# Reply Brief — Burbridge v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0380%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1967
- **Citation:** 386 U.S. 1031

## Text

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Table of Authorities Cited

| | ; Cases - Pages
Bouie v. South Carolina, 378 U.S. 347 (1964)............ . 2
Dunn v. United States, 284 U.S. 390 (1982)...+..... Gees eee
People v. Kerrick, 86 C.A. 542, 261 P. 156-1987}. ae
Pollard v. United States, 352 U.S. $54 (1957)....... leone
Raley v. Ohio, 360 U.S. 423 (1959)....... esis cela
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California Penal Code: Bre ey = a
Section 407 ...... kaevasdoeis Aek Cah eee tics . “3
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No. 875

THomas N. BURBRIDGE, az KowaAtsxt,
CaRoLyN Muuien, Susan Cioxe, Mar- |
cor LIEBERMAN, _Kennetu -S. ‘KING,
Rosert H. Jonnson, Ricnarp H. MrxKe-
SELL, ALLEN W. JOHNSON and EstHER M.

| JOHNSON, —

_ Petitioners,
va. * |

THE PEOPLE OF THE STATE OF CALIFORNIA,

cea fiat

REPLY TO OPPOSITION TO |
~ © PETITION FOR WRITS OF CERTIORARI

The opposition 6f Respondent fails completely to
come to grips with any of the main issues raised in
the Petition. Ags ccouucsck argument seems to be

_ that because: 3

1. Petitioners’ ‘coninde | in sis opinion of Respond-
ent, was blatant and outrageous and — :

2

2 Petitioners apparently eae arrest ;
therefore, ;

3. The validi: + of the statutes under which. they.
_ were charged an

4. The propriety of the. methods by which ‘en

_. were convicted are not of proper concern to this Court.
' It is probably enough to say that this unique conten- —
tion, if accepted, would destroy the concept of due
process ahd the whole idea of judge-made law and

it would, of- Course, | have made unnecessary and impos-
sible all of this Court’s. prior determinations i in ejvil.
‘rights and criminal cases. But with specific reference

to this case, petitioners again ‘draw the Court's atten-
tion to the following: .

1. Respondent has not met Petitioners’ EN
3 contained essentially on pages 12 and 13 and 17 and 18
of the Petition that they have been convicted of doing
a “lawful act” in violating § 407 and, apparently, in
- continuing conduct identical both inside and outside ~
the ‘premisés, while at the same time they have been

‘doing the same thing. These convictions are either
evidence of inconsistent verdicts, ef. Dunn v. United
States, 284 U.S. 390 (1982), of the invalidity of § 407,

ofa: denial of due process. in ‘prosecuting on incon-’

- sistent ‘counts or-of some variation of the doctrine of
consent, Cf. Raley v. Ohio, 360 U.S. 423 (1959).

2, Respondenj has not-contested the applicability
of Bowe v. South Carolina, 378 U.S. 347 (1964) to
this case. The doctrine of. trespass ab initio is the sole

convicted offen “‘unlawful act” in violating § 602; for .

: ‘3

‘sia for sinetidiiod: the dion and euiliine
in this case, and without: more, Respondent’s conces-
sion on this point would seem to require reversal.

3. People v. Kerrick, 86 C.A. 542,.261 P. 756
(1927), cited by Respondent as sustaining § 407, is a
_ homicide case and it is clearly digtinguishable in the _
numberof people involved, in the result of the activi-
ties and in the conduct of the defendant. The case
did not involve conflicting convictions for “lawful”
and:“unlawful” activities and it. was, of: course, de-
cided in an entirely different constitutional climate.

4. In case it be thought that Respondent i is making
_ some sort. of mute argument of mootness arising from |
the ‘commutation of Doctor Burbridge’s sentence, it.

should be:noted-that this commutation is not a pardon.

- and does not remove the conviction from Doctor Bur-

bridge’s record. Of. Pollard v. United States, 352 U.S.
354 (1957). Of course, the sentences of the other, _

younger petitioners have not been served or commuted
and their convictions also. still stand to mar. their

records with all that.a criminal conviction implies for:

future activities, employment a chads
_ Dated, San Francisco, California,
April 24, 1967. | |
Respectfully submitted,
. SEYMOUR FARBER,
‘ign 7 HARTLY FLEISCHMANN,
oe ' Attorneys for Petitioners.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0380%3A5. Public record. Not legal advice.