, 1021, 1026.

Further, it has long been recognized that courts should

(1) decide appeals on the narrowest possible grounds, and

(2) avoid deciding cases on federal constitutional grounds

when non-federal state grounds may arise upon trial.

Burton v. United States, 196 U.S. 283, 295 (1905); Liver-

pool, N.Y. & P.S.S. Company v. Emigration Commissioners,

113 U.S. 33, 39 (1885); Ashwander v. Tennessee Valley

Authority, 297 U.S. 288 (1936) (Brandeis, J., concurring) ;

Republic Gas Company, supra; Cardinale v. Louisiana,

394 U.S. 437, 439 (1969). Such opportunities to later

review this case on narrower grounds are all the more

likely to arise in this action which has not yet involved

any trial on the merits.

The civil cases cited in Coz, supra, are all of the nature

in which additional federal constitutional questions were

extremely unlikely to arise after review and trial. In

10

criminal actions such as the case at bar, this cannot so

readily be assumed, it in fact being likely upon possible

conviction there would be raised numerous additional

federal constitutional questions eventually needing re-

view. In that after possible conviction both these addi-

tional federal questions and narrower state law questions

will likely appear, both judicial economy and comity

would be best served by this Court’s refusal to review the

question now raised prior to a trial on the merits. Republic

Natural Gas, supra, 334 U.S., at 70-72. Perhaps this is the

reason that with three exceptions, the cases cited through-

out Coz are civil cases. In the three criminal cases cited,

other considerations controlled the Court’s decisions,

such as the nonreviewability issue in California v. Stewart,

384 U.S. 436, 498 (1966), the lack of any remaining defense

in Mills v. Alabama, 384 U.S. 214 (1966), ard the certain

survival of the federal issue in Brady v. Maryland, 373

U.S. 83 (1963).

None of these features exist in this case, and for this

reason the State submits that the normal rule of finality

applied to criminal cases should apply here, i.e., criminal

constitutional questions are normally considered final

only when sentence is imposed. Berman v. United States,

302 U.S. 211, 212 (1937); Parr v. United States, 351 U.S.

513 (1956).

Therefore, since there is no important federal policy

which the decision below threatens to erode, and due

further to the likelihood that other federal constitutional

questions and narrower state law questions may arise

from a possible conviction in further proceedings, judicial

economy and comity would best be served by the Court’s

refusal to find the judgment of the Supreme Court of

Georgia to be final. Coz, supra, and 28 U.S.C. § 1257(2).

11

B. GEORGIA LAWS 1968, P. 1249, 1308 (GA. CODE

§ 26-2308(a)] IS NOT UNCONSTITUTIONALLY

VAGUE.

The elementary concern with any ii. statute

inust be whether those to whom the statute is directed can

understand it sufficiently to conform their behavior ac-

cordingly. The Supreme Court of Georgia held that Ga.

Code § 26-2308(a) and its prohibition “gave the Shep-

herds more than fair notice that their conduct was pro-

hibited by said statute.” (A-3.) Finding that the Shep-

herds were forewarned by the statute, the Supreme Court

of Georgia held that Ga. Code § 26-2308(a) is not uncon-

stitutionally vague.

Because the Shepherds had more than fair notice that

their conduct was prohibited by the statute, the decisions

of this Court vitiate their appeal on this ground. “One to

whose conduct a statute clearly applies may not success-

fully challenge it for vagueness.” Parker v. Levy, 417 U.S.

733, 755-756 (1974). A statute was not held void for vague-

ness when the person challenging it had sufficient warn-

ing that his own conduct was unlawful. United States v.

Mazurie, 419 U.S. 544, 553 (1975).

The Shepherds did not challenge the Georgia statute

on First Amendment grounds. “It is well established that

vagueness challenges to statutes which do not involve

First Amendment freedoms must be examined in the light

of the facts of the case at hand.” United Slates v. Mazurie,

supra, at 550.

