ORAL ARGUMENT OF CLIFFORD D. PIERCE, JR., ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We'll hear arguments next in City of Memphis v. Greene.

Mr. Pierce, I think you may proceed whenever you're ready.

Mr. Pierce: Mr. Chief Justice, and may it please the Court:

The City of Memphis petitioned for certiorari in this Court solely because of what we perceive to be a clear and inherent danger in the majority opinion of the 6th Circuit to the ability of this nation's cities to effectively balance all the conflicting interests which come before them and effectively govern.

In short, we saw the danger which we believe Judge Celebrezze saw, in the dissenting opinion, Judge Celebrezze having been mayor of one of the great cities of this country, and also, some of the concerns that were expressed by this Court in Washington v. Davis.

In every democracy, the legislative and administrative parts of that democracy have the burden to weigh conflicting and competing interests.

Inevitably, in any such decision, there will be winners and losers.

And depending upon whose ox is gored, the party that is not successful will feel either irritated or disappointed or in some respects angered.

This case, may it please the Court, started as a routine street closing.

It started, not with the City itself, but with residents of a small winding neighborhood street in a subdivision known as Hein Park.

The reason which these neighbors gave abutting this street was the fact that this very narrow, less than two-lane street, or approximately two-lane street, had taken on a tremendous amount of traffic.

They sought to control the traffic going through that small residential neighborhood.

They sought to protect the pedestrians, both those living within the neighborhood and without the neighborhood, particularly the children who were walking to and from school.

They also sought to control litter and pollution, things that go with traffic, unfortunately, and things that this Court has recognized as being a legitimate purpose to control.

West Drive itself, as I have indicated, is a very narrow, winding, almost country-type street.

There are no curbs or gutters or sidewalks.

It is, at its entrance into Jackson Avenue, about 25 feet wide.

If cars are parked on either side, it ceases to be a two-lane street.

Hein Park itself is a small in-town, inner city neighborhood approximately 60 years old.

The geographical borders are such that it is bordered on three sides by major streets, four and six-lane streets, most of which carry heavy commercial traffic.

West Drive, as it comes into Jackson Avenue, which is one of these major commercial streets and is on the north side, is, as I have indicated, 25 feet wide.

Jackson Avenue--

Unidentified Justice: Is there a good map, Mr. Pierce?

There's a rather poor map on A59.

Mr. Pierce: --It's an extremely poor map, Mr. Justice Stewart.

There is a slightly better map in the brief submitted by the amicus curiae from the Hein Park Civic Association.

It is at least more legible.

I regret sincerely there is not a better map.

I think that that, although it's not drawn to scale, I believe that you can judge the streets better from--

Unidentified Justice: A little bit better.

Mr. Pierce: --Yes, I believe that's clearer.

I apologize for that.

Unidentified Justice: Now, on that one, are the colors significant?

The yellow--

--West Drive is in blue, isn't it?

Mr. Pierce: Yes, sir.

Unidentified Justice: Is that it?

Mr. Pierce: Yes.

West Drive.

And what's Springdale?

Is that the wide street you mentioned?

Springdale is the wide street.

Yes, sir, it's in yellow.

Unidentified Justice: That's the one on the north?

Mr. Pierce: That's the one on the north; yes, sir.

Unidentified Justice: And the other side, that's on the other side of the highway?

Of what street?

Mr. Pierce: That is on the other side of Jackson Avenue.

Unidentified Justice: Jackson.

Mr. Pierce: Jackson Avenue is approximately six lanes wide.

Unidentified Justice: And the barrier about which which we're speaking is at the intersection of West Drive and Jackson?

Mr. Pierce: Yes, sir.

That's correct.

Unidentified Justice: On the west side of it?

Or the left hand side on this map?

Mr. Pierce: Well, it... across it; yes, sir.

Now, a word about Hein Park, about the subdivision itself.

As I've stated, it is a small in-town neighborhood, an inner city neighborhood.

