Brief in Opposition to Petition for Certiorari and in Reply Certiorari — Wilson v. Loew's Inc.

SUBJECT INDEX

PAGE

Preliminary I i esitibinionctinsciaiisiDnccscienndihiaianiterinenneiniantaminnbin iy

IE ischecdaelaticie ienisoeclsciasinsennsssinnersgsctibuinstiieindbion-paimeniaiauasdents 6

Question NN iied sc neecn tir csnussin'~ cobeeidasiaeenionsuinssdidenintealinmnaeiicicenes 6

Porn iiss nleaicncieciadsetiss nics sviodeseessibconeleinioaitaideale Nc ladaeaineadiooen 8

: I. 3

The- federal question now ovenented was not seasonably raised

below and it was not there decided..............-..----seeseeesseeceseeeees 8

| Ile

There is no federal question involved sat bar but only a ques-

tion of the correctness of a state court’s decision of local :

law. Such federal implications as may be involved in that

decision are without substantiality..2........scssescseceeceseeeeeees

| Il. :

Petitioners’ invoke the Fourteenth Amendment to proscribe

private conduct, whereas the amendment is applicable only to

"state action. Thus, no proper question | under the Constitu-

i I is oases 2 a erence aioe :

. Conclusion _........ iscsi clas eiethaiannitant iubaialieinutiia teats cinis akan,

11

ee

ti, |

TABLE OF AUTHORITIES CITED

CASES - Rat ee PAGE

American Ry. Express Co. v. Kentucky, 273 U. Ss. eM erninsines 10, 12

American Ry. Express Co. v. Levee, 263 U. S$. 19.......ttecceeees 4 |

Armstrong v. Armstrong, FDO, U.S. SOB. nn aecssnnscoccsesscsonnescornte ... 10

Arnold v. Universal Oil Land. Co., 45. Cal. App. 2d 522, 114 P.

RANEY schdeieidilinelsnsicishpobinisisienitennomietctioriniheip ae 5

Arrowsmith v. “Harmoning,, 118 U. S. ‘194 lcpciintieconniaie Lacosigpetiins 13

Bachte] v. Wilson, 204. U. S. 36.0......0.00-.c00000 sia a

_ Bailey v. Anderson, 326 U. S. a pocenipeialiniateeneeneeil 8, 9, 10

Barrows Jaen, Oe 0. Ss

Bentley v. Mountain, 51 Cal. App. 2d 95, 124 P. 28 W1.....2..0n 4

‘Black v: Cutter Laboratories, 351 U. S. eS. ae 12

: - Boyson v. Thorn, 98 Cal. 578, a 12.

Brown v. Western Ry., 338 U. S. 294 .cclcssctacrsetssssennenene 40

California Portland Cement: Co. v. Boone, 181 Cal. 35, 183

Pac. 447 re ohiakabati ini ae |

: Campbell v. Reyburn, 129 Cal, App. 2d 232, 276 P. 2d 671........ 12

Central Land Co. v. Laidley, 159 U. S. 103....sleccscssssseeecsseen an

; Chavez v. -Times-Mirror Co., 185 Cal. 20, 195: Pac. 5

_ Chicage ete. Ry. v. Whiteaker, - i | Gauena: 4

Civil Rights Cases, 109 U. S. .3............. hier Mssariesscceeneetnacnii «11, 18, 20

Daniel v. Family Sec. L. Ins. Co., 336 U. S. 220....... CE eyes 13

Davis v. Wechsler, 263 U. S. ihicisiisitcononesntensoctinins 2 EY NE

Day-Brite Lighting v.° Missouri, ‘342 U. Ss; 421... eat ies 13

Durley v. Mayo, 351 U. S. eee ishchenge diannbiceichiiee ae

_ Edelman v. ‘Galifornia, MA Uz S. 357............ bli ena ssaiiiomitiad , 8

- Ellis v, Dixon, 349° U. S. 458.0. h cccsccscnesncueen. sie canceciean il

rE] Zarape etc. Factory v. Plant. Foud Corp., 90 Cal. App. 2d

5 ei ieitickist wicasscnsitipssecaaiiosiataiisensaiiscaiiscdesiiiitis 3

sae _. PAGE

Estrin v. Superior Court, 14 Cal. 2d 670, 96 P. 2d 340........2..... °5

Faulkner v. California Toll-Bridge Auth., & Cal. 2d 317, 253

Ws | NeraC tLe hme a 455, 20

Forbes v. State Council of Virginia 216 U. S. | SONATA ee 10

Fox River Paper Co. v.° Railroad Commission, (274 U. &. 651... 4

Goesaert v. Cleary, 335 U. Saba ieee LIL PONTE 16

Gosewich v..Doran, 161 Cal. 511, 119 Pac. Oe 4

Grayson v. Grayson, 132 Cal. App, 2d 471, ‘282 P. 36 366........

Gayger v. \Wesnton, S34 TT. SFO enc cervgrnmnseyeseeernensronee 13

‘Hammell v. Britton, 19 Cal. 2d 72, 119 P. 2d BE i issiorsnisccrs 5.

- Hammerstein’ v. Superior Genet, P08 TL. Bt ae

Herbert v. Lankershim, 9 Cal. 2d 409, 71 P. 2d. Z20.....--0r-ceveeee See

Herndon v. Georgia, 295 U.S. DIG srecccrsncvesieristpensesti ccaunectnihniotie . 10

Hodges | wy. Celtel Spumed, FOS UW, Shans cawencescccencvcrvesesocensvononencee 19

” Hughes v. Superior Court, 339 U. S. 460 ..ccccerccepeeed3, 14,25, 21,

eee Lag Se nan een 8

Imperial Ice Co. v. Rossier, 18 Cal. 2d 33, 112 P. 24 ) 12

Imperial Valley L. Co. v. Globe Grain ete. .Co., 187. Cal. 352, 202 |

De ID iinisiccciceccinieniiisincaapsibesbermcettiniiiniinmnennionnicmmgsoven miata eae 8

‘Iowa Central Ry. Co. v. Iowa, 160 L. S. ee eae a

Jones v. Union Guano Co., 264 U.S. Coan ona Rees

Lake Shore & M.S. R. Co. v. Prentice, 147 TS 5 Seomeeaeh 15

Lincoln Federal .L. U. v. Northwestern I. & M. Co., 335 U. S.

