Brief for the Respondents in Opposition — Benson v. Rich

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ed ae ae 2 IN tHe " ye

SUPREME CovRT OF THE UNI ITED STATES

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MICHAEL. BENSO> JUNE TRACY, EDDIE BROWN

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VS . : ee

JOSEPH RICH, JACK JOHNSON, CHRIS D1GREGORIO |

EDWARD'S. (“IKE’)-MERRY, and - » --: >

oe ae . ,RICHARD KAUZEARIE, .. _

Respondents. ° :

_ i. ; 3 . 7

| _BRIEF OF RESPONDENT JOSEPH RICH, IN OPPOSI.

coe _ TION TO PETITION FOR A WRIT. OF CERTIORARI TO

= THE TENTH CIRCUIT COURT OF. APPEALS. °

te Soles . a JAMES E. SPERLIN

‘ ‘Kewnetn §£.. H. ARRIG y 7

’ Post: Office Box 3168

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TABLE OF CONTENTS -

Opinions NN iccstcwncnacee spun ee pesubovauies capslietcanbecuaicaea 1

Jurisdiction 22... eee! Leencritiea a aeiesecaeatas ]

“Questions Presented — 0.0.2.0... Sheard vem Reka Seine

| Statutes Involved -................... site chido ncaa a

Statement of the Case _...... PME SR CNN 4

Reasons for Denial of the Wr it ss sepucnapiialllliccs-cccmaroaieelonctdads 7

I. The Decision Below in “No Won’ Conflicts with

Other Courts of’ Appeals on the Issue of Im-

CD oe eacenvereeet Ldssliisieoceisnaeneuneieceles 7

II. The Decision Below Did Not Decide an Im-.

a of Federal Law Which Has Not

_ Been, butShould Be, Settled by This Court _... 10

Ill. The Decision Below Is Not’ in Conflict with: |

WOOD Oi ID coca ee 10

IV. The Decision by the Court of Aaieiie Does Not

Conflict with Recent Decisions of This Court

Concerning Free Exercise of Expr ession Reyeavabeues 1]

Conclusion tate ae a pir eon aes esac Rare

Index of Citations

CasksS _

Adderly.v. State of Florida, 385 U.S. 39 (1966) 0. 12

Amalgamated Food Employees Union Local 590. v:

Logan Valley, Inc., 391 U.S. 308 (1968) ........... AEDRACS 12

Bachellar v. ‘Maryland, 397 U.S. 564 §:. } Rn eter 13

Barr v. Matteo, 360 U.S. 564, 572 (1959) 2 a ae

~ Bauers v. Heisel. 3rd Cir.. 361 F.2d 581 (1966)... 8,9. 10

Bradley v. Fisher; 13 Wall. 335, 80 U.S. 335, 20 L.Ed.

646 (1872) _.............. ba sereesPatheeleaideis sence se os oe

¥

"Jennings v. Nestor, 7th Cir., 217 F.2d 153

Kenney Vv. Fox, 6th Cir., 232 F.2d 288 (1956) Ne 10 <>

I INDEX

Carroll v. President and Commissioners ef Princess

Anne, 393 U.S. 175 (1968) 2: - 13.

Cawley v. Warren, 7th Cir., 216 F.2d 74 (1954) Sintageateenied 9, 10

Cohen v. California, 403 U.S. 15 2) .<.:.;*........ eg

. Gregaire v. Biddle, 2d Cir., 177 F.2d 579 (1949)... er

Hurley v. Hinckley, D.C. Mass. , 304 F.Supp. 704 (1969),

aff'd 396 U.S. 277 (1970) ................ soa ‘12

Kenney v. Killian, D.C.W.D: Mich., 133 F.Supp. ‘571

(1955), aff'd Kenney v. Fox, 6th Cir., 232. F.2d 288

SDE sicocisecionves-veseabpeicsanlaitcieet ah Pecateaias Schcctesaeek adineeseeumibcgbieancdiccene 8,9

Kostal v. Stoner, 10th Cir., 292 F.2d 492 (1961) ........... 8,10

Larson v. Domestic and Foreign Corp., 337 US. 682

[i eRe * ESpRE e Ot Ce Ene eStore 9

Lewis v. Brautigam, 5th Cir., 227 F.2d 124 (1955) p Sabet . 8,9.

