# Petition for Writ of Certiorari — Goduto v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1270%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 368 U.S. 927 ## Text ‘* f SeP 22 194] JAMES R. BRUWNISG, Clerk IN THE Supreme Court of the United States OcToBER TERM, 1961 No. 4 3 ¢ | Leonard D. Goputo AND NATHAN FRIEDMAN, Petitioners, VS. PEOPLE OF THE STATE OF ILLINOIS, Respondent. PETITION FOR A WRIT OF CERTIORARI to the Supreme Court of Illinois Ropert KARMEL 33 North LaSalle Street Chicago 2, Illinois | S. G. LippMAn DeSales Building Washington 6, D. C. Tim L. BorNstEIN 1741 DeSales Street, N.W. Washington 6, D. C. Attorneys for Petitioners. ARATE PIO: MINIT LT A LENE ITE, Press or Byron S. ADAMS, WASHINGTON, D. C. With these general principles in mind we proceed with an ex- amination of our right te assert jurisdiction in this ease. Any unauthorized entry on the land of another or un- lawfully remaming on the premises of another is a trespass for which the law provides a eivil remedy. (Checkley vy. Iinois Central Railroad Co., 257 Wi. 491s Mead ve Pollock, 99 Th App. 151; 52 Am. Jur. Trespass, see. 11.) Tres- pass Was not a crime at common law, however, unless it was accompanied by or tended to create a breach of the peace. (Busick ve Mlinois Central Railroad Co., 201 Wb. App. 633.) It is apparent therefore that the criminal sanctions of the common law were not imposed primarily for the protection of property rights but were imposed for the protection of public safety. This was a recognition of the fact that tres- pass ean lead to violence, Indeed the owner or occupant of and has the right to use any force necessary to remove a trespasser in situations where there is no time to resort to the law. (See Prosser, Torts 2d ed. see. 21.) However, the distinetion between trespasses for which there was only civil liability and those for which there was also criminal liability was not made clear by the common law. (52 Am. Jur., Trespass, see. 84.) Our legislature in 1874 made certain acts of trespass punishable as crimes, (Rev. Stat. 1874, p. 348,) thereby removing the uncertainties that existed at common law. da When a person refuses to leave another’s property after he has been ordered to do so, a threat of violence heecomes imminent. It was for this reason that the legislature made this type of trespass subject to criminal prosecution. The basic purpose of the statute is the prevention of violence or threats of violence. Of course, it also affords protection to property rights which is a proper subject for the imposition of criminal sanctions. The defendants have made much of the fact that there was no violence in this ease. We believe, however, that this was due to the fact that the conipany did not resort to self- help to remove defendants from the premises. The defend- ants were on property oceupied by Sears, Roebuck and Company. The company’s agent believing the defendants had no right to be on the property ordered them to leave three times, The defendants believing they had a right to he there refused to leave. At this point the company called the police. If the State had not taken charge of the situa- tion, the company would have had no alternative but to foreefully remove the defendants. We cannot know the amount of foree that would have been necessary to remove them, but the threat of violence in such & situation is im- minent, See e.g., Marshall Field & Co. v. National Labor Relations Roard, (7th cir.) 200 F. 2d 575. In addition to the State’s interest in preserving domestic peace, the law recognizes the company’s right to protect its property interests. The leading case on the right of non- employee union organizers to distribute union literature on company-owned parking lots is National Labor Relations Board vy. Babccck & Wilcox Co., 351 U.S. 105, 76 S. Ct. 679. The court there stated; ‘‘* * * an employer may validly post his property against non-employees distribution of union literature if reasonable efforts by the union through other available channels of communication will en- able it to reach the employees with its message and if em- ployer’s notice or order does not discriminate against the a union by allowing other distribution.’