# Motion — Caldwell v. City of New Orleans

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 957

## Text

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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

ae - . r ee: CRETE. i

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

Pidsssiestenn. ces ced nseniecteredincs rete cickasis Walia nee lake ollaiNN:

7a
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

JPL:slh

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0710%3A2. Public record. Not legal advice.