Monroe v. Pape, 365 U.S. 16% (1961) an

New York Times Co. v. United States, 403 U.S. 713

"Ej ROE SECA EIST ee ae

' Norton v. Discipline Committee, of East Tennessee

State Universit: y, 6th Cir., 419 F.2d 195, cert. den. ;

399 U.S. 906 (1970) Sierras tecagiipnantacahsaibenidteans ‘3

Norton v. McShane, 5th Cir., 332 F.2d 855 (1964) ........ 8

Organization for a Better Austin v. Keefe, 402 US. 415 |

ee er ets sia ie 13

Pearson v. Réed, 6 Cal. App.2d 277, 44 P.2d 592-(1935) 12°

Pierson v. Ray, 386 U.S. 547 (1967) ..:.......... Aion 10

__ Rhodes v. Houston, D.C. Neb., 202 F.Supp..624 (1962)

- aff'd 8th Cir., 309 F.2d 959, cert.. den. 377 US. 909 ... 11

Robichaud v. Ronan, 9th Cir., 351 F.2d 533 (1965) 8

Tinker v. Des Moines Independent School District, 393

US. syig bs bevmamingd LTO IE aT 12 -

\ «

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7 INDEX : Ill

Yaselli v. Goff, 2d Cir., 12 F.2d 396 (1926), aff’d per :

curidm 275 US. 503 See ret cnkncinsiianeetaeetiennn ieee 7,9, 10

‘Gone .

Section 17-1-11 - (a) and (c), New Mexico Statutes

Annotated, Ehsaan oa aie DR Ea en 2,8

Section 40A- 14-1, New Mexico Statutes Annotated, 4

ER Cha E USESEISES GS SIR oe te YR 2,5.

Section _40A-14-5,—New Mexico Statutes “Annotated,

A jotnititlaehsincileenbesiasSniaisstis cioenSncauecosnces, By DO

MISCELLANEOUS,

69 Supreme Court V, VI, address of former Chief-Jus-

tice Vinson before American Bar Association, Sep- —

tember 7, 1949 WE Se siieaesaie aie |

]

es 35%

ee

“IN THE

~ SUPREME COURT OF THE UNITED STATES

OCTOBER has ae 1971

‘No. rE BO rh a IY i

| MICHAEL BENSON, JUNE TRACY, EBDIE BROWN

_ and LINDA HUBBARD,

Petitioners,

VS.

JOSEPH RICH, JACK JOHNSON, CHRIS DiGREGORIO,

ee '. EDWARD S. ‘(“TKE” ) MERRY, and

RICHARD KAUZLARIC, |

pa ania: K

BRIEF OF RESPONDENT JOSEPH RICH IN OPPOSI-

TION TO PETITION FOR A WRIT OF CERTIORARI TO .

THE TENTH CIRCUIT COURT OF APPEALS

The opinions below are adequately set ‘forth’ in the

_ Petition.

JURISDICTION

The jurisdictional requisites are —— set forth

: in the Petition.

OPINIONSBELOW © ss

‘QUESTIONS PRESENTED _ :

(1). Is an Assistant District Attorney immurie from

-/ eivil liability for alleged damages resulting from his in- |

terpretation of state-taw, his application of the same to the

facts submitted to him, and his resulting advice to a

State officer’ given at the latter’ S request? :

(2) ‘Did the legal advice given a state offices by the

Assistant District Attorney deprive Petitioners of rights

secured — by the United States Constitution?