? Ir these eireum- stances the court recoznizes the property nterest of the employer to be superior to the interest of the union in having a convenient means of communicating with em- -plovees. The notice or order of the emplover is of little consequence, however, if it cannot be enforeed. As we have indicated, the criminal trespass statute does protect property rights in situations where violence or an huminent threat of violence.is present. If the eriployer ean- not avail himself of this statue, which is general in its application and would be available to him against any other supposed trespasser, he must resort to self-help, for he ean obtain no preventive relief under the National Labor Rela- tions Act. The Supreme Court has stated that when legiti- mate interests of employees and employers collide, protee- tion of the employees’ interest under the National Labor Relations Act is not so absolute as to deny self-help by em- plovers. (National Labor Relations Board v. Truch Drivers Local Union No, 449, AFT, 353 U.S. 87, 77 S. Ct. 643.) Althouch the employer may use self-help in such a s'tuation such remedy may be wholly inadequate and it presents a threat of violence. On the other hand, the union organizers who feel that their statutory rights have been invaded by an employer’s refusal to permit them to enter on its property may secure relief through the National Labor Relations Board. (See National Labor Relations Board vy. Babcock & Wilcox Co., 391 U.S. 105, 76S. Ct. 679.) The Board ean, in a proper case, order the employer to cease and desist from ‘* prevent- ing, by ejection, threat of arrest, and arrest, non-emplovee union organizers from soliciting employees for union mem- bership’’ on certain portions of the company’s property. (Marshall Field & Co. vy. National Labor Relations Board, 200 F. 2d 375, 376-77.) This has been the procedure gen- erally followed by the unions. See e.g., National Labor Re- lations Board v. Babcock & Wilcox Co, (Sth cir.) 222 F. 2d 6a 316; National Labor Relations Board v. Seamprufe, Ine. (10th cir.) 222 F. 2d $58; National Labor Relations Board v. Ranco, Inc. (6th cir.) 222 F. 2d 543; National Labor Re- lations Board vy. Cranston Print Works Co, (4th cir.) 258 F.2d 206; National Labor Relations Board vy. Great Atlantic & Pacific Tea Co, (oth eir.) 277 F. 2d 759. We believe that the maintenance of domestie peace and the absence of any preventive relief for the protection of the emplover’s property rights is of sufficient importance to vive our State courts jurisdiction to enforce the criminal trespass statute under the circumstances of this case. This brings us to the question of whether the defendants’ act of trespass as defined by the statute was justified or excused, We recognize that solicitation by nonemployee union organizers on company property is an activity pro- tected by section 7, and that interference with this activity is prohibited by section 8 of the National Labor Relations Act when it ean be shown that there is no reasonable alter- native channel of communieation with the employees or where a valid no-solicitation rule is being unfairly applied. (Republic Aviation Corp, v. National Labor Relations Board, 324 U.S. 793, 65 S. Ct. 982: National Labor Re- lations Board yv, Babcock & Wileor Co., 351 U.S. 105, 76 S. Ct. 679; National Labor Relations Board v. United Steel- workers of America, CIO, 357 U.S. 357, 78 S. Ct. 1268.) Under such circumstances the act of trespass is justified by the reeessity to preserve the freedom to solicit for union organization. In the Babcock & Wilcox Co, case, however, the court pointed out: ‘*This is not a problem of always open or al- ways closed doors for union organization on company prop- erty. Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not 7a affirmatively interfere with organization: the union may not always insist that the employer aid) organization. * * * The determination of the proper adjustment) rests with the Board.”* (351 U.S. 105, 112. 76 S. Ct. 679, 684.) Thus, the determination of whether there are no other reasonable alternative channels of communication with em- plovees or the no-solicitation rule is being unfairly applied is committed primarily to the National Labor Relations Board, (See National Labor Relations Board vo Track Drivers Local Union No, 449, AFL, 853 ULS. 87, 77 S.Ct. 643,) and we have no jurisdiction to determine such ques- tions. Apparently no effort has been made to invoke the juris- diction of the National Labor Relations Board in this case. This presents the question of whether our State courts can apply the eriminal trespass statute without a prior deter- mination by the Board of whether the no-solicitation rule is Valid and whether it is being fairly applied. There is no indication that a request was ever made of Sears, Roebuck & Company to use the. parking lot for dis- tribution of union literature. (Cf. National Labor Relations Board v. United Steelworkers of America, ClO, 857 U.S. 307, TS S. Ct. 1268.) Apparently the defendants just ap- peared on Mareh 11, 1959, and began distributing the leaflets on the parking lot. After they had learned that the com- pany did not want them on the lot and warned them that the police would be ealled, they still insisted they had a right to be there. At this point they eould have left and applied to the National Labor Relations Board for a determination of their right to be on the property. (See: National Labor Relations Board v. Bahcock & Wilco Co. 341 US. 105, 16S. Ct. 679.) They have made no effort, however, to have the proper forum make a determination of