Reply Brief of Petitioner — Roberts v. Love (No. 253)

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Ouse AMAWMUE CXUTL ULd

LE COPY FILED.

OCT 3 1M6

JAMES P BROWNING. Clerk

“epee a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1960

No, 253

PAUL K. ROBERTS, «0. csccsceeeuo _.... Petitioner

¥8.

W. L. LOVE, JAMES MOSELEY, O. K. LITTLEFIELD,

JAMES WHITE AND MAKION WHITE, A PARTNER-

SHIP, D, B A THE EAGLE PUBLISHING COMPANY

AND ROBERT L. NEWTON, .............. ......... Respondents

REPLY BRIEF OF PETITIONER

ELZA’°CLIFTON BOND, JR.,

328 Shelton Avenue,

Monticello, Arkansas,

Attorney for Petitioner.

f NDEX

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The Federal Question Was Timely and Properly Made ... 1

Page

* TABLE OF CASES

Cases Cited,

Arrowsmith v. Harmoning, Admministratrix, et al,

bie SOO ck REE SES Aes Btn ph Fant

Brown v. Western Railway of Alabama, 338 U.S. 423... 4

Home Telephone and Telegraph v. Los Angeles,

RAS MD 1 ZAeet ee rerlabr torn ponerse iene on

Manhatten Life Insurance Company v. Cohen,

234 U.S. 128, 124 ......... Qeprecarese cme tierceee reir rete 4

Raley v. Ohio, 360 U.S. 423 ope eee

Saunders v. Shaw and the Board of Drainage

_ Commissioners of the Bayou-Aux-Boefs

¢ Drainage District, et al, 244 U.S. 317 ooo... 2.

Constitution ' ’

Amendment Five, United States Constitution Hae OE

‘Amendment Seven, United States Constitution tees Pe Sy !

Amendment Fourteen, United States Constitution __ 1,2, 7

Statutes

State:

Arkansas Statutes 43-1305 .......... EE TT: apieiinhdet ae 7

Federal: . :

Co tit ee. beee tel os ba Pa beldecanevesssioecaiaaa 4

Rules

Rule 20, Rules of Supreme Court of Arkansas ............2... 1

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1960

No, 253

PARRA Gs ak MND Bi ass soya ctixiversntes casas! ‘+t Petitioner

vs.

W. L. LOVE, JAMES MOSELEY, O. K. LITTLEFLELD,

JAMES WHITE AND MARION WHITE, A PARTNER-

SHIP, D B’A THE EAGLE PUBLISHING COMPANY

AND ROBERT L. NEWTON, ........................ Respondents

REPLY BRIEF OF PETITIONER

THE FEDERAL QUESTION WAS TIMELY

f AND PROPERLY MADE

The Petitioner in the case at bar within 17 days after

March 28, 1960, filed in the Supreme Court of Arkansas

his Petition For Rehearing as allowed by Rule 20, Rules of

the Supreme Court of Arkansas. In this Pétition For Re-

hearing the Petitioner alleged “The action of the Supreme

Court of Arkansas sustaining the demurrer denied appel-

lant his rights secured to Kim under the provisions of

Amendents No. 5, 7 and 14 of the Constitution of the

United States.” On May 2, 1960, ‘the Supreme Court of

Arkansas denied the Petition For Rehearing, This con-

‘stituted a timely and proper presentation of the constitu-

tional question to the Supreme Court of Arkansas and this

constitutiunal question is now properly before this court.

The case of Saunders v. Shaw and the Board of Drain-

age Commissioners of the Bayou Terre-Aus-Boefs Dravt-

age District, et al., 244 U.S. 317, is a case very similar to

the case at bar. In this Saunders case the lower court had °

decided the case without hearing any evidence. and the Pe-

titidner had alleged constitutional questions of due process

in his Petition For Rehearing.

