Petition for Writ of Certiorari — The Village Voice, Inc. v. Dominic S. Rinaldi

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| Reasons for Granting the Writ ..............0........cceee 8

I. The decision below is contrary to Bigelow v.

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II. The ability of the press to disseminate news

and commentary is unconstitutionally impeded

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III. To require a newspaper to defend protracted

litigation, without requiring a constitutionally

adequate showing of knowing or reckless fal-

sity, violates First Amendment policy ................ 11

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APPENDICES

Appendix A—Opinion Below ............................::::cees la

Appendix B—Opinion of the Court of First Instance 5a

Appendix C—Order denying permission to appeal to

the New York Court of Appeals ..............000..0000..... 13a

Appendix D—The Advertisement in Suit ..................... l4a

Appendix E—Letter to The Village Voice .................... 16a

Appendix F—Affidavit of James C. Goodale, Execu-

tive Vice President of the New York Times Co... 17a

Appendix G—Affidavit of Edward R. Cony, Vice Pres-

ident and Executive Editor of Dow Jones & Com-

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Appendix H—Affidavit of Edward A. Miller, General

Counsel to Harper & Row Publishers, Ine. ............ 27a

II

CITATIONS

PAGE

Cases:

Bigelow v. Virginia, 44 L.Ed. 2d 600 (1975) ...........5, 8, 9, 14

Bon Air Hotel, Inc. v. Time, Inc., 426 F. 2d 858 (5th

5, a ica a encencaianas 12

Booth v. Curtis Publishing Co., 15 A.D. 2d 343, 223

N.Y.S. 2d 737 (1st Dep’t), aff’d, 11 N.Y.2d 907,

182 N.E.2d 812, 228 N.Y.S.2d 468 (1962) .............. 10

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

a oa al ca taal sesh pnt ehediphem ig badhkavadussvevnes 3

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 43 L.

Ed. 2d 328 (1975)

Dooley v. Carsen, 15 N.Y. 2d 908, 206 N.E.2d 651, 258

MR oi vocchi seins pinvencdsacecarscossvre 2

Garrison v. Louisiana, 379 U.S. 64 (1964) 00000... 13

Gillespie v. United States Steel Corp., 379 U.S. 148

(1964)

Gotthilf v. Sills, 375 U.S. 79 (19638) 0 cecceccccccc

Grosjean v. American Press Co., 297 U.S. 233 (1936) 10

bo

Ux parte Jackson, 96 U.S. 727 (1878) 000. .

Meeropol v. Nizer, 381 F. Supp. 29 (S.D.N.Y. 1974) . 12

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

(1974)

Mills v. Alabama, 384 U.S. 214 (1966)

Nash v. Florida Industrial Commission, 389 U.S. 235

(1967)

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

5, 11, 12, 14

North Dakota State Board of Pharmacy v. Snyder

Drug Stores, 414 U.S. 156 (1973)

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Ii!

Smith v. California, 361 U.S. 147 (1959) .......

St. Amant v. Thompson, 390 U.S. 727 (1968) ..

Time, Inc. v. MeLaney, 406 F. 2d 565 (5th Cir.), cert.

denied, 395 U.S. 922 (1969) .

Treutler v. Meredith Corp., 455 F. 2d 255 (8th Cir.

DOT) occescccsccsccscscescssssnsneserecsssssuneensnssasennannnnnsesensnsnnnansnes

United Medical Laboratories v. Columbia Broadeast-

ing System, 404 F. 2d 706 (9th Cir. eos cert, denied

PAGE

12

$94 U.S. 921 (1969) ................ EA eee 12

Valentine v. Chrestensen, 316 U.S. 52 (1942) 7

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C.

Cir.), cert. denied 385 U.S. 1011 (1967) 11, 12, 14

Williams v. Florida, 399 U.S. 78 (1970) .........05 2

Constitutional Provisions:

United States Constitution, Amendments I and XIV

passim

New York State Constitution, Article 6, §3 2

Statutes:

28 U.S.C. §1257(3) .

New York Civil Practice Law and Rules » epene(b)(2)

New York Civil Rights Law §§50, 51 .