AIIM ai Lies cities iaeidh since ae siealgecinmnensieiaa>. 2+: hlhealigignse copdasitinnereiee 13

Lochner v. New York, a a eerie tern en eeeneen sseivene 13

Long Sault Development Co. v. Call, 242 U. S. 272 lainmsics oiiceshs . 4

McAuliffe v. Mayor, 155 Mass. 216, 29 N. E. 516... eee

McCabe v. \. T: & S. F. Ry. Co ke. idhevcubatnobie 3

. McDonald v. Oregon Navig. CoS U i ne aneind ‘13.

‘ Mergenthaler Linotype Co. v. Davis, 251 US Me.

“Milk W agon Drivers 1. v. Meadowmoor Dairies, 312 U. S. 287 15.. |

\ *

PAGE

Milwaukee Elec. Ry. Co. v. . Milwaukee, 252 U.S. 100............12, 17

Missouri v: Gehner, 281 U.S. 313... : 2 idea 9

_ Moffatt Tunnel - imp. Dist. v. Detiver & S. L. Ry. be 45 FA2d.

715, cert. den. 283 U. ith tenitineiies anced niiinonely 20

‘Mutual. Life Ins. Co. v. McGrew, 188 U,, S: 308... 7 B.

Nebbia v. New York, 291 eS See eee eee

"Neblett v. Carpenter, 305 U. S. 297 .,.cccccnn 12

New York Cent, R:R. Co. v. White, 243.U. S. ~~... 15, 16

‘New York R. T. Corp. v. New York, 303 U. $.°$73 gunn 16

Nickel v. Cole, 256 U. S. 22Qccsoethnesecsenssneun ‘cei, ae

Osborne Vv. Gray, 241 U. S. 16 Neatabias ae Sitelindaidetiathdain palate lliaaliaii ie

Parker v. James Granger, Inc., 4 Cal. 2d 668, Se F. 2d 226, cert.

SE Rig sos .

; Parkinson Co. v. Building Trades Council, 154 Cal. 581, 98

ee ciclo, met

Pizitz Dry Goods Co. v. Yeldell, 274 U.S. V12....cccccccsssssssseeuen 15

Prince v. Hill, 170 Cal. 192, 149, Pac. S78..ccicoccseueenecineeseeete 9.

: Prudential Ins. Co. v. Cheek, 259 U.S. 530.0... alpine 13.

Puget Sound P: & L. Co. v. Seattle, 291 U. eee eS

Quinn v. United States, 349 U.S. 155.......... SATE fee See

Sanders v. Howard Park: Co., 86 Cal: App: 24 721, 195 P . 2d

ee edie pinictaans a

Senn v. Tile Layers etc. Union, 301 U. S. 468..... + SNE NIN 16

Shelley v Kramer, 334 U S CEG Ameo Nee Coie SER "1, 20, 21

Siver ¥; Sw, MO VU. $197 aoe 16

Siaughter House Cases, 16 Wall. (83 a A) 15

'. Smith y. Texas, 233 U. S. 630.......... RRO tase ttl de) eM 2)

ne an oe cima Me 12,14 ,

Stembridge v. "Georgia, 343 U. S. S41. tego stapoige onenstcatalnat same

Takahashi v. Fish & Game Commission, 334, uC. = 410. Bacal ie .

Ps eta v. Board of Fire Underwriters, 29 “+ 34, 172 P.

. \

| : ; ' PAGE —

-Tileston v. Ullnian, 318 U.S. 44 cccectevcsecpeecieneectencieneneuene 3

Tracy v. Ginsberg, 205 U. S170. anna...) b abuctie dideeashaddenaden 13

Truax v. Raich, 239 U. S.33.cccccceeene SS ere

Ullman y. ‘United ‘States, 350 U.S. 422... -icneo Pik ae 19

-United States v. Cruickshank, 92 U. S. 542..0.cccuccccscneenetwee 19

~ United States v. Williams, 341 na TR

Vandalia Railroad v. South Bend, 207 U. S. 359.........cccnste: “2

Ward-y,, Love County, 258 U. S$. 17.................. gelatnmemiabibagionenca ™

Washington v. Miller,.235 U. S. 422.........:.... Prine ieee ete. 4

Weil v. Barthel, 45 Cal. 24 835, 291 P. 2d 30.ccccccccccceeence 5.

Wilmington Min. Co. v. Fulton, 205 U. S. 60...... See ene 16,

Worcester County Trust Co. v. Riley, 302-U. s. i iesintc Naini 17

Zoi ach v. Clauson, id OD. & Gis Palak al clas 4

ate Rutes :

Rules of the United States ‘Supreme Court, Rule 21 ER Se

| ; STATUTES ; |

California Code of Civil Procedure, Sec. 1875(3).... tis potas. a

United States Code, Title Be PN Bi reectcieveriasininenonerrtvincineniidoogntons 18

United States Code, Title 28, Sec. 1257(3) ..-cccccueeu eine

; United States Constitution, ‘Fourteenth Amendment..: ss RRR

ssiinidsanigiaaiehiecinaadanioa ae 11, 12, 13, 18; 19, 20

TEXTBONKs | | |

- 9 American to Reports 2d 228, 256-257, Anes se ain 12

as

S ge oa | ae

“be. seen that the constitutional question was not raised m

_o-

aN THE

- Supreme Court of the United States ae

, October Term, 1986 e

No. 552. .

‘s = ‘ . Pd : ; |}. a

MICHAEL WILSON, et ai:, | feat a

; | Petitioners, = ©

OS. . a

Laew ~ INCORPORATED, a corporation, et al., os ee

Respondents.

Brief in Opposition to Petition for Certiorari ‘and jn

Reply to a of Lemenens Cariae, j

alia Statement.

_ First: "The record which petitioners haye caused to be.

ie doés not contain the materia] necessary to ascer-

tain when and in ‘what ¢ircumstances.the constitutional...”

question posag here was raised below.. Accordingly, .we

have filed with this. brief, pursuant to Rule 21(6), a

supplemental record (hereinafter referred. to af “Supp.

