Petition for Rehearing — Verhaagen v. Reeder (No. 603)

FILED

JUN 2 1 1957

Supreme Court of the United States

OCTOBER TERM 1956

No. 603

H. L. VERHAAGEN, JAMES E. CROSS, JR.,

C. F. GRIFFIN, S. R. BAZEMORE, A. H. CAR-

ROLL, WILLIAM C. ELLIS, and L. H. DUNN,

Appellants

V.

SHERWOOD REEDER, City Manager of the City

of Norfolk; CALVIN H. DALBY, Director of Pub-

lic Safety of the City of Norfolk; W. J. LEWIS, Chief

of the Norfolk City Fire Department,and CITY OF

NORFOLK, a municipal corporation,

Appellees

PETITION FOR RE-HEARING

Louis B. FINE

Attorney for Petitioners

HOWARD I. LEGUM

P. B. WEST

JERROLD G. WEINBERG

LOUIS H, COHN

HENRY M. SCHWAN

Of Counsel

National Bank of Commerce Building

Norfolk 10, Virginia

BASIC FACTS

ARGUMENT

CONCLUSION

TABLE OF CASES CITED

Government and Civic Employees Organizing

Committee, C.I.0. v. S. F. Windsor, et als,

Docket No. 423

Slochower v. Board of Higher Education,

350 U. S. 551, 555

Thomas v. Collins, 323 U. S. 516, 539

Wieman v. Updegraff, 344 U. S. 183, 191...

SECONDARY AUTHORITY

Patterson, The Forgotten Ninth Amendment.

IN THE

Supreme Court of the United States

OcTOBER TERM 1956

No. 603

H. L. VERHAAGEN, JAMES E. CROSS, JR.,

C. F. GRIFFIN, S. R. BAZEMORE, A. H. CAR-

ROLL, WILLIAM C. ELLIS, and L. H. DUNN,

Appellants

¥,

SHERWOOD REEDER, City Manager of the City

of Norfolk; CALVIN H. DALBY, Director of Pub-

lic Safety of the City of Norfolk; W. J. LEWIS, Chief

of the Norfolk City Fire Department,and CITY OF

NORFOLK, a municipal corporation,

Appellees

so

PETITION FOR RE-HEARING

Your petitioners, H. L. Verhaagen, James E.

Cross, Jr., C. F. Griffin, S. R. Bazemore, A. H. Car-

roll, William C. Ellis, and L. H. Dunn, respectfully

pray for re-hearing of the Order of this Court dated

May 27, 1957, denying their petition for a Writ of

Certiorari to the Supreme Court of Appeals of Vir-

ginia.

BASIC FACTS

This is a suit by certain firemen who are associated

with an organization known as the Norfolk Fire

Fighters Association, Local 1214, affiliated with the

International Association of Fire Fighters to restrain

the City of Norfolk, Virginia, from carrying into effect

a regulation of the Fire Division of the City of Norfolk

prohibiting firemen from joining or retaining member-

ship in any firemen’s organization affiliated, or in any-

way connected, with any organization outside of the

Division of Fire of the City of Norfolk, Virginia.

ARGUMENT

Petitioners assign the following reasons for grant-

ing this petition:

1. Subsequent to the filing of the petition for a

Writ of Certiorari, the Supreme Court of the United

States decided the case of the Government and Civic

Employees Organizing Committee, C.1.0. v. S. F.

Windsor, et als, Docket No. 423, on May 13, 1957. In

that case, the Supreme Court of the United States re-

manded the case to the District Court with directions

to retain it on the docket until the appellants had ex-

hausted their remedies in the State Courts of Alabama.

On the constitutional question whether the State of

Alabama can exclude a government employee, working

as a clerk in a state operated liquor store, from further

public employment solely because of membership in a

labor union, the District Court for the Northern Dis-

trict of Alabama, Southern Division, had dismissed the

case with prejudice.

The issues in the case, it is submitted, are identical

to the issues in the case of the Government and Civic

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Employees Organizing Committee, C.I.0. v. S. F.

Windsor, et als, Docket No. 423, which the Supreme

Court of the United States considered of such impor-

tance as to remand it to the District Court for retention

on the docket for further consideration as to the con-

stitutional questions raised therein. The only difference

in the two cases is that the plaintiffs in this case are

firemen and the plaintiff in the Alabama case is a clerk

in the state operated liquor store.

