Motion — Caldwell v. City of New Orleans

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Supreme Court, U. S.

LIBRARY k LL E D

SUPREME COURT, U, &

| MAY 9 1975

_IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-1062

JAMES CALDWELL,

Petitioner,

versus

CITY OF NEW ORLEANS,

Respondent.

RESPONSE AND MOTION TO DISMISS

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF LOUISIANA

JOEL P. LOEFFELHOLZ

ASSISTANT CITY ATTORNEY

715 S. BROAD STREET

ROOM 522

NEW ORLEANS, LOUISIANA 70119

BLAKE G. ARATA

CITY ATTORNEY

Attorney for Respondent

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .............-+0055- iene

piss 8) yy 3 | SR ne Pie ie 1

QUESTIONS PRESENTED ..............--eeeeeeee 2

STATEMENT OF THE CASE ...............0eeeees 2

ARGUMENT AGAINST GRANTING THE

CE ached Rent eee seen es Ph aNn ENS eheecenessexenes 4

CEFN, ov vi cevcvrcnencenccsscevenssecesens 16

CERTIFICATE OF SERVICE ...........---++e0e- 16

play |) 0 + & Vee eer ee er la

Plog ts @. Tr rrr ee ee eee 3a

APPT CG. on ccvccciucnccersccccedvenvevesesene 6a

BPPTIE OF oe divccsesesvvcescsencrvscvenvevcsass 7a

TABLE OF AUTHORITIES

Cases:

Baldwin v. New York, 399 U.S. 66 (1972) .......... 8

Bloom v. Illinois, 391 U.S. 194 (1968) .............. 8

Coolidge v. New Hampshire, 403 U.S. 443

COOUED ou cai vival sens Ouaveuxababe voce ebnenee ¥ane i 11

Cooper v. State of California, 386 U.S. 58

CRDBF) once cvcacnssvvaWesscvecresvsererscecevecase 11

District of Columbia v. Clawans, 300 U.S. 617

PEED: hincn dc banbiesttvcvcthesaceonnnvecsesnanveces 8

Duncan v. Louisiana, 391 U.S. 145 (1968) ........ 5,8

Frank v. U.S., 395 U.S. 1470 (1970) .............-.-. 8

Huffman v. U.S., 470 F.2d 386(C.A. D.C. 1971)...... 12

James v. U.S., 416 F.2d 467 (1969) ................. 14

Johnson v. Turner, 429 F.2d 1152 ...........----++: 8

—V

ii

TABLE OF AUTHORITIES (Continued)

Page

Maita v. Whitmore, 365 F.Supp. 1331 .............. 9

Miller v. California, 413 U.S. 15 (1973) .......... 6,7,8

Nathanson v. U.S., 290 U.S. 41 (1933) ............. 10

Roaden v. Kentucky, 413 U.S. 496 (1973) .......... | 11

State v. Anselmo, 256 So.2d 98 (1971) ............. 13

State v. Eros Cinema, Inc., 264 So.2d 615 (La.

SE SESS LAS KERAUEA SR TACEERR CSET OARS ERE A aREOMS 14

State v. Henry, 198 So.2d 889 (1967) ............... 8

State v. Hightower, 272 So.2d 363 (La. 1973) ..... 13

U.S. v. Bobo, 477 F.2d 974 (1973) ...............06. 11

U.S. v. Harris, 403 U.S. 573 (1971) ................ 13

U.S. ex rel Gaugler v. Brierley, 477 F.2d 516

LORE SEMI REA: Meare GON AE iF Bean ea 13

U.S. v. Melancon, 462 F.2d 82 (5th Cir. 1972) .. 12,13

UB. WV. BROTOO, SOD FG GAG oo occ ccs esscensenn 8-9

U.S. v. Pierce, 301 F.Supp. 824 (1969) ............. 11

U.S. v. Potvin, 481 F.2d 380 ........... ne atigeeie ns 9

U.S. v. Rich, 407 F.2d 934 (5th Cir. 1969) .......... 13

Other Authorities:

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EE Once cds su kcnd view hasan einedakne 2,4,10

I cee tle licatiss asacketiabaveenawas 2.4

cn cnehav iden eceskes teneen ean 2,4,10

SE. Su ccwbibheeediare backs vesaeesveesessase 6

Home Rule Charter, Section 9-306 ................. 5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-1062

JAMES CALDWELL,

Petitioner,

versus

CITY OF NEW ORLEANS,

Respondent.