R.”) containing that material. Fromi this record -it will

thie triaMeourt; and that it was not raised on appeal until

after the cause had been decided on: “the: merits.’ Never- a

‘In California practice, questions are raised. on iesesl in the briefs.

of the parties. [Epperson v. Rosemond, 100 Cal. App. 2d 344, 347,

7 P: 2d 480; California Portland . Cement Co. v. Boone, 181 Cal. °

43, 183. Pac. 447, 450-451: Grayson v. Grayson, 132 Cal. App.

2d 471, 282 P. 2d 565:] Accordingly, thé supplemental record

‘whiclt we have caused to be prepared contains the,briefs in the _

. District Court 6f Appeal. The Clerk did not number the pages’ “ot

this record consecutively. So, references -are to ‘the pages of the

" particular .document indicated.

»

“

ne

a

- . : ~~ ess

+

- theless, at page 9 of the petition, without — refer-

ence to the record, petitioners say that they urged on |

“appeal te the state court the contention “that the judg-—

_ ments of. the. Superio. Court ‘deprived petitionets df their

liberty to pursue their chosen callings in violation of the -

applicable Provisions ‘of. the state Constitution and the :

. Fourteenth Amendment. ‘ That statement is mis-

leading in- so far_as it conveys the impression that the

question was seasonably raised. Actually, the existence

of such a question was-suggested for the first time in the.

case in a petition for . rehearing filed after: decision on

- the merits by the District Court of Appeal. [R: 184-187.}

' The-same suggestion, along witt number of other points,

was made in a -subsequent petition for hearing in the

state ‘Supreme. ‘Court after decision by the Distrid-Court -

“of Appeal. [R. 225-228. } In respect of the constitutional _

question, each of those petitions: was resisted. by respon-

dents on the ground, among others, that the question was

“raised too late. [Supp. R. (Ans. to Pet. for Rehear.) .

4-5; (Ans. to Pet. for Hearing) 12.] The petitions:

were denied without opinion. [R. 199, 275.] It cannot, -

therefore, be said that the federal question was decided

below. For. all ‘hat. appears in the record ‘here, that

oquestion might. have been byepassed solely because of the

untimeliness of its presentation. :

Second: Petitioners treat their complaint as sdiannity

alleging facts showing that “by reason of the acts and

pursuant td the agreement of respondents, petitioners

_have been refused and excluded frorn employment in: the .

industry. . . +.” [Pet. 12.]- The state court did not —

so réad the complaint. Rather, it held that the ‘complaint

alleged only that at some unspecified time before the re-

_ Spondents had: made the agreement “gomplained of, the

petitioners had ‘been en oan in: the motion ‘pictyre in-

* dustry ; that it-was not n when or why that employ-

ment had ‘been terminated, but the necessary inference |

was that it had ended’ as the result of facts wholly dis-

connected from the agreement and: t! iat those facts were

still effective. -So, court concluded, ‘it could not be

inferred from the complaint that the alleged unlawful

-combination was the cause of petitioners failure to obtain ©

employment. [Pet, App. A; 15-17.) ©

Thus, we see that the lawfulness of responderjts’ agree-

‘ment was not decided below. The question whieh was.

_ decided was whether “persons, who had not. been shown

to have lost employment or an employment opportunity

ab the result of an alleged tortious agreement restricting 4

employment, had .afiy standing to, complain. and obtain

relief in respect of that agreement. - That is quite a -

- different question from: the one which petitioners now —

utge, postulated, as the latter question is, on ‘the assump-

tion that petitioners’ failure to obtain employment was the

result of the respondents’ allegedly urilawful agreement.

Manifestly, the question actually decided below has

‘none of thé constitutional | implications which petitioners

and amicus curiae purport to ge oe case. [Cf. Mc-

Cabe v. A. T. & S. F. Ry. Co., 235 U>S. 151, 162-164;

Tileston v. Ullman, 318 U. S.44.] Nevertheless, when.we

reach the: substantive merits of their argument [Points -

II, III; infra] we shall treat the problem on the footing

upon which they seek to place it. Yet, it is apparent

that if certiorari were granted, consideration of, the cause

‘oni the merits could only lead to the conclusion that the

Appeal until after the latter court’s decjsion, of any’ federal right.

_ aa - ; <"

question raised in the petition was not really involved?

In that event, dismissal ‘of the writ. as improvidently

granted, would be the appropriate and likely order. [See,

@G.,- Ellis @. Dizon, 349 U. Ss. 458.) _ There is, Luis ;

no sound teason to issue the. writ. ;

: ” Third: In California practice a iene admits on }

the facts well-pleaded. It does not ‘admit conclusions of

athe pleader or argumentative or epithetical averments.

” [Pouthneh v.. California Toll-Bridge Auth., 40 Cal. 2d

317, 329, 253 P. 2d 659, 667; Bentley v. Mountain, 51

Eal. App. 2d 95, 98, 124 P: 2d 91, 93; Gosewich v. Doran,

161 Cal. 511, 515- -516, 119 Pac. 656, 658.] Nor does

*

2The construction to be given a pleading and the question whether

a complaint states a cause of action under state law are, of course,

"matters of local law not reviewable here. [Vandalia Railroad v.

South Bend, 207 U. S. 359, 367; Osborne v. Gray, 241 U. S- 16,

20; Chicago etc. Ry. v. Whiteaker, 239 U. S. 421, 424; Washington

_v. Miller, 235 U. S. 422,-429.] When a federal question is raised

‘in a state court, this Court on review miay decide for itself whether

the facts alleged are sufficient. [Ellis v. Dixon, 349 U. S. 458,

463-464; Brown v. Western Ry., 338 U. S. 294, 296; Ward v.

Love. County, 253 U. S: 17, 22.] ° But that only means that a. -

federal ‘right cannot be evaded or its assertion made difficult by

local practice. [American Ry. Exp. Co. v. Levee, 263 U. S. 19,

21; Davis v. Wechsley, 263 U. S. 22, 24-25.] It does not mean that:

the state courts are not free to decide questions of local. practice as

they will, when only local rights are put in issue. At bar, there

was no assertion in the trial court, or in the District Court of.