STATUTES INVOLVED,

In addition to those set forth in. the cpiarag at pages 2

and 3:

Section -17-1-11, New Mexico Statutes Annotated, 1953: ‘

“Each district attorney, shall:

A. Prosecute and defend ‘for the state’ in all courts

of record of the counties of his district all cases;

criminal and civil, in which the state or any county in. |

his district may be a sighted or may be interested;

“ea Mii ise all county and state officers whenever re-.

quested:

* 1 “#D)

Section 40A-14-1, New Mexico Statutes Annotated, 1953:

“Criminal trespass consists of unlawfully, and with

malicious intent, entering or remaining upon the lands’

of dnother knowing that such consent to enter or re- |

~ main is denied or withdrawn by the owner or occu-

y pant thereof. -

‘Whoever omnes criminal cheiasien: is coasts a of a petty

misdemeanor. ’

ert A :

Section 40A-14-5, New Mexico Statutes Annotated, 1953:

“A, Wrongful use of public property consists of:

cio - era jee ee : :

(2) remaining in or occupying. any public property .

after having been requested to: leave by the lawful

custodian, or his representative, who ‘has determined

that the public property. is being used or’ occupied

s contrary. ‘to its intended or customary use or that the °

public property may be damaged or ees by ‘the —

use; or °

(3) distriving a public af the. intended or |

customary use of public property without a permit.

sie Paes tory

E. As used in this sepAjon’ ‘public property’ means —

. any ‘public building, facility, structure or enclosure |

used for a ‘public purpose or as a place of public

gathering, owned or under the control of the state.

or one of its political subdivisions or a religious,

charitable, educational or recreational association.

F. Any person who commits wrongful use. of public

pony is guilty of. a petty misdemeanor. ,

G.. Any person who commits wrongful use’ of public

property after having been requested to leave by the

lawful custodian or his representative or any peace

officer, who has jurisdiction, ‘is guilty . of-a “misde-

meanor.’

_

4 ;

—

: ‘STATEMENT OF oe CASE

Thig lawsuit arises out of ev ents, ‘and occurrences that

took | place at the 1969 Gallup Indian. Ceremonial in Gallup,

New Mexico, on Friday, August 15) and Saturday, August 3

16. The trial judge made 18 findings of fact in granting :

Rich’s summary, judgment. motion. (Petition’ pp. 17-20)

~ and then made’ 59 findings of fact at the conclusion of a

-four.day trial on the merits against the.remaining Re-

‘ spondents. (Petition pp. 24-36). In their appeal to the

_ >. Tenth Circuit Court of Appeals, Petitioners did not attack

any of the ‘fact findings made by the trial court é as itt

unsupported by the evidence:

. ene Réspondent, Joseph ” Rich, is, and was at. ail

‘material times, the Assistant Djstrict: Attorney for Mc- .

Kinley - ‘County, New. Mexico, the county in which the

~ Indian. Ceremonial was held. His only involvement with

this case: occurred on Saturday (App. 11, 347), and, since

Friday's events are adequately explained in the’ brief —

filed herein by Responderits DiGregorio, Merry, and Kauz-’

larie, we will not repeat them here.

Rich. was at. the Ceremonial “grounds ‘on Saturday as

, a member of a voluntary - committee assisting with the

. Ceremonial. While there, he was handed. a copy. of ‘the.

‘ leaflet in question (App. 369) and was told. that ‘there

had been a disturbance atthe main entrance and exit: to

the grandstand on Friday night by a person passing out

the. leaflets: and blocking the area. (App. 349, 350). Rich :

read the leaflet and ¢ame to the conclusion that its lan-

guage presented a clear and imminent danger of creating or

inciting ‘a riot situation among the’ approximately 8,000

persons .who were expected to co each’ performance

at the Ceremonial that day. CARE 3 , dof, 353, 360}.

~

, | consent to remain was withdr awn: but Petition

" to leave, a ‘criminal complaint could be filed.