RESPONSE AND MOTION TO DISMISS

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF LOUISIANA .

Respondent, the City of New Orleans, files this

response and respectfully moves that the petition for

writ of certiorari in this matter be denied and dis-

missed for the following reasons:

JURISDICTION

Respondent would respectfully point out to the

Court that the judgment of the Louisiana Supreme

Court which is complained of was handed down on

January 10, 1975 and not January 23, 1974 as stated in

petitioner's application at p. 4.

2

QUESTIONS PRESENTED*

I.

IS THERE A6TH AMENDMENT RIGHT TO TRIAL

BY JURY IN PROSECUTIONS INSTITUTED UN-

DER 828 MCS 42-46, 42-46.1, 42-46.2 and 42-46.3 OF THE

MUNICIPAL CODE OF THE CITY OF NEW

ORLEANS EVEN THOUGH THE MAXIMUM

PENALTY POSSIBLE IS A $100.00 FINE AND 90

DAYS IN JAIL OR BOTH?

II.

DOES THE AFFIDAVIT CONTAINED IN THE

APPLICATION FOR THE SEARCH WARRANT IN

THIS MATTER CONTAIN SUFFICIENT FACTS

AND CONTENT TO ESTABLISH PROBABLE

CAUSE FOR THE ISSUANCE OF SAID WARRANT?

* Respondent's view of the questions presented dif-

fers from petitioner's in that respondent has sought to

limit the questions presented to those actually ar-

gued by petitioner in pages 13-24 of his petition and

not to those issues expressed in the form of “Questions

Presented” at pages 4 and 5of his petition but not brief-

ed in the body of his argument.

STATEMENT OF THE CASE

The Statement of the Case as put forth by petitioner

is essentially correct; however, respondent would

make the following corrections and additions:

LIL EIS

3

In paragraph number 2 petitioner states that the

Honorable Judge Bossetta “viewed the film, ‘Deep

Throat’, at an evidentiary hearing (emphasis added)

and determined it to be obscene”.

Respondent would respectfully show that while the

hearing referred to is evidentiary in nature, it is ac-

tually an “adversary” hearing which is routinely

moved for and held within 48 hours of seizure of a film

by the Police Department of the City of New Orleans to

determine the film's obscenity or non-obscenity as the

case may be. See: Motion and Order for Adversary

Hearing, Appendix A.

In paragraph number 9 petitioner creates the im-

pression that the Louisiana Supreme Court has stayed

execution, mandate and enforcement of sentence

pending the outcome of the instant proceeding.

This is simply not the case. As can be seen from the

order of the Louisiana Supreme Court and the cover

letter thereto from the clerk of said court (Appendix B)

petitioner was granted the stay only until February 21,

1975 and any further stay would have to emanate from

this Honorable Court after that date. That this is the

fact is amply attested to by petitioner himself when he

filed, along with the instant petition, a companion

application for supersedeas and stay which was de-

nied on February 26, 1975 (Appendix C) and which is

now moot for petitioner was directed, after February

21, 1975, to appear in Municipal Court to begin serving

his sentence on March 14, 1975 but failed to so appear

and is now a fugitive having fled the jurisdiction of the

Court.

BOR pay dy Oi Ne BREAN Eee TN Be

4

On March 14, 1975 Mr. Dale Wilks appeared in

Municipal Court and orally informed the Court that

Mr. Caldwell had fled the jurisdiction and then

presented a ‘Motion to Withdraw as Counsel of Rec-

ord” since neither he nor Mr. Rittenberg knew the

whereabouts of Mr. Caldwell at that time.

After some discussion Mr. Wilks informed the Court

that both he and Mr. Rittenberg were withdrawing as

counsel for Mr. Cadlwell in all matters pertaining to

this case, including the petition to this Honorable

Court, and would no longer be representing him inany

matter whatsoever.

