Brief of Respondents in Opposition to Petitioners Petition for Writ of Certiorari — Roberts v. Love (No. 253)

SEPAEME COURT OF THE EMILE SEAGES

. OCTOBER TERM, 1960

No. 253

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITIONER'S PETITION FOR WRIT OF CER

TIORARI

Attacker Sent

To Hospital

For Observation

Through a legal technicality,

Jadge G. B. Colvin, Jr., Tuesday

was forced to send A. C. Duncan,

admitted. culprit in an attempted

rape case here, to the State Hos-

pital for 30 days of observation.

- Duncan's hearing before Judge

Coivin was held Tuesday evening,

and Paul K. Roberts, Warren at-

terney, was appointed as the Ne-

gro’s lawyer.

When Duncan was asked to

make a plea of guilty or not guil

ty, Attorney Roberts arose ai«

made a motian that he “he sent

to the State Hospital for obser-

vation. Roberts said he thought

the Negro might be insane.

Prosecuting Attorney A. James

Linder of Hamburg asked -Rob-

erts if he really thought that or

if he was ‘‘grasping for straws:"’

Roberts the Court that

he felt the Negro might be insane.

Judge Colvin deliberated about

the matter for several minutes

before granting Roberts’ motion,

he told those t that

under law, he was forced to do

it. .

At the start of the hearing, a

representative of this newspaper

received the permission of Judge

Colvin to take candid camera

pictures while the hearing was

going on. After court started.

however, Attorney Roberts raised

an objection to the photograph-

er's being allowed to take pic-

window, and attempted to ak

a high school senior girl. He said

he wasn't being forced or coerced

into making the statement, but

that he was, making it of his own

free will.

-

INDEX

. Brief of Respondents in Opposition to Petitioner's

Petition for Wri: of Certiorari

Error In Petitioner’s Statement of Question Pre-

sented

Factual Statement :

A Trial By Jury In A State Is Not A Privilege Or

Immunity Of National Citizenship aaa ht

The Petition Presents No Federal Question.

If Federal Question Is Presented It Wat Not Timely

Nor Properly Made

TasLe or (Cases

° Cases Cited

American Publishing Co. v. Fisher, 166 U.S. 464; 41

Se L. Ed. 1079

American Surety Co. v. Baldwin, 287 U.S. 155 at p.

164; 77 L. Ed. 231 at p. 236

Black v. Cutter Laboratories, 351 U. S. 292; 100 L.

Ed. 1188

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281

U. S. 673, 74 L. Ed. 1107

Bute v. Illinois, 333 U.S. 639 at p. 659; 92 L. Ed. 986

an at p. 996 :

Crowell v. Randell, 10 Pet. (U.S.) 368: 9 L. Ed. 458

McGarritty Adm. v. Delaware River Bridge Commis-

sion, 292 U. S. 19 at p 20; 78 L. Rd. 195 at p.

1096 .

Minnesota v..National Tea Co:, 309 U.S. 550: Ante

tation; in 84 L. Ed. 920 at p. 927

Raley v. Ohio, 360 U.S. 423 at p. 455, 3 L. Ed. (2)

1344 at p. 1353

Stein v. New Fork, 346. U.S. 156 at p. 179; 97 L. Fad.

1522 at p. 1539 -

Joseph A. Walker v. Charles S. Sourinet,.92 U.S. :;

23 L. Ed. 678

Williams v. Katser, 323 U.S. 471, 89 L. Ed. 398, 65S.

Ct. 363

—1785-5

. kere eee, Cane.

Page

ii INDEX

C‘onstitution

Amendment Five, United States Constitution

Ainendment Seven, United States Constitution

Amendment Fourteen, United States Constitution

Article 2, Section 8, Constitution of Arkansas

Statutes

Arkansas Statutes 27-1115

Rules

Rule 20, Rules of Supreme Court of Arkansas

cal

IN THE

. -SUPHEME COURT OF THE UNITED STATES

OCTOBER TERM, 1960

No. 253

PAUL K. ROBERTS,

Petitioner,

e's. °

W: L. LOVE, JAMES MOSELEY, ©. K. LITTLEFIELD,

JAMES WHITE asp MARION WHITE, a fautrsyersuir,

D B/A THE LAGLE PUBLISHING Company, AND ROBERT

L. NEWTON,

Respondents

oo

BRIEF OF RESPONDENTS IN OPPOSITION TO

PETITIONER’S PETITION FOR WRIT OF CER.