their right to be on the company’s property but insist that they might have such a right and that we are therefore without power to interfere with their conduct. The anomaly of the situa- Sa tion is that the Board cannot make such a determination either, unless the union seeks it and apparently they are not roing to do so. We believe that under these circumstances the trial court had the power to find the defendants guilty of violating the criminal trespass statute although it had no jurisdiction to determine whether the trespass was justified under section 7 of the National Labor Relations Act or whether the Com- pany was committing an unfair labor practice under section 8 of the act by enforcing the no-trespass rule. Congress has riven union organizers the right to go on company property under certain circumstances and has provided a procedure for determining and enforeing this right. The union has failed to follow the procedure that Congress has provided. We are unwilling to hold that the State courts are divested of jurisdiction, not because Congress has preempted the area, but because of the course the union organizers have followed. The defendants also contend that the trial court errone- onsly convicted them of criminal trespass because they were ‘Vawfully’? upon the premises oceupied by Sears, Roebuck and Company. They argue that there are no other reason- able channels of communicating with the employees at the store in question and therefore the constitutional guarantee of free speech gives them the right to remain on the prop- erty after notice to leave. The defendants ecandidiy point out that this constitu- tional question has not heretofore been decided by any State supreme court. The apparent reason for the lack of author- itv on this question is that solicitation by nonemplovee union organizers on company property is, under the conditions here alleged, an activity that may be protected by section 7 of the National Labor Relaiions Act, and interference with this activity may be prohibited by section 8 of the act. The unions, as we have heretofore indicated, have generally pursued the remedy available to them under the act when 9a they believed their statutory right had been invaded. In this case, however, jurisdiction of the proper forum for de- termining defendants rights under the National Labor Re- lations Act has not been invoked and we must therefore determine whether they had a right to be on the property by virtue of the constitutional guarantee of free speech and free press. Defendants state that the case that is most analogous to this one is Marsh v. Alabama, 326 U.S. 501, 66S. Ct. 276. There a distributor of religious literature was convicted of criminal trespass because she remained on the sidewalk of a company-owned town after she had been warned to leave. The Supreme Court held that the application of the Ala- bama trespass statute, under the circumstances of that case, violated freedom of press and religion guaranteed by the first and fourteenth amendments. Despite the fact that certain language in that opinion concerning the right to use private property for speech, press and assembly would appear to support defendant's contention When that language is not read in the light of the facts of the Warsh case, we believe that the ease ‘‘goes no further than to say that the public has the same rights of discussion on the sidewalks of company towns that it has on the sidewalks of municipalities.’ (National Labor Relations Board v. Stowe Spinning Co., 336 U.S, 226, 242, 69 S. Ct. Ad, 549 (dissenting opinion).) The present case does not involve a company town. It is recognized that freedom to soli for union organization will, under certain cireum- stancés, require an employer to allow the solicitor to ap- proach employees on his property, (Nafttonal Labor Rela- fions Board v. Babcock d& Wileor Co., 851 U.S. 105, 76S. ('t. 679,) but this freedom of solicitation is the result of a regulatory statute and not a constitutional right. ssee: Pe- public Aviation Corp, v. Nationet-Labor Relations Board, B24 U.S. 7938, 65S. Ct. 982, 98s, | 10a We hold that freedom of speech and press guaranteed to defendants by the first and fourteenth amendments to the Federal constitution and by section 4 of article II of our constitution did not give them the right to remain on the parking lot after they were ordered to leave, It is also argued that the People failed to prove that Sears had the right to exclude defendants from the prop- erty. It is admitted that Sears is the jiessee of the prop- erty; that the property is used as a parking lot for cus- tomers and employees; and that defendants were not employees or prospective customers but were on the park- ing lot for the sole purpose of distributing leaflets. We believe that this a sufficient showing of Sears’s right to demand that the defendants leave the premises. Defendants also argue