Miscellaneous:

Redish, ‘‘ The Pragmatic Approach to Appealability in

the Federal Courts’’, 75 Colum.L.Rev. 89 (1975) 3

Stewart, ‘‘Or of the Press’’, 26 ew L.J. 631

IN THE

Supreme Court of the United States

October Term, 1975

No.

Tue Vittace Voice, Inc., and Scau1, McCass, Stoves, Inc.,

Petitioners,

Vv.

Dominic S. Rrvap1,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE

OF NEW YORK, APPELLATE DIVISION,

FIRST JUDICIAL DEPARTMENT

Petitioners pray that a writ of certiorari issue to the

Supreme Court of the State of New York, Appellate

Division, First Judicial Department, to review a judgment

of that Court entered on March 11, 1975 (permission to

appeal to the New York Court of Appeals was denied,

May 13, 1975).

Opinions Below

The opinion of the Appellate Division is printed in

Appendix A hereto, infra, p. la, and is reported at 47 A.D.

2d 180 and 365 N.Y.S. 2d 199.

2

The opinion of the court of first instance (Supreme

Court of the State of New York, New York County) is

printed in Appendix B hereto, infra, p. 5a, and is reported

at 79 Mise. 2d 57 and 359 N.Y.S. 2d 176.

Jurisdiction

The judgment of the Appellate Division sought to be

reviewed was entered March 11, 1974. Petitioners’ timely

motion for permission to appeal to the Court of Appeals

was denied by the Appellate Division on May 13, 1975

(Appendix C, mfra, p. 13a). Jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3).

Under the circumstances of this case, no appeal may

be taken to the C »-t of Appeals, New York’s highest court,

without the permission of the Appellate Division. New

York State Constitution, Art. 6, §3; New York Civil

Practice Law and Rules, §5602(b)(1); Dooley v. Carsen,

15 N.Y.2d 908, 206 N.E.2d 651, 258 N.Y.S.2d 643 (1965).

Accordingly, the judgment of the Appellate Division was

rendered ‘‘by the highest court of a state in which a de-

cision could be had’’ within the meaning of 28 U.S.C.

§1257."

With respect to finality, the posture of this case is sim-

ilar to Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 43

L.Ed. 2d 328 (1975), and Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974). As in those two cases, it is

possible that petitioners here will prevail at the trial on

state law grounds* thereby mooting the important consti-

1. See Nash v. Florida Industrial Commission, 389 U.S. 235, 237

n.1 (1967) ; Williams v. Florida, 399 U.S. 78, 80 n.5 (1970). Cf.

Gotthilf v. Sills, 375 U.S. 79, 80 (1963).

2. Petitioners maintain that the publication complained of is

true and expect that a jury would agree.

3

tutional issues raised in this petition. But this resuit

‘would be intolerable’? because delaying final decision of

the First Amendment issues until after trial will ‘‘leave

unanswered .. . an important question of freedom of the

press under the First Amendment; an uneasy and unsettled

constitutional posture [that] could only further harm the

operation of a free press,”’ Miami Herald Publishing Co. v.

Tornillo, 418 U.S., at 247, n.6, through ‘‘ynwarranted re-

strictions on the press should the state court’s constitu-

tional judgment prove to be in error.”’ Cox Broadcasting

Corp. v. Cohn, 43 L.Ed.2d, at 343, n.12. Most significantly,

denial of certiorari ‘‘might seriously erode Federal poliey’’

until a similar case can reach this Court some time in the

future. 43 L.Ed.2d, at 342.°

Furthermore, as discussed at pp. 11-14 infra, petitioners

contend that subjecting them to the expense and burden

of a jury trial and of further appellate proceedings in the

state courts infringes their federal constitutional rights

and impermissibly chills the exercise of First Amendment

freedoms by other publishers. See Cox Broadcasting

Corp. v. Cohn, 43 L.Ed. 2d, at 344: ‘¢[ Petitioners] may

prevail at trial on non-federal grounds, it is true,’’ but if

the court below erroneously denied petitioners’ First

3. The pragmatic interpretation of the finality requirement under

28 U.S.C. §1291 where a Federal decision sought to be reviewed is

“fundamental to the further conduct of the case” lends further sup-

port to a finding of finality here. See, e.g., Gillespie v. United States

Steel Corp., 379 U.S. 148, 153-154 (1964) ; and see, generally,

Redish, “The Pragmatic Approach to Appealability in the Federal

Courts”, 75 Colum.L.Rev. 89 (1975). See also Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546 (1949) :

“When that time [‘final” judgment] comes, it will be too

late effectively to review the present order . . . .”