This court granted the Petition Dor Certiorari and

had the following to say about cases like the one at bar:

“But when the act complained of is the act of the Supreme

Court, done unexpectedly at the end of the proceeding,

when plaintiff in error no longer had any right t5 add to

the record, it wou'd leave a serious gap in the remedy for

infroetion of constitutional rights if the pacty aggrieved in

#uch a way could not come here. The defendant was not

hound te contemplate a decision of the case before his evi-

dence was heard and therefore was not bound tu ask a rul-

ing or take other precantions in advance. The. denial of

rights given hy the Fourteenth Amendment need no* be

by legislation. Home Telenhone and Teleqraph Company

r. Los Angeles, 271 U.S. 278. It appears thet shortly

after the Supreme Court had declined to en ertain the

petition for rehearing the plaintiff in error brought the

claim of corstitytional right to the attention of the Chief

3

Justice of the state by his assignment of errors. We do’

not see what more he could have done.”

+ In the case at bar the Petitioner made certain allega-

tions of fact in his complaint which could have beer proven

or refuted only by the taking of testimony. Jt is submit-

led that the Petitioner's rights guayanteed to him by the

constitution of the United States had not been denied

when he filed his complaint in the Circuit Court of Bradley

County, Arkansas. Petitioner had every right to believe

that the Circuit Court of Bradley County would follow the

law. Likewise, he had every right to believe that the Su-

preme Court of Arkansas would safeguard his constitu-

tional rights. When these two courts summarily dismissed

his complaint by means of demurrer, then his constitution-

al rights were invaded, and that is when Petitioner called

this fact to the attention of the Supreme Court of Arkan-

sas.

The case of Arrowsmith v. Harmoning, Administra-

trix aid Others, 18 U.S. 194, is a case in which the Peti-

tioner set up the following assignment of error on Petition

For Rehearing 'efore the Supreme Court of the Stute.of

Ohio:

“3rd. That by affirming the judgment of the Court

of Common Pleas by said District Court, this plaintiff

in errer was deprived of his right of trial by jury, contrary

to the provisions of the Constitution of this State, and de-

prived of his property without due process of law, contrary

to the provisions of the Constitution of the United States.”

The court in deciding this case, went on to say “This

is the first time. so far as the record discloses. that even

the semblance of a ederal right was set up in this case,

a nie

4

and even here it is not easy to see on what ground it could

~ be claimed that Arrowsmith had been deprived of his prop-

erty in violation of the Constitution of the United States.

It is for this reason, perhaps, that the Supreme Court (of

Ohio) while affirming the judgment of the District Court,

took no notice of this assignment of error in its opinion.

The decision, however, necessarily involved a denial of the

right which was claimed in this way, and thus we probably

have technical jurisdiction. For this reason the motion to

dismiss must be denied, but the question on which our juris-

diction depends was so manifestly decided. right, that the

case ought not to be held for further argument.”

It can be seen from the above cited cases that if a

State Supreme Court passes upon the federal question

raised for the. first time even on Petition For Renearing,

that this constitutes a timely presentation of the federal

question.

To the same effect is the case of Raley v. Ohio, 360

U.S. 423. In granting’the Petition For Certiorari in the

Raley case, this court said, “There can be no question as

to the proper presentation of a federal claim when the high-

est state court passes upon it. See Manhatten Life In-

surauce Company v. Cohen, 234 U.S. 123, 124. We think

this sufficient to satisfy the statutory requirement sought

to be vindicated in this court to be one claimed below. 28

USC See. 1257 (3).”

The case at bar is closely akin to the case of Brown

vy. Western Railway of Alabama, 338 U. S. 294. In the

Brown case, as in the case at bar, the court had under

consideration whether or not the lower court should have

sustained a demvrrer to 1 complaint. In the Brown case,

the plaintiff filed a complaint in which he stated a cause of ©

5

action. A demurrer interposed by defendant was sustain-

ed by the trial court. The Supreme Court sustained the

trial court. es

In granting certiorari out of this court it was said,

“A long series of cases previously decided, from which we

see no reason to depart, makes it our duty to construe the

allegations of this complaint in order to determine whether

the petitioner has been denied a right of trial granted him

by Congress. * * * We hold that the allegations of the.com-

plaint do set forth a cause of action which should not have

, been dismissed. * * * Certainly these allegations are suffi-

cient to permit introduction of evidence from which a jury

might infer that petitioner’s injuries were due to the rail-

road’s negligence in failing to supply a rezsonably safe

place to work.