As of this date Mr. Wilks and Mr. Rittenberg have

not, to our knowledge, withdrawn from the instant

matter as was their expressed intention when they

presented their above motion to the Honorable J udge

Bossetta.

ARGUMENT AGAINST GRANTING THE WRIT

I.

IS THERE A6TH AMENDMENT RIGHT TO

TRIAL BY JURY IN PROSECUTIONS IN-

STITUTED UNDER 828 MCS 42-46, 42-46.1, 42-

46.2 AND 42-46.3 OF THE MUNICIPAL CODE

OF THE CITY OF NEW ORLEANS EVEN

THOUGH THE MAXIMUM PENALTY

POSSIBLE IS A $100.00 FINE AND 90 DAYS

IN JAIL?

Before any intelligent discussion can be had on this

point it must be pointed out that petitioner's brief is in

5

error at pages 14 and 15 where he attempts to bring this

case within the ruling in Duncan v. Louisiana, 391 U.S.

145 (1968) requiring jury trials by flatly stating:

“(P)etitioner . .. was deprived of his liberty

for six (6) months...”

and

“....(T)he maximum penalty for violation

of Municipal Ordinance No. 828 MCS 42-46 is

imprisonment for six (6) months and/or a fine

of $100.00.”

Petitioner would have this court believe that he can

be deprived of his liberty for 6 months by making the

statement quoted above.

As pointed out in undersigned counsel’s letter of

February 26, 1975 to the Honorable Clerk of this Court

(Appendix D) the maximum penalty for violation of

any municipal ordinance of the City of New Orleans is

90 days not 6 months, and/or a fine of $100.00 which is

provided both in the Home Rule Charter of the City of

New Orleans and the Municipal Code itself thusly:

Home Rule Charter:

“Section 9-306. Penalties for Violations.

The Council shall by ordinance provide for

punishment of wilful violations of any provi-

sions of this Charter and may provide for

punishment of violations of ordinances, rules

and regulations, but it shall not provide for

MEARE he G8 Lt OBE hs Pe

fines of more than one hundred dollars nor for

imprisonment for more than ninety days, or

both.” (Emphasis Added).

828 MCS 1-6:

“Section 1-6. General penalty; continuing

violations.

Whenever in this Code or in any ordinance of

the city any act is prohibited or is made or de-

clared to be unlawful or an offense or when-

ever in this Code or any such ordinance the do-

ing of any act is declared to be unlawful. when

no specific penalty is provided therefor, the

violation of any such provision of this Codeor

any such ordinance shall be punished by afine

not exceeding one hundred dollars or by im-

prisonment for not more than ninety days or

both such fine and imprisonment.” (Emphasis

Added).

Therefore, it becomes patently obvious that under

no circumstances could Mr. Caldwell ever be sen-

; tenced to 6 months imprisonment for violation of any

: municipal ordinance of the City of New Orleans.

At pages 16 and 17 of his argument petitioner states

that he, as well as the entire city of New Orleans, is

deprived of his/ their right to free expression by the or-

dinance in question.

As was most ably pointed out in Miller v. Califor-

nia, 413 U.S. 15 (1973), and the companion cases

7

thereto, obscenity, as “defined” by Miller, does not fall

within the ambit of first amendment protections and

therefore States and Cities have the right to regulate

and/or prohibit such expression should they so desire

upon a “local” level without regard to “national stand-

ards”.

Petitioner attempts to show that there are no

procedural safeguards in the Ordinance for deter-

mining community standards and that nothing short

of trial by jury in each case will provide such

safeguards.

It is respectfully submitted that the ordinance itself

is the embodiment of the community standards of the

City of New Orleans for it was formulated and passed

by the City Council as the result of a whole month of

public hearings, after Miller was handed down, at

which all views were expressed by the left, the right

and the middle of the road and ultimately an accepta-

ble draft was reached which is the ordinance as it

stands today. See also: Opinion of Municipal Court —

Appendix B of petition for certiorari at pages 35-42.

Is this not then the “Community Standard” con-

templated by Miller?