The reasoning in the opinion of the Government

and Civic Employees Organizing Committee, C.I.O. v.

S. F. Windsor, et als, Docket No. 423, as to the consti-

tutional questions involved applies to the constitutional

questions in this case and, it is submitted, amounts to

intervening circumstances of substantial or controlling

effect required by Rule 58 of this Court.

2. A substantial ground available to petitioners

and not raised in the petition for a Writ of Certiorari

is the privileges and immunities clause of the Four-

teenth Amendment of the Unted States Constitution.

The Fourteenth Amendment of the United States Con-

stitution recites that no state shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States. The First Amendment

of the United States Constitution recites that Congress

shall make no law abriding the right of the people

peaceably to assemble.

In Thomas v. Collins, 323 U.S. 516, 539, the Court

said:

“lawful public assemblies, involving no ele-

ment of grave and immediate danger to an interest

the state is entitled to protect, are not instruments

of harm, ... And the right either of the workmen

or of unions under these conditions to assemble and

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discuss their own affairs is as fully protected by

the Constitution as the right of businessmen,

farmers, educators, political party members or

others to assemble and discuss their affairs and to

enlist the support of others.”

In Slochower v. Board of Higher Education, 350

U. S. 551, 555, the Court said:

“The problem of balancing the State’s interest

in the loyalty of those in its service with the tradi-

tional safeguards of individual rights is a continu-

ing one. To state that a person does not have a

constitutional right to government employment is

only to say that he must comply with reasonable,

lawful and nondiscriminatory terms laid down by

the proper authorities.”

In Wieman v. Updegraff, 344 U. S. 183, 191, The

Court stated :

“For in United Public Workers, though we

held that the Federal Government through the

Hatch Act could properly bar its employees from

certain types of political activity thought inimical

to the interests of the Civil Service, we cast this

holding into perspective by emphasizing that Con-

gress could not ‘enact a regulation providing that

no Republican, Jew or Negro shall be appointed

to federal office, or that no federal employee shall

attend Mass, or take any active part in missionary

work.’ 330 U. S. at 100. See also In Re Summers,

325 U. S. 561, 571 (1945). We need not pause to

consider whether an abstract right to public em-

ployment exists. It is sufficient to say that consti-

tutional protection does extend to the public

servant whose exclusion pursuant to a statute is

patently arbitrary or discriminatory.”

The constitutional questions in this case are of

great importance. The Supreme Court of the United

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a ee eer ae eee —

States has recognized this importance by vacating the

Order of the United States District Court in the case

of the Government and Civic Employees Organizing

Committee, C.1.0. v. 8. F. Windsor, et als, Docket No.

423. In addition, the constitutional question of the right

of the firemen peaceably to assemble, it is submitted,

should be decide by this Court.

3. It is the petitioners’ belief that tc deny a Writ

of Certiorari is error in the following respects:

(A) It denies to firemen the right peaceably to

assemble.

(B) It holds the Norfolk Fire Fighters Associa-

tion, Local 1214, as a union as a matter of law, when

in fact (which is uncontradicted) and in law, it is not

a union.

(C) It denies to the petitioners the privileges as

guaranteed under the Ninth Amendment of the United

States Constitution.

(D) It applies the rationale of the antiquated and

feudalistic reasoning of discipline to an organization

merely because they are firemen (when said firemen

are specifically associated for their mutual benefit and

are EXCLUDED from striking and bargaining for

wages).

As toltem A:

It can be stated with accuracy that the right to

peaceful assembly is unquestioned. (Thomas v. Collins,

supra). Is the fact that they are firemen eo nomine “a

grave and immediate danger”? The transcript and the

record are without misapprenhension. It is simply this:

There are a number of firemen associations in these

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United States and Canada. In fact there are firemen

associations in Virginia in the Cities of Newport News,

Petersburg, Portsmouth, Richmond and Roanoke. Are

not firemen possessed of the same privileges as members

of the bar, nurses, and physicians?

There is no evidence of “grave and immediate

danger.”

As to Item B:

Cases cited by the appellees do not apply to the

facts here. The petitioners are not a union, legally

speaking. Why? Because they have no right to’strike or

to bargain collectively. In fact, the Constitution of the

Association forbids the right to strike.