Hert the Georgia court has decided as a matter of law

that no inference of railroad negligence could, be drawn

from the facts alleged in this case. Rather the court itself

has drawn from the pleadings the reverse inference that

the sole proximate cause of petitioner’s injury was his own

negligence.” .

Upon trial of this case the evidence offered nay or

may not support inferences of negligence . We simply hold

that under the facts alleged it was error to dismiss the ‘com-

plaint-and that petitioner should be allowed to try his case.”

The Supreme Court of Arkansas has decided as a mat-

ter.of law that this vicious, false, slanted, distorted article

Which was clearly written to cause racial tension and ani-

mosity toward the Petitioner was true and could not have

damaged the reputation of this Petitioner. The Supreme

Court of Arkansas has stated in its opinion “In view of

a i

¢

public sentiment and the probable outraged feeling of the

community toward a crime of this nature, we can readily

understand appélllant’s sensitivity toward the article, we

dare siy that numerous instances have arisen wherein peo-

ple have been embarassed by seeing their name in print,

though no harmful act had been committed, but under our

system of government and its democratic prosesses, a free

press is assured”. The court is saying in this sentence that

even though this Petitioner's reputation might have been

damaged, when he had done no wrong, yet the importance

of the free press is such that no liability should arise even

though the press has libelled him.

All this Petitioner has ever asked of the Circuit Court

of Bradley County or the Supreme Cuurt of Arkansas is

that he be allowed to present his case to a jury. The Brad-

ley County Circuit Court and the Arkansas Supreme Court

have gone to extreme lengths to see that he never has that

opportunity. As long as a situation exists in this United

States of America where a citizen of this country cannot

present his case to the proper adjudicating tribunal just 20

long will that citiven be deprived of his constitutional

rights as set forth in cur constitution.

The Circuit Court of Bradley County and the Supreme

Court of Arkansas have held a matter of law that when

an accused person is committed to the hospital for mental

observation that this action is a “legal technicality.” This

is patently incorrect because an insane person is not plac |

in a hospital for treatment because of a technicality but he-

cause it has always been a common law substantive right

that.those who ‘vere insane were not legally responsible for

their actions.

The Srnreme Court of Arkansas states that as a mat-

’

7

ter of law there cuuld not possibly be anything libellous ‘n

an article stating that the circuit judge “was forced to send

A. C. Duncan” to the State Hospital in spite of.the fact

that Section 43-1305 of Arkansas Statutes, 1947 Edition,

specifically states that upon motion suggesting insanity

“whereupon the court shall direct the examination (of ae

cused) by two (2) reputable and disinterested physicians.”

A. ©. Duncan is a Negro, and at the time Petitioner

Was appointed to represent him feeling was running very

high against him. The respondent newspaper was not con-

tent to publish a restrained, factual account of the hearing

but rather chose the sensational, tabloid type account which

is the baSis of this suit. Whether or not this sensational,

faise, distorted newspaper article damaged the reputation

of this Petitioner is a question of fact which can only be

decided by a jury and until this petitioner is given an op-

portunity to submit his ease to a jury of his peers just so

long will his cons stitutional righ its guaranteed to him under

the provisions of Amendments No.5, 7 and 14 have been

violated.

<

Unless this court grants this Petition For Certiorai

this Petitioner will be without redemdy.

Respectfully submitted,

ELZ: CLIFTON BOND, JR..,

328 Shelton Avenue,

Monticcilo, Arkansas, ;

Attorney for Petitioner.