If we accept petitioner's argument that only a“‘local

jury” can determine community standards, what then

is the elected City Council for the City of New Orleans

if not the representative of the entire community?

What function does it then serve if not the elected rep-

resentative of the entire city? Are we still not a

republic or would counsel for petitioner have the City

Sei a]

8

of New Orleans become a. pure and absolute

democracy requiring a meeting of a “local jury”

before anything may be accomplished?

We do not feel that it was ever the intention of this

court to abrogate the powers of duly elected repre-

sentatives of the people so long as there is no misuse

of that power.

Be all that as it may, the fact remains that in the in-

stant matter the maximum sentence Mr. Caldwell

could receive was 90 days and/or a fine of $100.00 and

even though Miller speaks of “jurors”, no case, that we

are aware of, requires a jury trial in municipal mis-

demeanor petty offenses and therefore Duncan, supra,

would be controlling in this situation.

In Duncan it was specifically held:

“Crimes carrying possible penalties up to

six (6) months do not requirea jury trial if they

otherwise qualify as petty offenses.”

(Emphasis added) 391 U.S. at 159

The Louisiana Supreme Court, in a case on all fours

with the one at bar, has held that a defendant

prosecuted for violating state obscenity statutes,

violation of which is a misdemeanor, was not entitled

to a jury trial. State v. Henry, 198 So.2d 889 (1967).

Accord: District of Columbia v. Clawans, 300 U.S.

617 (1937); Bloom v. Illinois, 391 U.S. 194 (1968); Frank

v. U.S., 395 U.S. 1470 (1970); Baldwin v. New York, 399

U.S. 66 (1972); Johnson v. Turner, 429 F.2d 1152; ULS. v.

9

Merick, 459 F.2d 644; U.S. v. Potvin, 481 F.2d 380; Maita

v. Whitmore, 365 F.Supp. 1331.

It is respectfully submitted that in view of the above

cited and quoted jurisprudence, particularly in view

of the fact that defendant is only charged with one

count of violation of 828 MCS 42-46 which carries a

maximum penalty of a fine of One Hundred Dollars

($100.00) and/or 90 days in jail, which is definitely a

petty offense, no right to trial by jury exists in this

matter.

II.

DOES THE AFFIDAVIT CONTAINED IN

THE APPLICATION FOR THE SEARCH

WARRANT IN THIS MATTER CONTAIN

SUFFICIENT FACTS AND CONTENT TOES-

TABLISH PROBABLE CAUSE FOR THE

ISSUANCE OF SAID WARRANT?

While petitioner set forth three major allegations in

paragraph 2 under the heading ‘Reasons for Grant-

ing The Writ” (P. 18) which he asserts renders the

warrant invalid in this case, he only argues and dis-

cusses the alleged deficiencies in the affidavit of the

officer establishing probable cause for the issuance of

the warrant.

The main thrust seems to be that the affidavit, under

petitioner's theory, must contain the provisions of and

track the ordinance word for word or it is con-

stitutionally deficient.

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10

The question now becomes whether or not 42-46 (A)

(1) and (3) must be tracked word for word in the af-

fidavit or does the affidavit serve, as it both legally

and traditionally has, merely as a fact instrument

from which the judge must determine probable cause

before issuing the warrant?

Respondent agrees totally with petitioner's inter-

pretation of Nathanson v. U.S., 290 U.S. 41 (1933) but

respectfully points out that the affidavit in question is

not a compendium of mere affirmances of beliefs or

suspicions but rather is a detailed factual accounting

of what the officer saw on the screen when he initially

reviewed the film and took notes and therefore

Nathanson does not apply. (See Affidavit, Appendix of

petitioner's Brief at p. 66-78).

Additionally, the affidavit's function is only to

supply factual material which may or may not

‘warrant probable cause for the issuance of the warrant

itself. When the adversary hearing was held im-

mediately after the film was seized (see Appendix A)

then, upon viewing the entire film, the determinations

were made in the manner repeatedly set down by this

court as well as numerous Federal District and Circuit

Courts of Appeal.

Even though not thoroughly discussed in his argu-

ment, petitioner alleges that the warrant was violative

of his 4th and 14th amendment rights and that the

warrant was general and overbroad.