_Mr. Kauziaric, the President of the\Ceremodnial Asso-

ciation. (a state agency) approached Rich, indicated that

he was.concerned about another disturbance occurring ad

-- asked Rich what might be done to prevent the occuryénce

of such a disturbance. (App. 339, 341, 342, 343,

_ 353). Rich felt that he was being approached by Kauz-

Jaric in ‘his capacity as, Assistant District Attorney, that

. . his advice was being solicited in that capacity, and that

he gave such advice in that capacity. (App. 361, 362, 343).

2 Rich’s principal concern was ‘to prevent a riot situation.

fr om developing. #App. 363). It.is interesting to note that ©

_DiGregorio, who was present. at the nial night dis- .

that Officer Johnson, a state police officer traf

and crowd control, felt that a potential ri

or. trouble

situation existed. (App. 329+ 330).

‘Rich asked Kauzlaric whether the Association owned

the grounds and, upon being told that it, did, advised |

Kauzlaric that, as President ‘of the Association, he‘ could

- withdraw his consent for the. person. handing out the ,

leaflets. to remain on the premises. (App. 353, 339). It

was the judgment of the Assistant District Attorney that

the New Mexico trespass. statutes (Sec. 40A-14-1 and.:

Sec: 40A-14-5, N.M.S.A., 1953) were applidable and, if

rs refused

(App. 363, |

358). | :

. x‘ v A

Kauzlaric) ‘then told Officer Johison that he;was w with-

drawing the Association’ S consent or permission for Ben-

son (who w rag the only persen Kauzlaric’ knew to be dis-

tributing the leaflets) to remain on the grounds, and asked

_.Johnson to ask Benson to leaiie e. (App. 339, 340, 323, 304°

337),. Johnson passed this information along to Besson

.

*

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6

who said he wanted to talk’ to Rich. (App. 323, 324 ‘

Johnson then accompanied Benson to the room where Rich

* was located, introduced Rich to Benson as the Distyict

Attorney or Assistant District Attorney and requested

Rich to advise Benson, as to what his situation was. (App.

394, 355). : ae

Although there is some dispute as to exagfiy ewhat

Rich said, the evidence, eVen taken in a light nfost favor-

able to Petitioners, is that Rich told Benson the Cere-

monial officials did not like what he was doing with pass-

ing out the ijeatlets, that the Geremoniai grounds were

private property, that permission for him to remain on

the premises had been withdrawn, and that he would be

arrested if he did not leave the premises or stop passing

. out the leaflets. (App. 309; cf. App. 358, 359, 324, 329,

341). Rich explained to Benson that the léaflets could be

distributed in.the streets.~(App. 310). Benson made ‘no

reply and he and Johnson left the office: (App. 358). This

was the only contact the Assistant District Attorney had.

with Benson and he did not even know the other Peti-

tioners were involved with Benson much less did he have

any contact with them. Johnson then accompanied Ben-

son and his companions off the Ceremonial grounds. (App.

326-329). Atno time were any of the Petitioners arrested.

Based upon the above facts, the trial court held that

the Assistant District Attorney was immune from liability,

mad@ findings and conclusions explanatory of his decision

and entered summary judgment in Rich’s favor. This judg-

ment was affirmed by ‘the United States Court of Appeals

for ras Tenth Circuit. :

.

7.

REASONS FOR DENIAL OF THE WRIT

I

The Decision Below in No Way Conflicts with Other

Courts of Appeals on the Issue of Immunity.

Although summary judgment was granted Rich.on the

theory of judicial or quasi-judicial immunity, the Tenth

Circuit affirmed on the constitutional issue and did not

‘ yeach the immunity question. Indeed, nowhere does the

- term “immunity” appear in the Tenth Circuit's decision. Its

_ decision ‘cannot; therefore, be said to be in conflict with

~_ other Courts of Appeals on the issue of immunity. .