The streets are small and winding, The houses vary from rather small homes to rather large homes.

One thing I think is particularly significant in view of the arguments that have been made by the plaintiffs in this case, is that there are, in addition to West Drive, there are seven other entrances into this subdivision.

Unidentified Justice: Excuse me, Mr. Pierce.

On this map, could you roughly give me the boundaries of Hein Park?

Mr. Pierce: The boundaries of Hein Park, Your Honor, would be--

Unidentified Justice: And where are you looking now, Mr. Pierce?

Mr. Pierce: --I'm sorry, Mr. Justice Blackmun.

This is the map that is attached to the brief submitted by the Hein Park Civic Association; not very good, but it's the best we have.

Yes, sir.

Unidentified Justice: There is a pretty good one on 144 of the Appendix--

Mr. Pierce: But it's virtually illegible.

Unidentified Justice: --I don't think it is.

144 seems to me to be very legible.

Mr. Pierce: I'm sorry, sir.

That's correct.

--You're right.

That does not include the whole Hein Park.

It does include just basically West Drive and Center Drive.

That might give some better idea of the location of the barrier and how it fits into West Drive.

It does not include all of Hein Park.

Hein Park, as we look to the map in the amicus brief, is bounded by Jackson Avenue on the north, Trezevant Street on the east, North Parkway on the south, and, actually, Charles Place, which runs into West Drive, on the west.

To the west of that is Southwestern University.

Unidentified Justice: It's a small point, but that North Parkway, I gather, is quite a different street than the North Drive shown on number 144?

Mr. Pierce: Yes, sir.

Yes, Mr. Justice Stevens.

North Parkway is a major thoroughfare.

North Drive is, if anything smaller than West Drive.

It's a very narrow, small--

Unidentified Justice: That's within Hein Park?

Mr. Pierce: --Within Hein Park; yes, sir.

Unidentified Justice: And then, Overton Park, which has been the subject of previous litigation in this Court--

Mr. Pierce: Yes, sir?

Is to the south.

Unidentified Justice: --Is a large park, south.

Mr. Pierce: Yes, sir, a very large park, and as seen on this map--

Unidentified Justice: The largest one in town, I guess?

Mr. Pierce: --located to the south; yes, sir.

As I say, I think the map will show this, there are seven other entrances into Hein Park, including two from the north, so that, one of the complaints made by the plaintiffs in this case was that they wanted to come down Springdale Street, and that they were being effectively shut out of Hein Park and would not to be permitted to come into Hein Park for racial or other reasons.

Actually, all they would have to do would be to make a turn either to the east or to the west of about 100 feet.

If they turn to the east 100 feet, they can proceed into Cypress Drive, which runs into Center Drive, which runs right into North Parkway.

If they go to the west, they can go about 100 feet, they can go into Charles Place, which runs into West Drive, and they will be back out again at the Parkway.

The other entrances into Hein Park are at North Drive and at East Drive, on the east, of course; Center Drive on the west, on the south; and Charles Place, which runs in, in effect, from Southwestern, to the west.

That I think would indicate the traffic patterns, may it please the Court.

As is indicated in the testimony, it has been the policy of the City to support inner city neighborhoods.

This is certainly an inner city neighborhood, and one deemed worthy of support, as are all.

The neighbors themselves sought what we believe were legitimate constitutional reasons to improve the quality of life within that neighborhood.

The disparate impact, if it exists, I believe was properly pointed out by Judge Celebrezze, really exists between residents and nonresidents.

It is perhaps a little more convenient for those living on West Drive, that they would be most likely to proceed to the south and to go onto North Parkway, than the others, who may want to come across, but that it is certainly not a racial impact, really one of geography.

The record reflects, may it please the Court, that the proper procedures were followed in this case.

The residents filed a petition, they went before the Planning Commission.

The Planning Commission did as it does in all other types of street closings and alley closings.