First of all, only unreasonable searches and

seizures come within the interdict of the Fourth

11

Amendment. Cooper v. State of California, 386 U.S. 58

(1967).Moreover, only searches that are unreasonable

under all the surrounding circumstances are thus

prohibited. U.S. v. Pierce, 301 F.Supp. 824 (1969).

Respondent respectfully shows that, considering all

the circumstances under which the search in question

was made, said search was not in violation of any Con-

stitutional provisions.

In Roaden v. Kentucky, 413 U.S. 496 (1973) this Court

held:

“A search reasonable as to one type of

material in one setting may be unreasonable

in a different setting or with respect to another

kind of material.”

Accord: Coolidge v. New Hampshire, 403 U.S. 443

(1971).

It was also held in U.S. v. Bobo, 477 F.2d 974 (1973)

that:

“The requirements of the Fourth Amend-

ment with respect to reasonableness of

searches are not inflexible or obtusely un-

yielding to the legitimate needs of law en-

forcement.”

These cases lend credence to respondent's assertion

that under the circumstances and considering the type

of material seized, the search in question was not un-

reasonable or in violation of any Constitutional man-

| eens Soha

12

dates. In a case similar to the instant matter it was

held:

‘“‘A warrant authorizing the search of a

bookstore was not overbroad, on the ground

that it gave sole discretion to police to decide

what items were to be seized, where the un-

derlying affidavit, which requested the

warrant authorizing tne search for and

seizure of described magazines, was attached

to the warrant and the warrant expressly in-

corporated the affidavit in specifying the

items to be seizevc.”

Huffman v. U.S., 470 F.2d 386 (C.A. D.C. 1971)

Petitioner also generally alleges, other than his at-

tack upon the affidavit, that the search warrant inthis

case was issued without probable cause.

Like other Fourth and Fourteenth Amendment

provisions probable cause is not fixed or rigid stan-

dard. It is flexible and depends on the circumstances

surrounding the case. In U.S. v. Melancon, 462 F.2d 82

(5th Cir. 1972) it was held:

‘Probable cause for the issuance of a search

warrant is deemed to exist where facts and cir-

cumstances within the affiant’s knowledge,

and of which he has reasonable trustworthy

information, are sufficient unto themselves to

warrant a man of reasonable caution to

believe that an offense has been or is being

committed ... Only the probability, and not a

prima facie showing, of criminal activity is

13

the standard of probable cause for issuance of

a search warrant.” (Emphasis added)

Accord: United States v. Rich, 407 F.2d 934 (5th Cir.

1969).

In State v. Hightower, 272 So.2d 363 (La. 1973):

“Probable cause for issuance of a search

warrant means less than evidence which

would justify condemnation.”

Accord: United States v. Harris, 403 U.S. 573 (1971).

Probable cause must be considered according to or-

dinary and reasonable standards. The rule of probable

cause for issuance of a search warrant is a practical,

non technical conception. State v. Anselmo, 256 So.2d

98 (1971). See U.S. ex rel Gaugler v. Brierley, 477 F.2d

516 (1973) where it was held:

“The Fourth Amendment requires only that

the judicial officer issuing a search warrant be

supplied sufficient information under oath or

affirmation which would support an indepen-

dent judgment that probable cause exists for

the warrant’s issuance.”

Petitioner also argues, again in a general sense, that

the warrant in question lacks the required amount of

specificity in its description of the items to be seized.

However, in Melancon, supra, it was held:

” oT n eee

wal Uae lend RGR seNS

14

“In judging the sufficiency of a description

in a search warrant of premises to be searched.

it is enough if the description is such that of-

ficers with a search warrant can, with

reasonable effort, ascertain and identify the

place intended.”

Also, James v. U.S., 416 F.2d 467 (1969) it was held:

“When circumstances make an exact

description of instrumentalities a virtual im-

possibility, the searching officer need only

describe the generic class of items he is seek-

ing when he obtains the search warrant.”