Even if the Tenth: Circuit had reached and totally

‘adopted the trial- court's reasoning on the issue of immu-

nity, there would still exist no reason for the issuance of

the writ sought herein because there is no true conflict

-among the circuits on the question of the prosecuting attor-

_ney's immunity. Neither the dccision by the trial court

nor any of the other cases cited by Petitioners hold that

a District Attorney has ‘a “blanket immunity” solely by

virtue of the position he holds and without ‘regard to the

kind of conduct involved in the particular case. All courts

agree that there dre limitations of the District Attorney's

immunity. See Bradley, v. Fisher, 13 Wall. 335. 80 US. —

335, 20 L.Ed. 646 (1872); Yaselli vy. Goff, 2d Cir., 12 F.2d

396 (1926). aff'd per curiam 275°US. 503.

As Judge Learned Hand noted in Gregoire v_ Biddle.

2d Cir., 177 F.2d 579 at 581 (1949): 7

“The decisions have, indeed, always binant as a limi-

tation upon the immunity that the official’s act must

have been within the scope of his powers. .. .”

8

Accord: Barr v. Matteo, 360 U.S. 564. 572 (1959); Bauers

v. Heisel, 3rd Cir., 361 F.2d 581 (1966); Kostal v. Stoner,

- 10th Cir., 292 F.2d 492°; 1961): Kenney v. Killian, D.C.W.D.

Mich., 133. F.Supp. 571 (1955), aff'd Kenney v. Fox, 6th

Cir., 232 F.2d 288 (1956): Jennings v. Nestor, 7th Cir., 217

F.2d 153 (1954): Norton v. McShane, dth Cir., 332 F.2d 855

(1964). ?

The difference, if any, between the courts exists in

phrasing the limitations. This does not creaté any true con-

flict between the Circuits. Furthermore, regardless of the

manner in which the limitations on the District Attorney’s

immunity are phrased, there is no conflict in applying those .

limitations to the facts. The acts allegedly committed by

the prosecuting attornevs in Robichaud v. Ronan, 9th Cir.,

351 F.2d 533 (1965) and Lewis v. Brautigam, 5th Cir., 227

F.2d 124 (1955) would have resulted in a denial of the

defense of immunity whether the cases were decided by

the Tenth Circuit or by any other circuit wherein: Peti-

tioners contend a conflict as to the scope of immunity

expts, | ee

The trial court ‘held that. the Assistant District Attor-

ney was entitled to immunity because, at all material times,

he was acting in his judicial: or quasi-judicial capacity in

the performance of his duties concerning matters within

his jurisdiction. ‘(Petition App. A. page 21). At the re-

quest of a state officér, Rich interpreted New Mexico law,

applied the same to the facts submitted to him, and advised

the officer as to What might be done to prevent a riot situa-

tion from developing. * Under Section 17-1-11(c), N.M.S.A.,

1953, Rich had a Mandatory duty to “advise all state of-

ficers whenever requested” and it-was his fulfillment of

‘such duty which gave rise to the claim against him. . The

District Attorney also had a statutory duty to prosecute all

criminal cases in which the state may be a party or may

be interested. Section 17-1-f1(a), N.M.S.A., 1953. Cer-

9

tainly his duties are not-limited to situations where a crim-

inal offense has already been ¢ommitted, and if he has an ~

opportunity to prevent a situation of possible violence from

developing, it would appear that he would be derelitt- in

his duties if he failéd to do so. Rich’s decision that Ben-

son’s activities had. or would violate state law is similar

* to the decision’ which precedes the presentation -of a case

to the grand jury or the approval of a criminal complaint

being filed. Can it be seriously argued: that Rich was not

acting in the performance of his official duties or that his

' legal advice had no connection with “the general matters '

‘committed to his authority and jurisdiction? *, ne

The thrust of Petitioners’ case .against Rich was that

his decision and his legal adyice were erroneous. Even if

it were, which we do not at all concede, this does not mean

that Rick was acting outside the performance of his duties

or that his immunity had been removed. Kenney v. Killian,

D.C.W.D. Mich., 133 F.Supp: 571 (1955), aff'd Kenney v.