So, there was no evasion of any federal question. Consequently,

the state’ court’s reading of the complaint should be conclusive here.

[See, Osborne v. Gray, supra, 241 U. Sat 20-21; Zorach v. Clau-

son, 343 U. S. 306, 311 (note 7); Nickel v. Cole, 256 U. S. 222,

2S; Fox “River Paper Co. v.- Railroad :Commission, 274-U. °S.

651, 655; Long Sault Development Co. v. Call, 242 U. S. 272, 277.]

_ it admit allegations contrary to facts judicially noticed;

for such facts are deemed included .in the complaint..

| [Chaves ‘v. Times-Mirrar- Co>85 Cal. 20, 23, 195 Pac.

666, 668; Hammell v.. Britton, 19 Cal. 2d 72; 75, 119 P.

» 2d 333, 334-335; Weil v. Barthel, 45 Cal. 2d 835, 837, 291

P. 2d 30, 31. ‘] On demurrer the complaint will ‘be liber-

ally- construed ; but it will still be deemed fo state the .

strongest case open to the pleader. ‘[Faulkner y-C alifornia

Toll-Bridge ‘Auth, supra, 40 Cal. 2d at 328, 253 P. 2d at

666, and cases there cited,] Allegatidns not inade will not

be added: by strained construction. [Estrin v. Superior

Court, 14 Cal. 2d 670, 677, 96 P. 2d 340, 343.]

“2 From the application of these rules of California prae-

tice the state court arrived at the interpretation of the com-

| plaint to which we have already referred, [Par. Second,

| supra.| It also concluded, from its. judicial notice of the

proceedings of the House Committee on Un-American Ac- |

tivities,’ that the questions which petitioners had refused

to answer before that Committee did not relate to their

. “political affiliations, associations or beliefs” but did con-

cern their membership i in the Communist ‘Party\*

' 3In California the courts take judicial notice of the*“‘Public and.

private acts of thé legislative, executive and judicial departments

of the United States.- . Yea{Cal. Code ‘of Civil Pro-

cedure, Sec. 1875(3). See, also: Arnotd}v. Universal Oil Land

Co., 45 Cal. App. 2d 522, 529, 114. P. , 412; Parker v.

James Granger, Inc., 4 Cal. 2d 668, 677, 52 B. 2d 226, 230, cert.

den, 298 U. S. 644; El Zarape.etc. Factory v. Plant Food Corp.,

90 Cal. App. 2d 336, 203 P. 2d 13.] re

‘Petitioners concede that the Communist context out of which

this case arose played no part in the result. [Pet. 10, note 1a.]

bitin einen td: Seo, 0008.

‘St does not, however, exist for the reasons indicated above

Sand set forth below at — [Pies infra. |

‘The neath were alleged to be in the Sliced of

producing and distributing motion pictures and to .¢on-

trol, directly or. indirectly, ail employment opportunities: in

that industry. Petitioners were alleged. to be actors, writ-

ers and others who at one time or another had been em-

ployed in the industry. ‘It was not alleged that they were

so employed at or near the time of the~eonduct com- ,

| plained of, or that they were then seeking or negotiating .

for, or had any reasbnable prospect of obtaining, such

employment. Sometime after petitioners . were last em- -

ployed, the respondents allegedly agreed that. they would |

not employ persons who, (a) having been called to testify

before the House of Representatives Committee on Un-

American Activities, ‘Fefused, ont constitutional grounds, .

including. self-incrimination, - “to answer questions con-

cerning their political affiliatioris, associations and beliefs ;

or, (b) having been named as Communists before the

Committee refused and failed to appear before it, waive —

and surrender their. constitutional rights and testify as’

to their political affiliations, associations and beliefs ahd

those of their families, friends, associates.and acquaint-

ances. After this agreement had been made, certain of

the petitioners were called before the Committee and .there

refused to answer ‘questions concerning their membership

a | a

in ‘the Communist Party; and the others, having been

_ named before the Committee as Communists, refused to

appear and testify in respect of that subject. 6Ais a matter

process or equal protection: had been raised, the court

below held that a complaint alleging the foregoing facts.

failed to stateya cause of action for unjustifiable inter-_

ference with business relations because the. petitioners had

pective employment which _was interfered with, the exist- _

ence of such a present or prospective interest being ‘an -

essential element of a cause of action for relief in respect

of the“tort which it was claimed’ had been committed.

_. In these circumstances the federal question here at-

tempted to be presented is this: Did the state, court deny

petitioners substantive due process or 7 eas oneal in

* ‘thus defining the elements and limits of the tort in respect

of which relief. was sought?

-of state tort law, and before any question of federal due . &

—net- -shown- that. they had_-an-existing-or reasonably pros- = :

5 ihe — ; “Sy

“ —~ — e \

es : igo cee es

ores pe oats ‘ Py

- * a.

mn

, ‘The Federal Question Now Presented Wea Not Ses-

ee

‘sonably Raised Below and It Was Not There

‘This Court, is without jurisdiction of the cause beat

the state practice; 2 ey it was not, in any event, decided.

“Riast: The question was not raised at ‘all in the trial

: court. [R. 2-108; Supp. R. (Op. Br. for Plaintiffs-A ppe!-

Jants) 1, 7.] - This in itself, precluded review: of it in the

state appellate courts." [Imperial Valley L. Co, v. ‘Globe

Grain ete. Ce Co., 187 Cal.-352,-359, 202 Pac. 129, 131- 132;

Herbert v. Lankershim, 9 Cal. 2d 409, 484, 71 P: 2d 220,

' a] Rie similarly non-reviewable here. This -Court-

“is witHout power to decide whether constitutional rights

have been ‘violated when the federal questions are not

seasonably raised in ‘accordance with the. requirements }

_of state law. . . .” [Edelman-v. California, 344. U.S:

357, 358. To the same effect: Mutual Life Ins. Co. v.