TIORARI

Petitioner herein seeks a Writ of Certiorari to the Sn-

preme Court of Arkansas to obtain review of a judgment

of that Court affirming a judgment of dismissal of the above

entitled action entered by the Circuit Court of Bradley

County, Arkansas, upon Respondents’ Demurrer to Peti-

tioner’s Complaint and Amendment thereto. Both of said

Courts held that Petitioner's Complaint) and Amendinent

thereto failed to state a cause of action for libel.

Petitioner's Petition must be denied because no federal

(1)

ym

2

question is presented herein, and even if any federal ques.

tien is presented the same was.not timely and properly

raised, in the Court below. | .

Because it is thought it will be helpful to this Court,

before discussing the jurisdiction of this Court and Peti-

tioner’s contentions herein, an error in Petitioner's Peti-

tion is first noted and a brief statement is made of the

pertinent facts out of which this litigation arose.

Error in Petitioner's Statement of Question Presented

In Petitioner's statement, of question presented to this

- Court, it is said:

“The Trial Court and the Supreme Court of Arkansas

sustained the Motion to Strike and the Demurrer and

dismissed the Complaint.”

This statement ig*partly in error, While the Trial Court

and the Supreme Court of Arkansas both sustained Re-

spondent’s Demurrer to “Petitioner's Complaint and

Amendment thereto, the: Supreme Court did not sustain:

Respondent's Motion to Strike as the Trial Court had done.

On this point the Supreme Court of Arkansas said:

‘While we think it immaterial in this litigation, we

agree with Appellant that the Court erred in striking

paragraphs ta, b, e, d and e. 7a article, obviously,

cannot be classed as libelous per ses Any alleged-libel,

therefore, required innuendo beantiun the libelous

sense in which the words were intended. . We

therefore, in reachirg. our determination of whether

the article was: libelous, consider each averment in

Appellant's Complaint’? (Petitioner's Petition for

Writ, pp. i1, 12.) .

3

Factual Statement

On September 12, 1959, Petitioner commenced his action

for alleged libel against Respondents in the Cireuit Court’

of Bradley County, Arkansas. The news artiele of which

Petitioner complained was written by an Employee, Robert

l.. Newton, and pub¥ished in the weekly edition of The

Kagle Demoerat, a county newspaper owned ‘by the Re-

spondents, Love et al. The complaint. set out the news

article in full and in paragraphs 4a, b, cd & e there were

alleged Petitioner's interpre tations of the objective réport

of a newsworthy incident ina loeal courtroom, Petitioner's

conclusions in his. Complaint were that. the story was’

slanted and maliciously designed to defame Appellant’ :

reputation, The article started with these words:

Throngh a legal technicality, Jule | a a ‘olvi in, Jr.

Tuesday, was forced to send A.C. Dunean. admitted

culprit in an attempted rape case ‘here, to the State

Hospital for 30 days of observation, Duncan's hearing

before Judge Colvin was held Tuesday evening, and

Paul K. Roberts, Warren Attorney was appointed as

the Negro's lawyer. When Dunean was asked to make

a plea of enilty or not guilty, Attorney Roberts arose

and made a motion that he he sent to the State Hospital

for- observation, Roberts said he thought the Negro

might be insane."* (See Petitioner's Petition for Writ,

p. 9, and, the entire article printed on the front pase

of The Eagle Democrat—a photo print of whieh is

pasted within the fly cover cof this Brief),

In ahe Trial Court and Supreme Court of Arkansas.

Petitioner contended that because «the use of the term

‘leval technicality’, Which he alleged to be false. the eorn-

plexion of the entire content of the article was Changed.

He further contended that. the teri “Texal technicality’

denotes to the publie mind ‘*chicanery"’ implies that one

prevails, not hecause of right, but rather through trickery:

4

in other words, that justice was thwarted by unfair meth-

ods. Petitioner does not contend that an¥ paragraph of

tie news article is false except the first paragraph in its

use of the words ‘‘legal technieality.”’

In the Trial Court, Respondents filed a Demurrer to

Petitioner's Complaint and Amendment thereto on the

_ ground that no cause of action for libel was stated therein.

Also, Respondents filed a Motion to Strike the paragraphs

of the Complaint stating Petitioner's interpretations of

the news article were erroneous. The Trial Judge, who

was presiding over the Court when the incident reported

in the news article oceurred, also, conducted the hearin

on Respondent’s Demurrer and Motion* te Strike Peti-

_ tioner's Complaint for the alleged libel. After full hear-

ing, the Trial Court sustained the Demurrer and Motion

to Strike and dismissed the suit on the ground that no

cause of action for libel was stated. On appeal to the Su-

preme Court of Arkansas by Petitioner, after briefs wete

filed and oral arguments were heard, the Appellate Court

affirmed the judement of the Bradley Circuit Court th sus

taining the Demurrer and in dismissing Petitioner's suit.