4

Amendment rights ‘‘there should be no trial at all.’’ The

Appellate Division’s judgment on this issue meets all tests

of finality since it is not appealable to a higher state court,

is binding on the trial court, and will not survive the re-

mand to the trial court for purposes of further appellate

review by the state courts or by this Court. Cox Broad-

casting Corp. v. Cohn, 43 L.Ed. 2d, at 341. In short, the

result is effectively the entry of sumuvary judgment against

petitioners on the constitutional issues.

The case also meets the principles of finality set forth

in North Dakota State Board of Pharmacy v. Snyder’s

Drug Stores, 414 U.S. 156 (1973), in that there is no way

that petitioners can preserve the constitutional issues short

of intolerable delay and inordinate expense:

(a) The fact that petitioners may prevail on state

grounds at the trial or post-trial appeal lends added

support to finality since in that event ‘‘the battle over

the [constitutional issue] will be lost as far as this

case is concerned.’’ 414 U.S., at 163.

(b) On the other hand, if petitioners lose at trial

on state grounds, and then successfully appeal on

federal constitutional grounds, a full see««: trial will

be necessary (unless summary judgment is granted on

such appeal). A second trial, at that stage, would ‘‘re-

sult in a completely unneccessary waste of time and

energy in judicial systems already troubled by delays

due to congested dockets,’’ 414 U.S., at 160, quoting

Mills v. Alabama, 384 U.S. 214, 217-8 (1966). Here,

this Court’s reversal of the Appellate Division could

end the litigation.

mw abl 7: wth theme

5

If, for whatever reason, the federal issues raised in this

petition are mooted, the f undamentally erroneous Appellate

Division decision herein would stand as the New York

State interpretation of the Constitution. This would in-

deed be ‘“‘intolerable,’”? particularly in the light of this

Court’s recent decision in Bigelow v. Virginia, 44 L.Ed.2d

600 (1975).

Questions Presented

1. Whether an advertisement by a newspaper contain-

ing material of clear public interest is automatically de-

prived of First Amendment protection solely because it

has the ‘‘commercial’? purpose of soliciting subscribers

and purchasers.‘

2. Whether, in a public official’s action for libel and

invasion of privacy complaining of an advertisement seek-

ing broader dissemination of a newspaper by summarizing

the newspaper’s previously published article critical of the

official’s conduct in office, the First Amendment requires

the plaintiff to establish knowing or reckless falsity as de-

fined by New York Times Co. v. Sullivan, 376 U.S. 254

(1964).

3. Whether the First Amendment requires a public offi-

cial to make a minimum evidentiary showing of knowing or

4. The decision below answered this question in the affirmative,

holding that all commercial advertisements, regardless of their con-

tent or the nature of the product advertised, were outside the scope

of First Amendment protection. Appendix A, infra, p. 3a. This

Court’s decision to the contrary in Bigelow v. Virginia, 44 L.Ed.2d

600 (1975), was announced after the decision below and after expira-

tion of the time to seek rehearing in the court below. Accordingly,

while petitioners would prefer that this Court reach the merits, an

appropriate disposition of this petition would be to grant certiorari

and remand to the Appellate Division for reconsideration in light of

Bigelow v. Virginia.

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6

reckless falsity before subjecting his critics to protracted

defamation and privacy litigation, including a trial on the

merits.

Statement

Petitioners are defendants in an action for libel and

invasion of privacy’ brought by a sitting Justice of the

Supreme Court of the State of New York, based upon an

advertisement (reproduced in Appendix D, infra, p. 14a)

that summarized a news article published in The Village

Voice critical of the judge’s behavior in open court and his

handling of narcotics cases, and referred to other articles

critical of his judicial conduct published in The New York

Times and New York Magazine.