McGrew, supra, 188 U. S. at 308-309; Bailey v. Anderson,

326 U. S. 203, 206-207 ; Hulbert v. Chicago, 202 wv. a

275.] :

Second: The question was first raised, if at all, in the

7 petition for rehearing filed after decision by the District

Court of a [R. 184-187, 233.] According to Cali-

5This rule of California practice is’ recognized in Mutual ta

Ins. Co. v. McGrew, 188 U. S. 291, 309.

ei

Vv

‘esis

‘ *: btm |

fornia practice that was: too late to require consideration |

or decision of the question by the appellate courts.. { Prince .

v. Hill, 170 Cal. 192, 195, 149 Pac. 578,°580; Sanders v. -

Howard Park Co., 86 Cal. App. 2d 721, 723, 195 P. 2d

898, 899.] “It follows that the denial of that_petition, as

well as of the petition for hearing inthe state Supreme

,Court,*. anight- well “have been based on that ground, ‘or’ 3

upon the’ failure to raise the question in the trial court,

| [Stembridge ‘v. Georgia, 343 U. S. 541, 547, and cases

“there cited.]:-This would be an adequate ‘state ground for

the result in the cause ; and “when the question of the. /

existence of an adequate state ground’ is debatable” this

Gourt js without jurisdiction. [Stembridge -v. Georgia,

supra, 343 U. S. at 547-548; Durley v. Mayo, 351 U. S.

277, 281-282, 285 ; Bachtel v. Wilson, 204.U. S. 36441-42. :

In fact, the contrary not appearing from. the record,

must be “assumed that decision below was placed on ie /

state ground. [ Bailey Vv. ple supra, -326 U. S. at

206-207. ] Furthermore, -t e “long-established general

: tule is that the attempt to raise a. federal question after

_ judgment {in the state appellate court },. upon a petition |

_ for rehearing, comes tod late, unless the court actually

. . : ee PN

” 8The proper court to which to direct the certiorari Js the District

- Court of Appeal. [Hammerstein v. Superior” Court, 341. U.S. 491,

492.) It is, therefore, immaterial why the State Supreme Court may’

. _ have, denied the petition. for hearing. [/bid.]

entertains the question and, decides it. . « ."" [Herndon 7

‘There can be no proper claim that the existence of. a federal -

question could not have been foreseen in advance of the District

Court of Appeal’s decision. (Cf. Missourt vs Gehner, 281 U. S.

° G

er

2 Gatagln 295 U. s. 441, 43, and cases ‘thane ceed: |

eee State Council ouncil_ of Virginia , 216 U.S. 396, 399;-

Mergenthaler’ Linot¥pe- Co. wPavis; 251 U. S: 256, 258

a" ee ae rs

Third: The record. does not. affirmatively show: ‘that the

federal "question was decided below. ‘Yet, unless suchi io

an affirmative showing? i is. made this’ Court will not take

jurisdiction..’ [Bailey v Anderson, supra, 326 U. S. at

207, and cases there cited; American Ry. ExpresgyCo. v.

‘ Kentucky, 273 U. S. 269, 272. h, ‘And, if there. W A doubt

_ that a constitutional question was decided baw, ‘that in- .

7 terpretation of. the record will be adopted which will avoid

_the necessity of deciding the constitutional issue. [Arm-

_ strong v. Armstrong, 350 U. S. 568 569; Black v. ‘Cutter

Laboratories, 351 U. S. 292, 299-90, eae : ;

ny of se

313, 320, The substantive law ground upon "which the cause was

décided in.the District Court of Appeal was urged by respondents

_in the. -trial court and was ‘vigorously renewed as a ground. :

_affirmance on appeal. [Supp. R. (Resp.-Br.) 15-24, 78-79.]

‘acceptance of that ground by ‘the state court would precipitate Pe!

constitutional question now posed, that fact was or should have been

known to petitioner’s as soon as the ground was urged. The first.

opportunity, to’ advance the constitutional contention, therefore,

arose in the trial court not Jater than the hearing--at-respondents’

demurrer, The opportunity ptesented. -itself agaig, ‘long ng ~before

+> decision in the District. Court of Ayspeal,. when ‘petitioners filed their

brief in reply to respondents’ presentation. Nevertheless, peti-

tioners remained silent in this regard on each of those occasions,

although they replied at-length to respondents’ point on substantive,

state grounds. They waited until decision had goné against them

in both state courts before suggesting, the existence of a federal

question.

Q

ie ce .

. Petitioners complain that by the acts nad the ee

they have been prevented from pursuing their: respective:

i

" ers was affected. by that conduct.

callings in the hotion picture inddstry; and that this con-

sequence of private action must be remedied by the state.’

‘Petitioners may pursue their calling in one of two ways—

“ by engaging in -it aS independent entrepreneurs; or by ~

_ procuring employtnent from other entrepreneurs such as

respondents. The first alternative has not been. denied,

‘them by any act of ‘respondents or by. the decision below.

The sécond alternative, of course, requires the contractual

concurrence of others, equally possessed with petitioners

of freedom of contragt. In this: respect petitioners -have

been told by the state court only that California leaves the

~ making of such contracts to the interplay of the parties’

bargaining and economic forces.®

Whether this case presents any question. of. ‘state action—to

_which alone, of course, the Fourteenth Amendment applies [Shelley

v.. Kramer, 334 U. S. 1, 13; Civil Rights Cases, 109 U: S? 3, 10-11]

—is a matter which petitioners ignore. [See, .Point III, infra.]

For the purpose .of this part of our argument, however, we may

assume that the conduct complained of is attributable to the state.

*In all accuracy, the decision below did not go even that far.

It only went so far as. to hold that petitioners had no standing

to complain 0 ’ conduct because no interest of petition-

pp. A, 15-17.] Whether

~ one, who has lost an existirg or- prospective employment as. the

result of that conduct, would have a remetly is a question riot in-—

volved or decided below. Even so, we may assume, for purposes

of argument, that petitioners were adversely affected by. respondent's -

agreement and that the state has not provided any remedy in the

premises. Thus we meet head-on the question which petitioners.

discuss, but which is not really in issue here. [Sge, Preliminary

Statement; par. Second, supra.

~

a

ees

- 257, where the cases are rs.

The question ‘whether. a state thay disstivatenaliy oor

such a policy of freedom of contract—or, more , - 2

"whether the state “courts are compelled by the constitution

to reject such a policy—is without subs:antiality. Peti- .

tioners’ argument really comes down to nothing more than |

a complaint that the’ state court’ erroneously declared its.

common law." Even if the: state court did. err -in so

. declaring (but see note 10, supra) no federal question

would exist. The Fourteenth Amendment assures neither —

uniformity sof decision nor freedom from judicial - error.