The brief of the City of Norfolk admits this and

adds ah, that is the next step. This Court will not decide

a case on “what will be”, but on the record and facts.

Actually, we do not believe that this Court is

troubled by this factual question, in view of the uncon-

tradicted testimony on this point, as it is by the legal

question.

As to Item C:

The Ninth Amendment to the Constitution states

that there are certain unenumerated rights that are re-

tained by the people which are the inherent natural

rights of the individual.

In Patterson, The Forgotten Ninth Amendment

(1955), it is said:

“It might be said that the theory of individual

inherent rights is a part of our unwritten Consti-

tution, in the same manner in which portions of

the unwritten English Constitution are recognized

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and enforced. But we feel that it is much more

than the unwritten Constitution; the individual

inherent rights and liberties antedate and are above

constitutions and may be called pre-constitutional

rights.

“This idea has been aptly expressed in 16

C.J.S. page 578, paragraph 199, as follows:

‘The Constitutions are not the sources of our

personal rights. Our theory of government is that

the people, in full possession of inherent, inalien-

able rights, have formed the government in order

to protect these rights, and have incornorated them

into the organic law as a shield against unwarrant-

able interference by any department of govern-

ments.’

“Tohn Adams, the second great President of

the United States, assured the people as follows:

‘You have rights antecedent to all earthly gov-

ernments; rights that cannot be repealed or re-

strained by human laws; rights derived from the

Great Legislator of the Universe.’

“In Gow vs. Bingham, 107 N.Y.S. 1011 (Su-

preme Court of New York), the court held that

we possess certain rights which have their origin

as natural rights independent of any express pro-

vision of law, and that constitutional provisions

are not the sources of these rights. The right ‘to be

let alone’ was one of the rights sustained by th

court.

“In a relatively recent decision of the Su-

preme Court of Texas (Spann vs, City of Dallas,

111 Texas 350, 212 S.W. 513) this same confidence

in natural rights is expressed:

‘To secure their property was one of the great

ends for which men entered into society. The right

to acquire and own property, and to deal with it

and use it as the owner chooses, so long as the use

harms nobody, is a natural right. It does not owe

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its origin to constitutions. It existed before them.

It is a part of the citizen’s natural liberty—an ex-

pression of his freedom, guaranteed as inviolate

by every American Bill of Rights.’

“In City of Pineville vs. Marshall, 299 S.W.

1072, 222 Ky. 4, by the Court of Appeals of Ken-

tucky, the court held that:

‘While the Bill of Rights declares and secures

certain inherent rights, it does not create them, nor

does it license an individual to ignore and defy the

correlative rights of other individuals or of so-

ciety.’

ae ae eee ee

“It is no criticism of the Supreme Court of

the United States that the Ninth Amendment has

not been construed. The question has simply never

been presented to that Court for review”... .

* * 7 * oo *

“(1) Opinions of the Supreme Court of the

United States beginning with Eilenbecker vs. The

District Court of Plymouth County, Iowa, 134

U. S. 131, 33 L. Ed. 801, definitely show that only

the first eight amendments to the Constitution were

intended to be narrowly construed as inhibitions

upon the National Government. Since the decision

of this case in 1890, the Suprerae Court of the

United States nas abandoned the dust-covered

dictum that the first ten Amendments to the Con-

stitution were intended as restrictions upon the

National Government, and now holds that only the

first eight amendments were so intended. Since the

decision of the Eilenbecker case, there has been no

decision of the Supreme Court of the United States

and no dictum which has adhered to the old text.

The mechanical error in the case of Livingston vs.

Moore definitely establishes that it is no precedent

or authority for the narrow construction of the

Ninth Amendment.

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“Therefore, the Ninth Amendment is un-

shackled from its early erroneous classification and

the cloud has been removed, and it is now ready

for use any time our courts or our people may dis-

cover an unenumerated human right.

“(2) Our constitutions are not the sources of

our liberties, In Calder vs. Bull, 3 Dallas 386,

1 L. Ed. 648, and in Savings and Loan Association

v. Topeka, 87 U. S. 686, 22 L. Ed. 455, cited also

in the next succeeding chapter, the Supreme Court

of the United States has recognized the doctrine

of inherent human rights which are entitled to

protection against the legislative acts of the several

states, even though such rights may be unenumer-

ated in the Constitution of the United States. These

cases proceed upon the theory that there are rights

in every free government which are beyond the

control of state governments. These cases recog-

nized the doctrine of the implied reservation of

individual rights. This is the doctrine of the Ninth

Amendment. Although the decision of Calder vs.