‘Also, the Supreme Court of Arkansas denied Petitioner's

Petition for a Rehearing. ie

Petitioner's Petition for Writ of Certiorari to the Su-

preme Court of Arkansas to obtain review of the judgment

of that Court affirming the judgment of dismissal of the

above claim in the Cireuit Conrt of Bradley County, Arkan.

sas, niust be denied for the following reasons:

(1) The States are left to regulate trials in their own,

Courts and a trial by jury in suits at common law pending

_in a State Court is not a privilege or immunity of Ameri-

ean citizenship: (2)<no federal question is presented in

Petition of Petitioner: and, (3) if any federal question is

5

presented, it was not timely and properly raised in the

Court helow. -

A Trial by Jury in a State is Not a Privilege or

Immunity of National Citizenship

ment. Five to U.S. Constitution (an “American citizen can-

not be deprived of life, liberty or propefty without due

. process of law), Amendment Seven (right of trial by jury

in suits at common law in any Court of the United States),

and, Amendment Fourteen (ne State shall deprive a person

of life, liberty Or Prope rtv without due process of law nor

deny to any person the equal protection ef the laws), he has

been denied due process by State action in the fhilure te

‘allow to him a jury trial in a State Court on his claim of

being Jibellest.

Petitioner further says he was denied of a coistitutional

right as an American citizen to have his allecations of ibe

tried by a jury because of Article 2, Section 8, Constitution

of Arkansas (securing protection to one against crimina!

charges). 2

- On April 24, 1876, this Court decided in Jose ph A. Walker

Vv. Charlgs S. Saurinet, 92 US. 902 25 L.Ed. 678, wherein

judgment was rendered in a State Court against Walker.

by the Judge ‘in a suit for damages after a jury had failed

te agree and under a Statute vesting that power of ad judi-

cation in the Judge, that **A State cannot deprive a person

of his property withont due process of law; but this does

not necessarily imply that all trtal< in the State Courts

affecting the property of persons must be by jury. This

requirement of the Constitution ix met, if the trial is had

according to the <eitled COUTSe of judicial proceedings. ala

Due process of law is. proeess due according to the law

of the land. This process in the States is regulated by

the law of the State. Our power over that law is only to

Petitioner contends that as guaranteed to him by Amend- |

6

determine whether it is in contlict with the Supreme law

of the land. That is to say, with the Constitution and

claws of the United States madé in pursuance ‘thercef, or

witli any treaty made under the authority of the United

States. Art. VI Const. Here the State Court has decided

that the proceeding below was in accordance with the law

of the State; and we do not find that to be contrary to the

Constitution or any law or treaty of the United States.”

Walker v. Sauvinet has been cited in- 25 Federal cases

and in 19 State Court decisions aecording to Shepard

Citator. It has not been overruled. It was distinguished in

American Publishing Company vi: Fisher, 166 U.S. 464,

41 L. Ed 1079 dealing with a territorial act in Utah. The

ease is cited in Bute v. TMlinois, 338 U.S. 689 at page 659,

92 LL. Ed. 986 at. page 996, and Stein ve New York, 346 US.

J56 at page 179, 97 L. Bd. 1522 at page 1559.) In the Stein

ease, this Court said:

**The States are free to allocate functions between

judge and jury as they see fit.”

Certainly, a function and power of a Trial Judge under

the Statutes in Arkansas when a Demurrer to a Complaint

raises the question that no cause of action is stated is to

decide that issue of law after treating the facts as well

pleaded to be true. See, Arkansas Statutes 27-1115.

The Petition Presents No Federal Question

Review by the Supreme Court of a judgment of a State

Court requires that it appear from the record affirmatively

or by fair impheation, that a decision as to the federal

question was necessar¢ to thé State's. determination of the

eause, Williams v. Kaiser¢4945) 8283 U.S. 471, 80 1. He.

308, 65 S. Ct. 363. ;

In Petitioner’s Complaint and - Amendment thereto

alleging the news report of that which occurred in a court-

‘

room defamed his reputation and Respondents’ Deuurrer

and Motion to Strike, there was nothing to indicate or in-

timate there was involved any federal question. Peti

tiouer’s contentions boil down to the claim that the decision

of the Supreme Court of Arkansas is erroneous. But, no

constitutional provision is violated by an erroneous deci-

sion of a State Court. Brinkerhoff-Faris Trust & Savings

Co. v: Hill, 281 U.S, 673, 74 *L. Ed. 1107. Moreover, the

Supreme Court of Arkansas did not commit any error in

its conclusion that Petitioner's Complaint alleging libel did

not state a cause of action.