‘in the’ determination of questions of -local law. [Mil-

“woke Elec. Ry. Co. v. Milwaukee, 252.U.'S.: 100, 106. ]

* First: ‘The. question whether a cause of action in tort

_ Shall be recognized in respect of an agreement by em-

“ployers not to employ persons who have conducted them-

Selves in a-given way is obviously one of local law. [Black

v. Cutter. Laboratories, supra, 351 U. S, at 299; Neblett .

v. Carpenter, 305 U. S. 297, 301-302; American Ry.

Express Co. v. Kentucky, stipra, 273 U, S. at 272-273;

Iowa Central Ry. Co. v: Iowa, 160 U.'S., 389, 393-394.]

The tort of interference with bybiness: vile is not defined

in any: California statute. It is there a creation of the courts, as it

i$. at cornmon law. It was first recognized, in limited scope, . nearly °

seventy-five yéars ago. [Boyson v. Thorn,°98 Gal. 578, 33 Pac.

492.) The early limitations have- now disappeared ; and the. doc-

trine exists in Califarmia substantially in its common law form. -

{Imperial Ice Co. v. Rossier, 18 Cal. 2d 33, 112 P: 2d 631; Speegle

v. Board of Fire. Underwriters, 29 Cal. 2d 34, 172 P. 2d 867.} -

But along with that expansion there was .also recognition of one

basic limit—that it must appear that but for the alleged interference | -

the ‘business relation involved would: have been entered: into’ or

continiied as the case might be. [Campbell v. Reyburn, 129 Cal.

App. 2d 232, 234-235, 276 P; 2d 671, 672.] It was that principle

which: was given effect in the instant case. [Pet., App. A, 9-I J

It is. not 2 pfinciple unique to California; but is one. uniformly

recognized elsewhere. [See, Annotation, 9 AwL. R. 2d 228, 256-

8

t

oO |

‘It is immateria 1 whether ¢ the state court was right or

) wrong on that question. | -An erroneous decision of a

question of local law raises no federal question; and this

Court-is without power to review it. . [Tracy v. Ginsberg, ©

<205 U. S. 170, 177-178; Central Land Co. v. Laidley, 159 .

- U. S. 103,112; McDonald v. Oregon Navig. Co., 233..

U.S. 665, 669-670; Arrowsmith v. Harmoning, 118 U. 8.

194, 196; Gryger v. -Burke, 334 U.S, 728,731.)

. Second: “So: far as the+requirement of ‘due ‘process ‘is

-concernied, arid in the absence of other constitutional re-.

' striction, a state is free to adopt whatever economic policy.

may — ‘be deemed {6 promote public welfare. —

; [Nebbia v. ‘New York, 291 U. S. 502, 537.]

That. is just.as true of policiés which may he thought: to |

‘be reactionary ‘or conservative as it is of those which have.

been challenged because of their supposed radicalism; for

the wisdom or desirability of any given state e policy i is not

_ a matter’ for this _Court’s determination.” [Daniel v. -

Family -Sec. L. Ins. Co., 336 U.S. 220, 224; Lincoln

Federal L. U. v. Nexiiasgners I: & M. Co., 335 U.S.

ae) 536-537. ] To hold otherwise’ would require a re-

_ vérsion to what this Court has called the- “Lochner- -

"” Coppage-Adkins philosophy.” {Day-Brite’ Lighting 0. Mis-

souri, 342 U. S. 421, 423.] But if, as the repudiation of

Bs Amendinent did ‘not enact Mr. Herbert Spencer’s Social

‘Statics [Holmes, ‘J., diss., Lochner. v. New York, 198

oh «3 S. 4, 7h it has also-made certain that the amend- r

ee

»1We assume, when its constitutionality is caJled in question, that .

a ‘rule or doctrine enunciated by a state- court stands on the same.

_footing’as an act of the legislature. [See, Prudential Ins. Co. v.

"Cheek, 259 U..S. 530, 548; Hughes v. — Court, 339 U.'S. ,

460, 466-467.)

: <

a oe |

' that philosophy. ‘has. ‘now: made certain, the Fourteenth —

ment did not adopt any oer comomic of scl Uhory

to which the states must conform.

‘ytaIn its broadest implications; the decision below. was 5 the.

employers. are free to-agree with each othier upon terms

and conditions of employment, one of which may be. em- |

_ ployees’ obedience to appropriate, inquiries of govern- .

imental investigators:* [But see note 9, supra. Tt What-

ever one may think of the wisdom. of that policy, it

-__ ¢learly comes within the wide range of choice open to the —

> state. Freedom of coutract cannot be violative of a con- —

stitutional. provision which guarantees it.

* What California has chosen as its policy i in this sential

is complete freedom of bargaining in réspect of employ-

ment and employment opportunities. * Tt has. elected to :

“rely for the common good on the free-play of conflicting

__ interests and leave conduct unregulated. . . ..”- [Hughes

_v. Superior Court, supra, 339 U.S. at 468.] To be sure,

the state need not have done so. With constitutional

propriety. it might have adopted a more restrictive policy _.

_ which would outlaw ‘agreements’ such as the one. here |

complained of. But the constitution does not compel it

to do so. Or, as this Court, iin another connection, has

‘expressed the same thought, the state “may protect from

the consequences of. competition | but . the Constitution

8California, ‘which early récognized the right of employees to

combine for purposes. of exerting. economic force in bargaining

[Parkinson Co. v. Building Trades Council, 154 Cal. 581, 98. Pac..

. 1027], has also recognized the employers’ right to do the same.