The article, published in the Voice on August 31, 1972,

was based on a reporter’s investigation into judicial leni-

ency toward reputed narcotics dealers and organized crime

figures in New York. Petitioner Seali, McCabe, Sloves,

Ine., a professional advertising agency, placed the adver-

tisemeni in The New York Times on February 25, 1973 on

behalf ot petitioner The Village Voice, Inc. The advertise-

ment called for greater public involvement in matters of

questionable judicial conduct and explained the legally

available remedies for judicial misconduct. It also em-

phasized that The Village Voice had published an important

story several weeks before articles on the same subject—

and the same judge—appeared in The New York Times and

elsewhere; this was cited as an example of the Voice’s

5. Respondent’s amended complaint asserts two causes of action.

The first is for libel. The second cause of action, brought pursuant

to N.Y. Civil Rights Law §§50-51, is for invasion of privacy in the

use of respondent’s name and likeness.

aA! Oba hlia see —

7

superior investigative reporting and a reason for purchas-

ing and subscribing to The Village Voice.

In the court of first instance, petitioners raised the first

two questions presented here in their answers, which

pleaded as affirmative defenses that the publication com-

plained of concerned the performance of the judge’s official

duties and other important public matters, was published

without malice and in the reasonable belief that it was true,

and was therefore a privileged exercise of the freedom of

the press guaranteed by the United States Constitution.

After lengthy discovery, respondent moved to strike the

First Amendment defenses and petitioners cross-moved for

summary judgment on the First Amendment ground. Peti-

tioners’ papers and briefs on respondent’s motion to strike

also raised the first two questions presented here, and their

motions for summary judgment raised all of the questions

presented in this petition.

The court of first instance struck petitioners’ First

Amendment defenses and denied summary judgment. Pe-

titioners appealed, raising the three questions pre-

sented here in their briefs and oral argument. The Appel-

late Division affirmed in the respects material here and

denied petitioners’ motion for permission to appeal to the

Court of Appeals.

The court below, in holding the First Amendment

defenses inapplicable to petitioners’ advertisement, ruled

that all commercial advertisements were unprotected by

the First Amendment:

‘‘Freedom of the press has never been extended to

commercial advertising matter (Valentine v. Chres-

tensen, 316 U.S. 52).’’ Appendix A, infra, at p. 3a.

Reasons for Granting the Writ

This petition raises crucial issues of the freedom of the

press to criticize government officials and to comment upon

matters of compelling public interest. The decision below

seriously impedes the dissemination of news and commen-

tary by imposing a judicial penalty on republication of

constitutionally protected material in a newspaper’s adver-

tisements. The decision below also impairs the freedom of

the press by departing from the constitutionally required

standard of proof of knowing or reckless falsity and thus

encourages frivolous, but still expensive and burdensome,

suits by public officials against their critics.

I. The decision below is contrary to Bigelow v. Virginia.

As noted earlier, the decision below held that the First

Amendment affords no protection whatever to commer-

cial advertisements. This Court held the contrary in Bige-

low v. Virgmia, 44 L.Ed. 2d 600 (1975), which was an-

nounced after the decision below was rendered and after

the time to move for reargument had expired.

As in Bigelow, the advertisement in this case ‘‘did more

than simply propose a commercial transaction. It con-

tained factual material of clear ‘public interest’.”’ 44 L.

Ed.2d, at 612. Moreover, the ‘‘product’’ advertised in

this case — a newspaper — is itself constitutionally pro-

tected, just as the activity advertised in Bigelow pertained

to constitutional interests.

Kee

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9

The advertisement in suit here contain: far more tradi-

tional First Amendment matter than the one in Bigelow.

It presents a newspaper’s reportage and ditorial position

on the conduct of elected officials, the need for reforming

New York’s judiciary, and a plea for pullic participation

in that reform. It also informs the pubic of the means

available under New York law for discipliring or removing

errant judges. Cf., 44 L.Ed.2d, at 612 (informing public of

a state’s abortion laws).

In sum, Bigelow v. Virginia requires reversal of the

decision below.

Il. The ability of the press to disseminate

news and commentary is unconstitutionally

impeded by the decision below.

The decision below has had, and until overruled will

continue to have, an immediate, substantia, and immeasur-

ably deleterious impact on the ability of she press to dis-

seminate constitutionally protected publications through

advertising. As in Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974), the constitutional uncertainty created

by the Appellate Division’s decision ‘‘restricts the present

exercise of First Amendment rights,’’ 418 U.S., at 247, n.6,

by forcing publishers in practice to modify their historic

method of advertising their publications with the unwel-

come result of ‘‘reduc[ing] materially the flow of informa-

tion and opinion which such advertisemmts represent.’’