Petitioner's contention that the Supreme Court of Ar-

kansas denied him his right to property without due process

of law in deciding he did not state a cause of action at law

entitling him to a trial by jury in a State Court does not

present a federal question, The Court had before it a ques-

tion of law under the State's controlling Statutes and its

owl prior decisions.

In order to justify this Court in takinye jurisdiction to.

review the decision of the Supreme Court of Arkansas, it

Inust appear that a federal question arose in the State

Court, that the question was decided by the State Court

or by necessary intendiment it appears it must have been

raised and a decision made. It is mot. sufficient to show

that a question might have arisen or is applicable unless

it is further shown that it did arise. and was applied by

the State Court. Crowell vo Randell 10 Pet. (U.S.) 368,

OL. Ed. 458. It is essential to show that a federal question

actually arose. See, Annotation, Review of State Deci-

‘ sions, following Winnesota v. National Tea Company, 308

U.S. 550, in 84 L. Ed. 920°at Page 927. See also, Black

v. Cutter Laboratories, 351 U.S. 292, 100 L. Ed. 1188,

Ss

If Federal Question Is Presented It Was Not Timely

Nor Properly Made.

The Petition for Certiorari herein correctly reflects ne

federal question by a pleading or otherwise was raised,

indieated or suggested in the case at bar until after the

Supreme Court of Arkansas had decided’ the case and ren

dered its opinion therein ou March 28, 1960. Thereafter,

within 17 days, as the Rules of the Supreme Court of Ar-

kansas allow (Rule 20, Rules of Supreme Court of Arkan-

sas) Petitioner filed his Petition for Rehearing. For the

first time in the case Petitioner injected his constitutional

plea in this language; :

The action of the Arkansas Supreme Court in sustain:

inv the demurrer denied Appellant of his rights se

cured to him under the provision of Amendments No. 5,

7 and 14 of the Constitution of the United States."’

(Petiticaer’s Petition for Writ, p. 21).

As this Court said as recently as June 22, 1959 ip Raley

v. Ohio, 360 U.S. 423 at page 485, 3 L. Ed. (2) 1544 at

pace 13.933 :

‘But this does not suffice: It is essential to our juris-

diction on appeal... that there be an explicit: and

timely insistence in the State Courts that a State

Statute as applied, is repugnant to the Federal Con

stitutiog, treaties or laws." ’

In MeGarritty, ddim. ve Delaware River Bridge Commis-

ston, 202 UL S. 19 at p. 20, 78 L. Ed. 109° at p. 1096, this

Court said: nas

“No Federal question was raised prior to a petition

for rehearing in the Supreme Court of the State, which

was denied without move. Appellant insists that ques-

tions under the Fourteenth Amendment were thus

raised at the first opportunity. .The petition for re-

hearing does not appear in the record. Nor does the

9

record contain the pleadings, the evidence, or any find-

ings by the State Court upon the question of faet in-

volved. . 2. The appeal is dismissed for the want of x

properly presented substantial Federal question."’

In American Surety Co. v. Baldwin, 287 UL S. 155 at Pp.

164, fe LL. Ra 231 at po 256, thix Court in discussing the

seasonable and proper manner of raising a federal que-

tion, stated: |

The Surety Company petitioned for a rehearing. In

that petition, besides reiterating several of its pre-

Vieus contentions, it urged for the first time, that the

rendition of the judgement on its undertaking violated

the dne process clanse of the Fourteenth Amendment.

The petition was denied without opinion. The federal

elaim ‘there made cannot serve as the basis for review

by this Court.”

- The inclusion in Petitioner's Petition for Rehearing

filed in the Supreme Court of Arkansas of one sentenee,

“the Court in sustaining the Demurrer denied him of his

rights tiader Amendments number 5. 7 and 14 of the Con

stitution of the United States."’ does not constitute a clear

| and timely presentation of a substantial Federal qnestion

Which wonld lead this Court to review a decision of th

Supreme Court of the State even though a Federal qnes

tion was presented. In the case at Bar, no Federal anes

tion is presented. .

The Petition for Writ of Certiorari should -he denied.

- Respectfully Submitted,

Die Var EL. Perkins,

17 Main Street,

Lake Village, Arkanzas,

‘ Counsel for Respondents.

(1785-5)