[Speegle v. Board of Fire Underwriters, supra, 29 Cal. 2d at’ 40,

172 P. 2d at 871.]. Does the constitution compel California’ to -

accord a cause of action to.an employer -who has been prejudiced in

some way. by a concerted agreement of employees fixing the terms

and conditions ‘upon which they will work; or does. the .constitu-

tional compulsion which petitioners find extend _ only to” concert

. of action. by —

: —15—

j

does not... _ (Puget Sound 2. & L. 0.9; Seattle,

_ 21 U. S. 619, Ph : :

The fact that the Fourteenth Amendment does not pro-

_' hibit various types of enactments which curtail or ‘re-

"strict freedom of ¢ontract or itidividual liberty does not

mean that the states are inexorably required to make ~

such enactments. Examples to that end are not want--

ing. Thus, a state: ‘may constitutionally prohibit or regu-—

late -Monopolies. That does. riot mean that it is required

to do so. [Nebbia v. New York, supra, 291 U. ‘S:*et -

529; Slaughter House Cases,16 Wall. (83 U.'S.) 36.]

It “may withdraw the in junction from. labor controversies

but no less’ certainly the Fourteenth Amendment does not | :

make unconstitutional | the use of’ the injunction as a2

~ . means. of restricting violence. . . ” [Milk Wagon

_ Drivers U. v: Meadowmoor Dairies, 312 U. S. 287, 295.]:

It may impose upon an employer punitive damages for.

wrongful death without regard ‘to malice, oppression or

personal fault. [Pizite Dry Goods Co. v. Yeldell, 274

U. S. 112. ], But the opposite policy is equally open to it.

[See, Lake Shore & M.S..R. Co. v. Prentice, 147 UsS.

~101.] It may abolish common ‘law doctrines ‘such as the

- fellow-servant rule, contributory negligence and’ assump- .

. tion of.-risk. [New York Cent. R. R. Co. v. White; 243

U. S. 188.]. Yet no-one would argue that it must take

that course. A. state.may permit an injunction to ‘stop 7

7 picketing to compel employment without racial quotas. It:

does not ‘have to go‘so far; and even if it, does-it. need not

forbid voluntary adoption of- quotas by -employers.

|. [Hughes v. Superior Court, supra, 339 U: S. at 464-466,

‘468-469. ] .

- And so with almost every type af regulatory or socio-

economic statute or rule whese constitutionality has been

. i :

I “e

a

upheld. The constitutional right of the states to enact such

..’ legislation or to enforce such rules of law has not been

_ lawful, tueFe is no constitutional right to a Boogie

a

_transfqgmed by the Fourteenth Amendment into a com-

mand that they do so. ay poe

Third: In realistic appraisal, the court below ee n

nore than apply to the. facts at bar the familiar common

law Sectrine. of interference with business relations. [Cases

: cited; mote’ 10, supra.]. There surely’ can be no substance

to a.claim: ahat substantive due process has ‘been denied

by adherence -to such a widely followed rule of the com-

mon law:

Even if the decision represented a departure from the

common law, no substantial’ question of due process would

be raised. The states may still “jy ‘new rights “or

abolish or modify old ones recognized by the common law.

[Silver v. Silver, 280 U. S. 117, 122; New York Cent.

R. R. Co. v. White, supra, 243 U. S. at 198-200, 206;

Wilmington Min. Co. v. Fultgn, 205 U. S. 60, 74.) Hav- ©

ing done ec and. thereby having» made tabi conduct

respect of that conduct. [Senn v. Tile Layers etc.

Union, 301 U. S. 468, 482-483. ]

Fourth: The claim of a denial oi equal protection is

also without substance. CTassification based upon legiti-

mate differences between’ the classes is not prohibited by

' the Fourteenth Amendment. [Jones v. Union Guano-Co.,

264 U. S. 171, 181; New York R. T. Corp. v. New York,

- 303 U. S. 573, 578; Goesaert v. Cleary, 335 . os 464.]

Here, the differences between the classes, are apparent i

and significant. On the one hand are-those who have

an existing or reasonably prospective employment or

business relation. On the other are those who do not. The

~ former have a cause of action for unjustified interference .

(?@

a)

_ with that employment or felation, because they have an

_ immediate or existing interest which is affected to their

detriment by the interference, * The others do not have a |

cause of ‘action because no such interest is affected: and

because, therefore, no.injury or damage has been done

-xthem. To make the existence of a cause of action d d..

“on whether some interest of the. plaintiff has been in

. juriously affected by the conduct of the defendant, is not

only proper classification; it is to apply to the instant

situation. the usual and ‘universal criterion which dis-

tinguishes the moot or academic controversy from those .

of which courts will take cognizance. roe a

Even if it be said that the facts bring petitioners within _ -

the class of those who have an existing or prospective

‘interest, they have: been deprived of né constitutional rjght

by the decision below. We would then have only an

erroneous application of a correct principle of taw to the

facts. Such error in a matter of local law is not a denial

of equal protection. [Worcester County Trust Co. v..

Riley, 302 U. S. 292, 299; Milwaukee Elec. Ry. Co. v.

Milwaukee, supra, 202. U: S. at 105-106. See also, the

cases last cited Point II,. First, ‘supra. |

Fifth: A ‘major fallacy in petitioners’ argument is

that. they are arguing a question which was not and did

_ not have to be decided. _[See, Preliminary Statement, par.

Second, supra. | ~ Another fallacy is that their argument

‘necessarily. assumes that a ‘policy of anti-monopoly and

restricted freedom of choice of one’s employees has been

made a ‘constitutional absolute which everyone—private

citizen as well as the state—must adopt and enforce. All .

this has been set forth at length above. An additional”

word or two may be said about some of petitioners’

_ specific contentions. ; .

a"

The right to pursue. a calling i is, of course, one of the

liberties protected by the Fourteenth Amendment against

arbitrary state action.. But that right does not impose

_ upon anyone else, with an equal right to ‘pursue his

private business, the duty to employ one whose calling

requires employment’ by another. The right to work

-is not the right to work for any specific employer. [Cf.,

McAuliffe v. Mayor, 155 Mass. 216, 29. N. E. 516,

‘Holmes, a writing for. the court. Cf., also. the position —

of amicus curiae in the case.at bar with that taken by it

a short time ago in protesting the discharge of an actress.