(Appendix G, infra, pp. 25a-26a.) A final and explicit

resolution of the issues raised by this pettion is urgently

required to protect newspaper and book publishers who

10

have routinely reproduced portions of their publications in

advertisements in the secure belief that the contents of such

advertisements enjoy the same protection as the original

publications themselves.°

This Court has consistently held that the First Amend-

ment protects the circulation and dissemination of litera-

ture even though it is sold for profit. Smith v. Californta,

361 U.S. 147, 150 (1959) Grosjean v. American Press Co.,

297 U.S. 233, 249 (1936); Ex parte Jackson, 96 U.S. 727,

733 (1878).". Advertising that exposes the public to the con-

tent and quality of books and periodicals is a traditional

and vital part of the dissemination process and enables the

press to perform its constitutionally assigned role in debate

on public affairs. Booth v. Curtis Publishing Co., 15 A.D.

2d 343, 223 N.Y.S. 2d 737 (1st Dep’t), aff’d, 11 N.Y. 2d 907,

182 N.E. 2d 812, 228 N.Y.S. 2d 468 (1962).

The burden of the decision below falls most heavily upon

those controversial books, pamphlets, and periodicals that

might provoke retaliation. Many of these are fledgling

publications that depend chiefly upon advertising to attract

6. Both The New York Times and The Wall Street Journal have

been advertised in other media by the reproduction of portions of

their newspapers; indeed, The Wall Street Journal “from time to

time has republished the entire front page of the Eastern Edition

of The Wall Street Journal in the same day’s edition of The New

York Times.” (Appendix G, infra, p. 24a.) Yet the necessary

impact of the Appellate Division’s clearly erroneous decision in the

instant case is that the entire front page of The Wall Street Journal

would be denied First Amendment protection simply by republication

in a different paper.

7. See Mr. Justice Stewart, “Or of the Press,” 26 Hastings L. J.

631, 633 (1975):

“[T]he Free Press Clause extends protection to an institution.

The publishing business is, in short, the only organized private

business that is given explicit constitutional protection.”

rotons.

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an audience for their point of view. Even if their pub-

lishers are willing to run the risk of suits commenced by

those who are angered by what they say, without consti-

tutional protection, the newspapers, magazines, and radio

and television stations that have heretofore carried their

advertising may well refuse to do so, or at the very least

may require their advertisements to be censored. Such cen-

sorship, of course, is antithetical to the Nation’s commit-

ment to robust debate on issues of public concern. New

York Times Co. v. Sullivan, 376 U.S. 254 (1964).

IIL. To require a newspaper to defend protracted

litigation, without requiring a constitutionally

adequate showing of knowing or reckless

falsity, violates First Amendment policy.

This Court has never considered whether the federal

Constitution prohibits the states from permitting public

officials to subject their critics to lengthy and costly litiga-

tion absent any preliminary showing of knowing or reckless

falsity. However, the federal courts of appeal have recog-

nized that the policy of fostering free, robust, and uninhib-

ited debate, which was the premise of New York Times Co.

v. Sullivan, 376 U.S. 254, 269-272 (1964), will not fully be

realized if public officials can put their critics to the expense

and burden of lengthy litigation culminating in a plenary

trial. See Washington Post Co. v. Keogh, 365 F.2d 965,

968 (D.C. Cir.), cert. denied, 385 U.S. 1011 (1967) :

‘‘In the First Amendment area, summary proce-

dures are... essential .... One of the purposes

of the Times principle, in addition to protecting per-

sons from being cast in damages in libel suits filed by

public officials, is to prevent persons from being dis-

couraged in the full and free exercise of their First

12

Amendment rights with respect to the conduct of their

government. The threat of being put to the defense

of a lawsuit brought by a popular public official may

be as chilling to the exercise of First Amendment free-

doms as fear of the outcome of the lawsuit itself,

especially to advocates of unpopular causes... .’’