The Shepherds transact substantial business with the

State of Georgia. They assert: ‘““The Company works

mostly on projects for the Georgia Department of Trans-

portation.” (Page 3 of Appellants’ brief.) For them to

contend that they did not realize that it would be for-

12

bidden to enter a conspiracy to predetermine, among the

conspirators, the low bidder on State road projects, com-

mitting thereafter an overt act in furtherance of the con-

spiracy, insults ordinary intelligence. Such activity is

conclusively presumed illegal without inquiry as to the

reasonableness of it or the alleged business justification

for it.

Justice Black defined the doctrine of per se illegality in

Northern Pacific R. Co. v. United States, 356 U.S. 1, 4, and

5 (1958): “. .. there are certain agreements or practices

which because of their pernicious effect on competition

and lack of any redeeming virtue are conclusively pre-

sumed to be unreasonable and therefore illegal without

elaborate inquiry as to the precise harm they have caused

or the business excuse for their use. . .. Among the prac-

tices which the courts have heretofore deemed to be un-

lawful in and of themselves are price fixing. . . .”” United

States v. Flom, 558 F.2d 1179, 1183 (Sth Cir. 1977) holds:

“Conspiracies between firms to submit collusive, non-

competitive, rigged bids are per se violations of the stat-

ute... . An agreement that one company would not sub-

mit a bid lower than another is price fixing of the simplest

kind and is a per se violation.” United States v. Brighton

Building and Maintenance Company, 598 F.2d 1101, 1106

(7th Cir. 1979): “. .. It is as if the Sherman Act read:

‘An agreement to rig bids is illegal’.”’

Georgia Code § 26-2308(a) demands “free and open

competition” in transactions with the State. The statute

provides:

“A person who enters into a contract, combination,

or conspiracy in restraint of trade or in restraint of

free and open competition in any transaction with the

State or any agency thereof, whether said transaction

13

be for goods, materials, or services, shall, upon con-

viction, be punished by imprisonment for not less

than one nor more than five years. The crime of con-

spiracy in restraint of free and open competition in

transactions with the State shall be complete when

the contract, combination, or conspiracy is effected,

and an overt act in furtherance thereof has been

committed.” (Emphasis added.)

The first sentence of the Sherman Act, 15 U.S.C. § 1,

states: “Every contract, combination in the form of trust

or otherwise, or conspiracy, in restraint of trade or com:

merce among the several States, or with foreign nations,

is declared to be illegal. . . .”” (Emphasis added.)

Georgia Code § 26-2308(a) is more stringent than the

Sherman Act because:

(1) it requires that the transaction be one with the

State; and

(2) it requires that an overt act in furtherance of the

conspiracy be committed.

The gravamen of the Shepherds’ attack throughout has

been that they cannot understand what a conspiracy in

restraint of free and open competition is. The Constitu-

tion does not require a precise statutory definition for

every essential term used in a statute, but merely that the

terms used have a meaning which would give a person of

ordinary intelligence fair notice that his conduct is for-

bidden by the statute. United States v. Harriss, 347 U.S.

612 (1954).

Statutes like the Sherman Act or Ga. Code § 26-2308(a)

must inherently be to at least some degree flexible, general

and adaptable. “As a charter of freedom, the Act [Sher-

man Act] has a generality and adaptability comparable

to that found to be desirable in constitutional provisions.

It does not go into detailed definitions which might either

14

work injury to legitimate enterprise or through particu-

larization defeat its purposes by providing loopholes for

escape.”” Appalachian Coals Inc. v. U.S., 288 U.S. 344,

359-60 (1933).

Justice Black appropriately described the purpose of

the Act in Northern Pacific R. Co. v. United States, supra,

at 4, 5 (1957): “The Sherman Act was designed to be a

comprehensive charter of economic liberty aimed at pre-

serving free and unfettered competition as the rule of

trade.” (Emphasis added.)

To conspire to “restrain trade’ (Sherman Act) or to

conspire to “restrain trade” or ‘‘restrain free and open

competition in any transaction with the State’? means

simply that the charter of economic liberty, suggested by

Justice Black, has been violated.