-Bull has been questioned, these cases have been

cited manv times with approval, and we do not

find any decision which has overruled or distin-

guished the holding in these cases.

“These decisions can be construed in no other

way except to establish that inherent rights,

whether enumerated in the Constitution of the

United States or not, are entitled to protection, not

only against the Federal Government, but also as

against the government of the several States.

=a ee SS

“We either believe in inherent human rigits,

or we do not believe in them; if we believe in such

inherent rights, then such rights must be protected

against the unwarranted power of either the Na-

tional or the State Governments, otherwise they

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fail and cannot be classed as an inherent right at

all.

eS oe. Se -we * SS

“In Green vs. Frazier, 253 U. S. 233 (240),

64 L. Ed. 878 (881), 40 S. C. 499, The Supreme

Court followed the opinion of Justice Miller, but

has used the due process clause in the Fourteenth

Amendment as the basis of its decision; however,

Justice Miller, speaking for the Court in Savings

and Loan Association vs. Topeka, made no men-

tion whatsoever of the Fourteenth Amendment or

any other amendment, or any portion of the Con-

stitution, but the Court’s decision was based solely

upon the existence of certain fundamental rights

which were beyond the control of the State.

S. @.8,~-R: 2 > *

“At the time of the adoption of the Constitu-

tion it was commen practice in several of the

States that a person convicted of crime should be

branded with a branding iron as an outward proof

of his iniquity. No court would tolerate such a

practice at this time, even though it was not con-

sidered cruel and unusual punishment at the time

of the adoption of the Constitution.

“At the time of the founding of this Govern-

ment, there was still wide-spread belief in witch-

craft, and statutes of some of the States punished

its practice. After a hundred and sixty-five years

of enlightment, would we now tolerate the punish-

ment of any individual for witchcraft?

SS “2 ee .). &@

“ . . We do not.believe that it was ever in-

tended that the science of the law should become

so fixed and archaic, while all other sciences may

go forward in the discovery of truth and may

utilize it wherever it is found. We should not at-

tempt to harness our rights to a civilization as it

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existed one hundred and sixty-five years ago, and

it was not the intention of the framers of the Bill

of Rights that we should do so.

eek, AS a, a SE

“Some of the rights may now be making their

appearance.

“The right of privacy may be such a right. If

there is such a right, it is difficult to classify it

under any right that is enumerated in the Consti-

tution. This is a right which is of comparatively

recent recognition. Some courts call it a funda-

mental right. While the courts seem to feel that it

should exist, there is a great timidity and lack of

forthrightness in the protection of this right, be-

cause its existence is not to be found in the written

and enumerated law.

“There are many questions surrounding our

labor problems that might appropriately come

under the classification of rights of natural en-

dowment. Do men have a natural or inherent right

to strike? Does an employer have the right or

privilege to choose those whom he desires as em-

ployees, or can such employer be forced to employ

against his will? Is there a fundamental right to

work?”

CERTIFICATE OF SERVICE

I, Louis B. Fine, counsel for petitioners, do hereby

certify that the foregoing petition for re-hearing filed

in this case is presented in good faith and not for delay.

Louis B. FINE

Counsel for Petitioners

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As to Item D:

The hereinabove discussions for A, B, and C are

applicable. In such a case as this civilization and society

in a democratic form of government will permit fire-

men to associate with each other after duty.

CONCLUSION

For the foregoing reasons, the petitioners believe

that this Honorable Court, even if it should adhere to

its present result, may be desirous of having its opinion

and expression on the subject for posterity. This case is

a test case, upon which many other cases must rely (and

for which other municipalities may enact similar orders

of severance by an individual; e.g. such as the Fire

Division). In some ways, it is a case of first impression,

and the decision, however rendered, will constitute, a

land mark in Constitutional law and a judicial prece-

dent of the highest importance.

Louts B. FINE

Counsel for Petitioners

HOWARD I. LEGUM

HENRY M. SCHWAN

Of Counsel

National Bank of Commerce Building

Norfolk 10, Virginia