that unlawful entry is the gist of the erime and that their entry upon the parking lot was lawful. They were not charged with, or convicted of, unlawfully entering upon the land of another but were charged with and found guilty of unlawfully remaining upen the land of another after they had been ordered to move. The statute declares such conduct to be a misdemeanor. For the foregoing reasons the judgments of the municipal court of Chicago are affirmed. = Judgments airmed, lla Uxitep Starrs or AMEnICA State or Thnixors Jo Supreme Court (= AT A Tense op TUE Supreme Cover, begun and held in Springfield, on Monday, the thirteenth day of March in the vear of our Lord, one thousand nine hundred and sixty-one, within and for the State of Thnois, Present: Warren Ve Sctuarren, Chief Justice Josepu FE. Dairy, Justice Greener We. Bristow, Justice Harry B. Wersuey. Justier Ray Lo Krixonien. Justice Byron O. Tousr, Justice Roy J. Sourissunc. Jin. Justice Winniam G. Cruark, clfforney General Rosert G. Mivey, Varshal Attest: Mes. Earte Bexaanuix Searcy, Clerk se It RemeMBERED, that to-wit: on the 26th day of April 1961, the same being one of the days in vacation after the term of Court aforesaid, the following proceedings were hy said court, had and entered of record, to-wit: No, 39745 PropLe State oF TLuixots, Appellee Vs. Leonxary 1D. Gonvro, also known as Daw Goputo, Appellant Appeal from Municipal Court City of Chicago 59 M 31504 And now, on this day, this cause having been argued by counsel, and the Court, having diligently examined and inspected as well the record and proceedings aforesaid, as matters and things therein assigned for error, and now, being sufficiently advised of and concerning the premises for that it appears to the Court now here, that neither in the record and proceedings aforesaid, nor in the rendition of the judement aforesaid. is there anything erroneous, vicious or defective, and in that record there is no error. Therefore, it is considered by the Court that the judg- ment of the Municipal Court of the City of Chicago afore- ee Be Affirmed incall Things and Stal in Full Force and Effect, notwithstanding the said matter and things therein assigned for error, I Mrs. Farle Benjamin Searea, Clerk of the Supreme Court of be State of HIinois amt keeper of the records, files and Seal thereof, do hereby certify that the foregoing is a true copy of the final order of the said Supreme Court in the above entitled cause of record in my office. Is Witness Wienstor, TP have herennto subserihed my name and affixed the Seal of said court this 16th dav of May, 1961, ~ Mes. Earnie Bex savin Searcy Clerk, (Seat) Sapreome Carrtiot th, State of Tilinars, l2a Unirep States or AMERICA State oF Iuurors } Svpreme Court f§ §&* At a TERM OF THE SrprREME Cotrt, begun and held in Springfield, on Monday, the thirteenth day of March in the year of our Lord, one thousand nine hundred and sixty-one, within and for the State of Illinois. Present: Water V. Scnaerer, Chief Justice Josepn FE. Darry, Justice Grorce W. Bristow, Justice Harry B. Hersney, Justice Ray |. Kurncsien, Justice Byron O. Hovse, Justice Roy J. Sourissure, Jr.. Justice WriuuaM -G. CLark, Attorney General Rosert G. Mitey, Marshal Attest: Mrs. Earte Bensamin Searcy, Clerk Be Ir REMEMBERED, that to-wit: on the 26th day of April 1961, the same being one of the days in vacaticen after the term of Court aforesaid, the following proceedings were by said court, had and entered of record, to-wit: No. 35746 Prope State oF Ivurots, Appellee vs. NaTHAN FrrepMax, Appellant Appeal from Municipal Court City of Chicago 59 M 31505 And now, on this day. this cause having been argued by counsel, and the Court, having diligently examined and inspected as well the record and proceedings aforesaid, as matters and things therein assigned for error, and now, being sufficiently advised of and coneerning the premises for that it appears to the Court now here, that neither in the record and proceedings aforesaid, nor in the rendition of the judgment aforesaid, is there anything erroneous, vicious or defective, and in that record there is no error. Therefore, it is considered by the Court that the jndg- ment of the Municipal Court of the City of Chicago afore- said, Be Affirmed in all Thinas and Stand in Full Force and Effect, notwithstanding the said matter and things therein assigned for error. I Mrs. Earle Benjamin Searcy, Clerk of the Suprema Court of the State of Hlinois and keeper of the records, files and Seal thereof, do hereby certify that the feregoing is a true copy of the final order of the said Supreme Court in the above entitled cause of record in my office. Ix Witsess Wuereor, T have hereunto subseribed my name and affixed the Seal of said court this day of a Clerk, (SEAL) . Supreme Court of the State of [Mlinois. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1270%3A2. Public record. Not legal advice.