Respondent shows that in this case the materials

seized could not and need not have been more

specifically described before their seizure. (See af-

fidavit, Appendix of Petitioner's brief. P. 66-78). In a.

similar case involving allegedly obscene motion pic-

tures, State v. Eros Cinema, Inc., 264 So.2d 615 (La.

1972), it was noted that:

“... it was difficult for the magistrate issu-

ing the warrant to personally review a motion

picture, as compared with reading a book, in

order to determine obscenity before orderinga

seizure.”

It is respectfully submitted, therefore. that there was

more than enough probable cause for issuance of the

warrant and it was not general or overbroad.

15

In conclusion, as to the warrant, petitioner makes a

specious argument at best. He cites but four cases

none of which apply in this situation.

It is patently obvions that the affidavit and warrant

in question meet all] the “requirements” of 42-46 in

every sense. What else can be supplied? Are the words:

“the average person, applying contem-

porary community standards, would find that

the work, taken as a whole, appeals to the

prurient interest; and

“the work, taken as a whole, lacks serious

literary, artistic, political or scientific value.”

828 MCS 42-46 (A) (1) and (3)

“magic” in nature and if not quoted verbatim in the af-

fidavit does this then render the entire case null and

void, or does not the facts as set forth in the affidavit

supply these meanings with enough reasonableness

for the judge to determine probable cause before issu-

ing the warrant?

No decision of this Court, that respondent is aware

of, has every held that these exact words must be

written down verbatim and incorporated in an

application for a search warrant or it is con-

Stitutionally deficient. This would, it is respectfully

submitted, be an unnecessary and confusing require-

ment for we would lose track of the main objective and

get bogged down in the question of whose formulary is

16

the best rather than what the objective of andthe “law”

should be.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for certiorari in this matter be

denied and dismissed.

Respectfully submitted,

JOEL P. LOEFFELHOLZ

Assistant City Attorney

715 S. Broad Street

Room 522

New Orleans, Louisiana 70119

BLAKE G. ARATA

City Attorney

CERTIFICATE

I hereby certify that a copy of the above and forego-

ing Response and Motion to Dismiss Petition for Writ

of Certiorari to the Supreme Court of the State of

Louisiana has been forwarded to opposing counsel by

depositing same inthe U.S. Mail. postage prepaid, this

8 day of May, 1975.

JOEL P. LOEFFELHOLZ

Assistant City Attorney

la

MUNICIPAL COURT

CITY OF NEW ORLEANS

CITY OF NEW ORLEANS

versus

JAMES CALDWELL

FILED:

MOTION AND ORDER FOR

ADVERSARY HEARING

Now, comes The City of New Orleans and respectful-

ly shows that the above named defendant was arrested

and charged with violation of 828 MCS 42-46 by dis-

playing and showing and charging admissions to see

a movie entitled “Deep Throat” on Friday, May 10, 1974

at or about 4:30 P.M. in the City of New Orleans at 1016

Canal Street, commonly called “Cinema 16 Theatre”;

Now, therefore, The City of New Orleans hereby

respectfully moves that this Court order that an adver-

sary hearing be held within 48 hours in order todeter- |

mine if said film is or is not obscene within the mean-

ing of and as delineated by 828 MCS 42-46.

JOEL P. LOEFFELHOLZ

Assistant City Attorney

715 South Broad Street

822-7145

BAY AO RS RA AS

FREEMAN R. MATTHEWS

Assistant City Attorney

715 South Broad Street

822-7145

BLAKE G. ARATA

City Attorney

ORDER

Considering the a tt. motion:

IT IS ORDERED that an adversary hearing in this

matter be held on the ___ day of May. 1974 at —_

o’clock in order to determine if the film “Deep Throat”

is or is not obscene within the meaning of and as

delineated by 828 MCS 42-46.

New Orleans, Louisiana this 13th day of May, 1974.

JUDGE

3a

APPENDIX B

OFFICE OF THE

SUPREME COURT OF LOUISIANA

New Orleans, 70112

January 22, 1975

Dale C. Wilks, Esq.

Rittenberg & Wilks, Esqs.