At that time, as quoted in one of its own reports (Miller,

The Judges and the Judged, p. 18), the A.C.L.U. said

that the actress had “no constitutional right to appear

in a given dramatic production. ]

The short .of the matter is that conduct of the ‘sort

here complained of has not been made unlawful by the —

state. That it could have been made unlawful we need

not deny. No doubt some, perhaps many, persons believe,

as a matter of policy, that ‘:t should be. - Petitioners’

ae is nothing but a marshaling of reasons support- ©

ing such a policy. «But the choice of policy was and is:

a matter for the appropriate department of the state

government. It is not for the Federal courts to make:

or unmake the state’s policy in this regard. Nor ‘has the

Congress—assuming. it had the requisite power [but- see,

Civil Rights Cases, supra, 109 U. S. 3]—attempted to

do sd. The Civil Rights Act [18 U.S. C., Sec. 241] cer-

~ tainly does not. It is applicable solely to rights and priv-

ileges created and secured by the constitution against

iets

: private interference ; not to those, such as Fourteenth

Amendment rights, which are constitutionally secured

only against state interference. [United States v. Wil-

liams, 341 U. S. 70, 77-78; United States v. Cruickshank, . :

92 U.S. 542,.551-555; Hodges 4. United States, 203 U. S.

1, 1420)

No doubt the self-incrimination privilege sabia — the

Fifth Amendment ‘is’ safe against restrictions or en-

croachments ‘by the states or even by the Federal govern-

ment. But private reactions which resort to that privilege

may induce are quite another matter. The constitution |

- secures to an individual free use of the privilege, in order

that criminal charges’ against him shall be proved by

- evidence other than his own, [See, Quinne-v. United

States, 349 U. S. 155, 161-162.] It does not, and gov-

ernment need not, attempt to secure him against social

7 disfavor ‘or. economic disadvantage which its use may.

produce. [See, Ullman v. United States, 350 U. S, 422,

430-431, 454.] Here, again, it may. well be within the

"range of permissible state or Federal policy to attempt

to protect against those practical and private consequences. —

As: yet, the policy-making branches of gov ernment have

not seen fit ‘to do so. . ies

Sixth: The feregoing criticism is equally spilivetle to

‘the brief of amicus curiae. An additional appropriate com- _

ment upon that brief is that it is wholly irrelevant. It

consists, in part, of a discussion of a question—te., ap- —

plicability of the guaranty of free speech—which even

the petitioners do not seek to raise. It is not the office

of an amicits curiae to inject new or different questions _

into a case. [Moffatt iene Imp. Dist. v. Denver &

&.. £.. Ry. (10 -Cir.), 45: ¥. 2d 715, 722, cert. den. 283

_U. S. 837.] For the remainder, the brief. is merely a

melange of isolated, extracts from various published. ar-

ticles purporting, mostly by hearsay, to relate facts as to _

- the operation of a so-called “blacklist” in the motion pic-

ture industry. We assume, however, that. petitioners

-have pleaded all of the relevant facts applicable to their

‘situation. [See, Faulkner v. California Toll-Bridge Auth.,

"supra, 40 Cal. 2d at 328, 253 P. 2d at 666.] We assume ©

further that the cause will be decided here, as it was

below, on the facts in the record.

| ~ |

Petitioners Invoke the Fourteenth Amendment to Pro-

‘scribe Private Conduct, Whereas the Amendment.

Is Applicable Only to State Action. Thus, No_

Proper Question Under the Constitution Is

Presented.

Axiomatically, the guaranties ofthe Fourteenth Amend-

ment protect only against state action, not private conduct.

- [Shelley v. Kramer, supra, 334 U. S. at 13; Civil Rights

‘Cases, supra, 109 U. S. at 10-11] No state action is

involved in the instant case. The entire complaint of

petitioners—their argument as well as that. of amicus.

curiae—rests on the asserted discriminatory nature of,

and .the. economic consequences flowing from, respondents’

voluntary adherence to-a private agreement.

But, there is a wide gap, which petitioners and amicus

curiag fail to bridge. between voluntary adherence to a

—21— ~

private agreement and the coercive enforcement of it

by the state."* The Fourteenth Amendment -ferects no

shield against merely private conduct, however discrimina-

tory or wrongful.” [Shelley v. Kramer, supra, 334 U. S..

at 13.] “ . . Soong as the purposes of these agree- | ;

ments are effectuated by voluntary adherence to their

terms, it would appear’ clear that there has been no ac-.

tion by the State and the provisions of the Amendment

have not been violated. . . .” [Ibid. See, also, Barrows

vy, Jackson, 346 U. S. 249, 253 and, compare, Hughes v..

_ Superior Court, supra, 339 U. S. at 468-469.] At bar the

state has not enforced the alleged wrongful agreement, |

compelled adherence to it, or imposed sanctions for a

failure to perform it. It simply has not. acted to make

execution of or voluntary adherence to such agreements

unlawful, ee 8 Shelley: v. Kramer, supra, 334 U. S. ;

at 19.] It follows that’ ‘there is not involved. in this case

any state action infringing any constitutional right to:

work or abridging freedom of speech or curtailing the

self-incrimination privilege. For that matter, there is

not involved any state action whatever—and it is only in

respect of -such ‘action that the Fourteenth Ameridment

-may be invoked. 3

138The decisions upon which petitioners and amicus curiae mainly ©

rely were all concerned with direct and affirmative action by the

state. [See, e.g., Takahashi v. Fish & Game Commission, 334 U. S.

410 (statute prohibiting fishing licenses to persons ineligible to

citizenship) ; Truax v. Raich, 239. U. S. 33 (state constitutional ;

provision requiring employment of large -proportion of ‘hative-born

citizens) ; Smith v. Texas, 233 U. S. 630 (statute fixing arbitrary |

requirement as condition of eligibility to act as train conductor ).].

,

No federal question. was decided below. None 1 was _

seasonably raised. The.one which i now songht to be

raised is not substantial, going, ‘as’ it does, to the state’s

choice of competing policies rather than to any real limi-

tation on the state’s power; and involving only: private

conduct rather than: State action. The petition for a

wet, of certiorari should_be-denied.- eoiaae tS IE Sd

Respectfully submitted,

Bony tie "Irvine M. WALKER,

Herman F. SELvin,

Attorneys for Industry Respondents.

| - Guy RicHarps Crump, 7

' Attorney for Respondents Wood, Walter, .

-- Moulder, Doyle, Frasier, Velde, Kearney,

~~ Jackson, Potter, Russell and Wheeler. —