Fox, 6th Cir., 232 F.2d 288 (1956). See Larson v. Domestic

and Foreign Corp.. 337 U.S. 682 (1949); Lewis v. Brautigam,

supra.

In the present case’-there was no arrest. However,

even if Petitioners had refused. to leave the Ceremonial

grounds and had.*in fact, been arrested and prosecuted

and either* acquitted in a trial on the merits or their

case dismissed by the court. it is clear’ that the District

Attorney would be immune from jiability. Yaselli v. Goff.

supra, Bauers v. Heisel. supra. Cawley v. Warren. 7th

- Cir., 216 F.2d 74 (1954). We submit that a District At-

- torney should not be liable for advice not even resulting

in an arrest.

(100

II

The Decision Below Did Not Decide an Important

Question of Federal Law Which Has Not Been, but Should

Moreover, the existence and scope of judicial and

quasi judicial immunity under Section 1983 of the Civil

Rights Act was decided by this Court in Pierson v. Ray,

386 U.S. 547 (1967), Although the case only dealt spe-

cifically with the immunity of a police justice, this Court

» held previously.in Yaselli v. Goff, supra, that a prose-

* cuting attorney has the same immunity as a judge. In

footnote nine, this Court in Pierson cited Bauers v. Heisel,

3rd Cir., 361 F.2d 581 (1966), as an example of the con-

sistent holdings that “judicial immunity” is a defense to

an a¢tion under Section .1983. The Bauers case, supra,

dealt- with the immunity of a county prosecutor. See also,

Cawley v. Warren, 7th Cir., 216 F.2d 74 (1954); Kenney

v. Fox, 6th Cir., 232 F.2d 288 (1956); Kostal v. Stoner, 10th

-Cir., 292 F.22™492 (1961).

Ill

The Decision Below Is Not-in Conflict with Monroe v.

Pape. ; : 7 Aig!

Petitioners contend: that the decision beiow is some-

how in conflict, on the issue of irnmunity. with this Court’s

- holding in Monroe v. Pape, 365 U.S. 167 (1961). The same

argument was apparently made in Pierson v. Ray, supra,

and the Courts answer is equally dispositive here:

“Monroe v. Pape’ presented no question of immunity,

however, and none was decided.”

_upon a broad combination of facts and circumstances.

-*

.

ll

7.

386 U.S. at 556. See e.g. Rhodes v. Houston, D.C. Neb., 202

F.Supp. 624 (1962), aff'd 8th Cir., 508, F.2d 959, cert. den.

377 US. ™-.

<a a .

The Decision by the Court of Appeals Does Not Conflict

with Recent Decisions of This Court Concerning: Free Ex-

ercise of Expression. ’

In ‘the first place, the decision by the Tenth Cireait

was based upon the special-and unique fact circumstances

surrounding the events which occurred ‘at the Gallup

Indian Ceremonial on Friday and Saturday, the atmosphere

at those times and places, and the language of the par-

ticular leaflet in question. All applicable constitutional

‘ principles were observed. Petitioners simply disagree with

the facts and feel that the courts below erred. It is-not the

proper function of certiorari to correct these matters. See

address of Chief Justice Vinson before the American Bar

Association, September 7. 1949, 69 Sup. Ct. V, VI. In their

* appeal to the Tenth Circuit, the Petitioners did not choose

to attack the ‘sufficiency of the evidence to sustain any

fact findings made by the trial court. See 448 F.2d at 1374.

Although we recognize that there are special. circumstances

where this Court will examine the facts. we question |

‘ whether that rule should apply here.

Ignoring all of the other facts detailed by the Tenth

Circuit in its opinion, Petitioners contend that the holding

against them was premised only upon two facts and then

proceed to attack those facts. The-decision below was not -

grounded solely upon the finding that the leaflet in ques-

tion was a “call to arms” and it was necessary that its dis-

tribution be halted to prevent pessible disorders or riots, or

upon the remark abcut tearing apart or burning down the

facilities. As mentioned above. the decision was based

x.