Attorneys at Law

234 Loyola Avenue, Suite 819

New Orleans, Louisiana 70112

-

Re: No. 55,666

City of New Orleans v. James Caldwell

Dear Mr. Wilks:

The Court today issued a stay of the judgment in the

above entitled matter, this order reading as follows:

“On consideration of the petition and motion

of James Caldwell, defendant-appellant in the

above numbered and entitled cause: IT IS

ORDERED that the execution and mandate

and enforcement of the judgment and decree

rendered in the above entitled and numbered

cause be, and it is hereby, recalled, stayed, and

arrested pending and until the 2ist day of

February, 1975, in order to permit James

Caldwell to seek a writ of certiorari from the

Supreme Court of the United States.”

POLE) OPC AB PAI er OO

4a

You will note that this stay is only to permit you to file

your writ with the United States Supreme Court

within the time permitted, any further stay thereof

will have to be obtained from the United States

Supreme Court.

If you have any questions, please ask me.

With kindest regards, I am,

Yours very truly,

/s/ HAROLD A. MOISE, JR.

Clerk

HAMJr:db

ecs: Hon. Blake Arata

Joel P. Loeffelholz, Esq.

Mr. Dan Kelly, Esq., Clerk (Your No. 149,117)

Mr. Edwin A. Lombard, Esq., Clerk (Your No.

244-524)

4

3

3

4

Z

UNRE e tee

AR einen |

5a

DOCKET NUMBER: 55,666

SUPREME COURT

STATE OF LOUISIANA

CITY OF NEW ORLEANS

versus

JAMES CALDWELL

ORDER FOR SUPERSEDEAS, STAY OF

EXECUTION AND STAY AND RECALL OF

MANDATE AND STAY AND

ARREST OF JUDGMENT

On Consideration of the petition and motion of

James Caldwell, defendant-appellant in the above

numbered and entitled cause:

IT IS ORDERED that the execution and mandate and

enforcement of the judgment and decree rendered in

the above entitled and numbered cause be, and it is

hereby, recalled, stayed, and arrested pending and un-

til the 21st day of February, 1975, in order to permit

James Caldwell to seek a writ of certiorari from the

Supreme Court of the United States.

* * + *

NEW ORLEANS, LOUISIANA, this 22nd day of

January, 1975.

JOE W. SANDERS, Chief Justice, Supreme Court of

the State of Louisiana.

/s/ JOE W. SANDERS

. 6a

APPENDIX C

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

February 26, 1975

Dale C. Wilks, Esq.

Rittenberg & Wilks — Suite 819

2-3-4 Loyola Ave.

New Orleans, La. 70112

RE: James Caldwell v. City of New Orleans 74-

1062

A-690 (Supreme Ct. of La., #55,666)

Dear Sir:

The Court today entered the following order in the

above-entitled case:

The application for stay of execution and enforce-

ment of sentence, presented to Mr. Justice Brennan

and by him referred to the Court, is denied. Mr. Justice

Douglas and Mr. Justice Marshall took no part in the

consideration or decision of this application.

Very truly yours,

Michael Rodak, Jr., Clerk ©

By

/s/ HELEN TAYLOR

Helen Taylor (Mrs.)

Assistant Clerk

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APPENDIX D

CITY OF NEW ORLEANS

Department of Law

February 26, 1975

Mr. Michael Rodak

Clerk

United States Supreme Court

Washington, D.C.

Re: James Caldwell, Petitioner versus The City

of New Orleans, Respondent.

Dear Mr. Rodak:

We have been served with copies of Petition for Writ

of Certiorari and Application for Supersedeas and

Stay in the above captioned matter.

Upon reading the writ, I wish to point out one inac-

curacy contained at the bottom of Page 14 and the top

of Page 15 where it is stated that the maximum penalty

for violation of the ordinance in question is imprison-

ment for six (6) months and/or a fine of One Hundred

($100.00) Dollars.

I must respectfully point out that the maximum

penalty for violation of any Municipal Ordinance of

the City of New Orleans is limited, by State Constitu-

tion and City Charter, to ninety (90) days and/or a fine

of One Hundred ($100.00) Dollars.

Yours truly,

/s/ JOEL P. LOEFFELHOLZ

Joel P. Loeffelholz

Assistant City Attorney

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