Accord, Time, Inc. v. McLaney, 406 F.2d 565, 566 (5th Cir.),

cert. demed, 395 U.S. 922 (1969) :

‘‘[T]he failure to dismiss a libel suit might neces-

sitate long and expensive trial proceedings, which, if

not really warranted, would themselves offend the

principles enunciated in Dombrowski v. Pfister, 380

U.S. 479, 85 S. Ct. 1116, 14 L.Ed. 2d 22, because of the

chilling effect of such litigation.’’

See, e.g., Treutler v. Meredith Corp., 455 F.2d 255, 259 (Sth

Cir. 1972); United Medical Laboratories v. Columbia

Broadcasting System, 404 F.2d 706, 712 (9th Cir.), cert.

denied, 394 U.S. 921 (1969); Bon Air Hotel, Inc. v. Time,

Inc., 426 F.2d 858, 863-7 (5th Cir. 1970) ; Meeropol v. Nizer,

381 F.Supp. 29, 32 (S.D.N.Y. 1974).

Hence, these cases held that First Amendment policy

requires that a public official or figure proffer evidence

sufficient to satisfy the constitutional standard of knowing

or reckless falsity. H.g., Washington Post Co. v. Keogh,

365 F.2d, at 971; Time, Inc. v. McLaney, 406 F.2d, at 573.

This evidence, read in the light most favorable to the plain-

tiff, must establish knowing or reckless falsity with ‘‘con-

vineing clarity.’” New York Times Co. v. Sullivan, 376

U.S. 254, 275-6 (1964). It must indicate that the defend-

ant actually entertained serious doubts as to the truth of

the publication, St. Amant v. Thompson, 390 U.S. 727, 731

13

(1968), or was keenly aware of its probable falsity, Gar-

rison v. Louisiana, 379 U.S. 64, 74 (1964).

Petitioners submit that the First and Fourteenth Amend-

ments require the states to apply the same standard in

pretrial proceedings to test the evidentiary sufficiency of

a public official’s action for defamation. Any other result

would invite forum shopping between state and federal

tribunals by plaintiffs in actions for defamation.

The Appellate Division applied a different and consti-

tutionally inadequate standard. It apparently held that a

public official’s action for libel will survive a motion for

summary judgment, and must proceed to a plenary trial,

if the official adduces any scintilla of evidence that the

defendant should have questioned the publication’s ac-

curacy. That this was the unarticulated standard adopted

below is manifest from the one piece of evidence that was

held to raise a triable issue: a letter (Appendix E, p. 16a,

infra) to one of the petitioners that stated in general, con-

clusory terms that an October 12, 1972 Voice article about

respondent and another judge contained unidentified state-

ments that were inaccurate and incomplete. However, this

letter did not point out any misstatement in the article,

nor did it state any facts or identify any sources (or offer

to supply them) to support the charge of inaccuracy. More

importantly, the advertisement in suit here was based

upon a Voice article of August 31, 1972, which prior to the

publication of the advertisement in suit was never ques-

tioned, and not the October 12 article referred to in the

letter.

The notion that such evidence could sustain a finding

of knowing or reckless falsity is a complete abandonment

14

of the principles of New York Times Co. v. Sullivan, 376

U.S. 254 (1964).

By applying an impermissibly lenient standard and per-

mitting officials to subject their critics to expensive, pro-

tracted litigation without any evidence of knowing or reck-

less falsity, the decision below subjects the press to the

harassment of unfounded lawsuits and requires publishers

‘*to become self-censors.’’ Washington Post Co. v. Keogh,

365 F.2d 965, 968 (D.C. Cir.), cert. denied, 385 U.S. 1011

(1967). It is thus contrary to First Amendment policy and

the teachings of New York Times Co. v. Sullivan and subse-

quent decisions by this Court.

Conclusion

For the foregoing reasons, this petition for a writ of

certiorari should be granted and the case set down for

argument. In the alternative, the petition should be granted

and the case remanded to the Appellate Division for further

consideration in the light of Bigelow v. Virginia, 44 L.Ed.

2d 600 (1975).

Respectfully submitted.

Joun C. LANKENAU

Counsel for Petitioners

Victor A. Kovner

NaTHANIEL J. BickForD

Rosert C. Bickrorp

Pavut J. NEwLon

Steven FINELL

Of Counsel

August 11, 1975.