3

12

Leafletting and other similar activities’ may be constitu-

tionally regulated or prevented where it, is disruptive of the

use to which the public has detiicated the property in ques-

tion or it interferes with the rights of'other members of the

public to the normal use of the property. ‘ Adderly yv. State

of Florida, 385 U.S. 39 (1966): Amalgamated Food Em-

| ployees Union Local 590 v. Logan Valley, Inc., 391 U.S. 308

(1968); Tinker v. Des Moines Independent School District,

393 U.S. 503 (1969): Hurley v. Hinckley, D.C. Mass., 304

F.Supp. 704 (1969), aff'd 396 U.S. 277 (1970). That is what

the Court found existed wii Rich had been advised by

the President of the Ceremonial that Petitioners’ conduct

- had already disrupted the use\of the’ property for’ such

purposes and interfered with the rights of other members

of the public to enjoy the normal use of the property, and,

that the President was, concerned that a repetition of such

conduct could result in even more serious consequences.

The Assistant District Attorney was not required to con-.

duct hig own independent evidentiary investigation before

—_ the President of the state agency as to the appli-

cability of lo@al criminal statutes and as to what might be

“done to" prevent further disorder and, perhaps, violence. He

,was-entitled to rely upon the facts submitted to him.

(Pearson v. "Reed. 6 Cal. App.2d 277, 44 P.2d 592 (1935).

The situation presented to Rich for his on-the-spot de-

cision and advjce | was similar to that presented to the col-

lege authorities in Norton v. Discipline Committee of East

Tennessee State U niv ersity, 6th Cir., 419 F.2d 195, cert. den.

399 U.S. 906 (1970). Those in charge of the situation need.

not wait until violence has actually occurred before acting.

As the court below said inf the instant case: .

ae

. those in charge could take reasonable and good

faith action to prevent a disastrous situation which

they had reason to believe could occur.”

P “13

448 F.2d at 1374.

The court’s decision below does: not conflict with New

York Times Co. v. ‘United States, /403 U.S. 713 (1971);

Cohen v. California, 403 U.S. 15 (1971) or Organization for .

a Better Austin v. Keefe, 402 U.S. 415 (1971). In those

cases, unlike ours, there was no violence, disruption or dis-

turbance, nor was there any reasonable expectation of vio- |

lence or disturbances.

, The Court in Bachellar v. Maryland, 397 U.S. 564

(1970 ), pointed out that the disorderly conduct convictions

involved therein would have been sustained if they had

béen based upon findings that those involved blocked the

sidewalks and refused to get up and move after being

ordered to do so by the police. The infirmity with the

convictions was the fact that, under the instructions to the

jury, the defendants could have been convicted solely upon

the ground that they were advocating unpopular ideas.

As the Court said in the present case at page 1374:

“The action of the public officials. was not directed

toward the dissemination of ideas or ‘opinions; but

solely to maintain peace and order on the ceremonial

grounds and the prevention of violence and a riotous

situation.”

Nor does the devision below confjict with Carroll. v.

President and Commissioners of Princess Anne, 393 U.S.

175 ( 1968). That case was reversed solely upon the ground

that the temporary restraining order prohibiting a ‘white

supremist and racist organization from holding a rally was

_-acquired ex parte, without notice to the petitioners, and

without’ any effort, however informal, to invite or permit

their participation in the proceedings.

4 aK

CONCLUSION...

4

The Respondent, Joseph L. Rich, respectfully submits

that there are no special-or important reasons for granting

\tte writ of. certiorari and for that and the foregoing rea:

ons respectfully requests that the Petition for-a writ of

certiorari be denied. " aie |

Respectfully submitted,

_ James E. Speriinc

KENNETH—L. HARRIGAN

_. Post Office Box 2168

~* 800 Public Service Building

Aibuquerque, New Mexico 87103

Attorneys for Respondent, Joseph |

L. Rich -