The phrase “free and open competition’? has been

judicially used in the context of being an established

national policy. United States v. General Petroleum Cor-

poration, 33 F.Supp. 95, 97 (D.C.S.D. Calif. 1940) cited as

a basis for its decision: ‘‘. . . the established national policy

of prohibiting or treating as illegal all contracts or combi-

nation of individuals or corporations substantially restric-

tive of free competition. . . .”” (Emphasis added.)

The Shepherds have strained to inject doubt as to the

meaning of words where no doubt would be felt by the

normal reader. This Court refused to indulge in such

straining in United States v. Powell, 423 U.S. 87 (1975),

and should refuse here. This Court, reversing the Court of

Appeals, held a federal firearms statute constitutional by

examining it in light of the facts of the case. ‘While

doubts as to the applicability of the language in marginal

fact situations may be conceived, we think that the statute

gave respondent adequate warning that her mailing of a

15

22-inch-long sawed-off shotgun was a criminal offense.”

Powell, supra, at p. 93.

Construction firms and individuals who transact busi-

ness with a State, its citizens and taxpayers are peculiarly

situated. The unique situation of those who aspire to do

business with a State, together with the peculiar nature of

the offense charged, render of themselves sufficient con-

stitutional warning of proscribed conduct. “[Tjhe argu-

ment of vagueness, to warn men of their conduct, ignores

the nature of the criminal act itself and the notice neces-

sarily given from this.”” Screws v. United States, 325 U.S.

91, 129 (1945).

How could the Shepherds know that their conspiracies

to rig bids and fix prices would restrain free and open com-

petition? They could know so because such activity is

per se illegal and, as stated in United States v. Gillen, 599

F.2d 541, 544 (8rd Cir. 1979): “Price-fixing is an area of

the law in which people can or ought to be able to predict

the legal consequences of their actions. Price fixers do not

even approach ‘the gray zone of socially acceptable and

economically justifiable business conduct... .’ ”

As in Gillen, the Shepherds knew full well or should

have known the legal consequences of conspiring as they

did. The Supreme Court of Georgia found them more than

fairly warned.

C. GEORGIA LAWS 1968, P. 1249, 1308 [GA. CODE

§ 26-2308(a)] IS NOT UNCONSTITUTIONALLY

OVERBROAD.

The Shepherds argue that the statute allows punish-

ment based solely on the content of their speech. Their

argument ignores:

16

(1) that in the trial court, they did not challenge the

statute on First Amendment grounds; and

(2) that the statute expressly requires as an element of

the offense the commission of an overt act in furtherance

of the conspiracy.

Georgia Code § 26-2308(a) does not proscribe speech. It

proscribes a defined conspiracy but only after an overt

act in furtherance of the conspiracy has been committed.

The Shepherds’ argument that the statute condemns

constitutionally protected commercial speech ignores the

overt act requirement. Requiring the overt act as an ele-

ment of the offense removes Ga. Code § 26-2308(a) from

overbreadth concerns. Because of the requirement, the

prohibition of the statute does not sweep within its ainbit

activities that in ordinary circumstances constitute an

exercise of freedom of speech or of the press. The Shep-

herds neglect to argue how the condemning of a conspiracy

with an overt act in furtherance thereof is condemning

the exercise of freedom of speech.

The good faith flow of truthful and legitimate commer-

cial information is not threatened by a statute which

proscribes activities only after an overt act toward the

commission of the crime is committed. Certainly, this

Court has never regarded the Sherman Act, which has no

overt act requirement, as unconstitutionally overbroad.

The Shepherds argue that there is no proof that they

intended to violate the statute. Under Georgia law, inten-

tion is a question of fact reserved for the trier of fact, Ga.

Code § 26-605. The Shepherds have not yet been tried

and the State has not yet been afforded the opportunity

of proving that their activities were intended and pro-

scribed.

17

D. THE TRIAL COURT WAS CORRECT IN NOT

REQUIRING ORAL ARGUMENT ON EACH

AND EVERY MOTION AND IN NOT CON-

DUCTING AN IN-CAMERA INSPECTION OF

THE STATE’S FILE WHEN THERE WAS NO

MOTION FOR SUCH AN INSPECTION.

Under this heading, the Shepherds make the novel

argument that apparently the law requires a superior

court judge to have oral argument on all pre-trial motions

filed by a criminal defendant. It may be noted that the

Shepherds have cited no authority to support that proposi-

tion.

As the record below discloses, the Shepherds filed

numerous pre-trial motions and pleas, many of which

were duplicitous, or to some extent over-lapping. The

Shepherds in addition filed briefs attempting to support

their motions and pleas and the State filed responsive

briefs. In those instances where the Shepherds made

factual allegations, usually unsupported even by verifica-

tion, the State replied with a verified response. In short,

the trial court had before it full argument on each of the

questions it had to decide.

There is no basis for the statement in Shepherds’

Jurisdictional Statement, p. 21, that the court gave “no

consideration” to most of their motions and filings. From a

review of the orders entered by the court, the opposite

appears to be the case.

Next the Shepherds contend that the trial court erred

by denying their ‘Motion for Discovery.” At the outset

on this point, an inaccuracy asserted by the Shepherds

needs to be corrected. Appellants state that at the time

their motion was heard before the trial court, they had

18

received from the State only a list of witnesses and a

statement that Brady material would be supplied when

and if discovered. To the contrary, prior to the hearing

the State furnished to the Shepherds, in response to their

Brady request, plea agreements and known prior con-

victions of any witnesses it expected to call at trial. Said

information represented all the material in the possession

of the State which the State deemed to be favorable to

the accused on the questions of guilt or innocence.

The Shepherds never moved the trial court for an in

camera review as was noted by the Georgia Supreme Court

at A-7. In such a situation, the trial court is under no

duty to conduct such an inspection. Hamby v. State, 243

Ga. 339, 253 S.E.2d 759 (1979).

The “Motion for Discovery” as filed by the Shepherds

was more in the nature of a set of interrogatories and re-

quest for production of documents, and was clearly far

beyond the scope of the requirements of Brady v. Mary-

land, supra. The Supreme Court was correct in deciding

the matter as it did.

19

CONCLUSION

For the reasons stated herein, this appeal should be

either dismissed or affirmed.

Respectfully submitted,

132 State Judicial Bldg. /s/ Micuae. J. Bowers

Atlanta, Georgia 30334

(404) 636-2704 Attorney General

aoe bmi 4 ue /s/ G. Tuomas Davis

a Special Assistant

ro 30303 Attorney General

/s/ Micuakt E. SULLIVAN

Special Assistant

Attorney General

/s/ Tuomas D. Watry

Assistant Attorney General

20

CERTIFICATE OF SERVICE

This is to certify that I have this day served counsel for

the opposing parties in the foregoing matter, pursuant to

Rule 28(c) of the Rules of the Supreme Court of the

United States, with copies of ‘Motion to Dismiss or to

Affirm” by delivering copies of the same in a properly

addressed envelope to:

David H. Flint, Esq.

Warren O. Wheeler, Esq.

Mary Jo Workman, Esq.

1600 Candler Building

Atlanta, Georgia 30043-7501

John J. Goger, Esq.

1210 First National Bank Tower

Atlanta, Georgia 30383

Charles H. Hyatt, Esq.

201 Trust Building

505 North McDonough Street

Decatur, Georgia 30030

David R. Rogers, Esq.

212 Trust Building

505 North McDonough Street

Decatur, Georgia 30030,

with sufficient postage for first class delivery.

This 2nd day of November, 1981.

/s/ G. Tuomas Davis

Special Assistant

Attorney General

2000 Cain Tower

229 Peachtree Street, N.E.

Atlanta, Georgia 30303

(404) 588-0505