It made an inquiry of all the city divisions and asked for the opinion of the division officers as to whether or not it should be closed.

Unidentified Justice: What is the racial composition of the Planning Commission?

Mr. Pierce: The Planning Commission, Your Honor?

The Planning Commission, Your Honor, is made up... I'm not certain of the racial makeup of the Planning Commission.

I'm confident there are some black members of the Planning Commission.

The City Council has three black councilmen out of 13.

The Planning Commission is merely a recommending body.

All land use matters go before the Planning Commission for its recommendation.

The Planning Commission itself is made up of citizen members, some appointed by the City and some appointed by the country.

The Planning Commission has a staff, of course, of professionals.

And then the board members themselves vote and pass their recommendations on along to the City Council, which must vote it up or down.

The record does reflect that proper hearings were made, that a hearing took place before the Planning Commission, a hearing took place before the City Council.

This was a contested matter.

It certainly was not something that was breezed or slipped through.

There were some very strong opinions about it, one reason being it was the first time it had really been done.

On a number of occasions streets had been closed.

Most of them had not been opened before; they had been dedicated to the City but had not been opened to through traffic.

On other occasions alleys had been closed that actually had been opened to through traffic but were closed on request of property owners that abutted the alleys.

This case was handled just like every other case.

There was a very active hearing before the Council, and I might state to Your Honors that in the hearing before the Council race was really not an issue.

I think one gentleman made some comments about the racial aspect of it.

But really, virtually none of the complainants at that particular time, white or black, made any comment about the racial aspect of it.

None of the councilmen, certainly not the black councilmen or the white councilmen, made any comment whatsoever about this being a racial matter.

It was debated, I think, because it was unusual.

It was because this was perhaps the first time that this type of planning, too, had been used to present--

Unidentified Justice: Mr. Pierce, does the record contain a transcript of the proceedings before the City Council?

Mr. Pierce: --Yes, Your Honor, it does.

Yes, sir.

It was not until after the hearing, Mr. Justice Stevens, when the City Council had listened to both sides, had debated among itself, had taken a vote and decided, not unanimously, I might add, on a split vote, had decided that this was a proper tool, that it was a reasonable--

It was not until after this time that the matter of race come up, and it came up on a petition to rehear, and ultimately a petition to reopen.

Now, one word with respect to the barrier itself.

The barrier is not the Berlin Wall.

The way it is established, it consists of two low curbs, one abutting Jackson Avenue, one abutting West Drive.

There is a small planting area between Jackson Avenue and the sidewalk.

There is then a sidewalk which is a continuation of all the other sidewalks along Jackson Avenue, which abuts the blacktop.

So one point that was raised by the plaintiffs in their brief that there would be a problem with pedestrian traffic is simply not true.

There is no way that there would be a trespass, technical or otherwise, for pedestrians desiring to come off of Jackson Avenue and go onto West Drive.

They can walk down the blacktop, or under our city ordinances, where there are no sidewalks, they're permitted to walk within 10 feet off the road, without any danger of trespassing.

So there is no technical trespass or otherwise.

Now, the Court is, I'm certain, familiar with the fact that the original petition, complaint, filed in this cause was dismissed and this case went to the 6th Circuit.

And the court remanded that back to the district court, setting out some rather basic ground rules, primarily a ground rule that for the plaintiffs to prevail there had to be discriminatory intent, and intent shown that the City of Memphis had granted to these residents of this predominantly white, or white residential area, a right that they had not granted to black citizens within the City of Memphis.

During the hearing of the trial court, that statement from the 6th Circuit, which it later in Greene II stated was dicta, we urged that upon the court, that that was really the issue facing him, Judge McRae, in that hearing, on the whole matter.

The judge did not agree with that.

Instead he had a full hearing.

He had, in effect, an Arlington Heights hearing.

He let everything in.

The plaintiffs were permitted to produce every bit of evidence they had with respect to racial impact, and with respect to racial intent.

The respondents have argued that the trial judge... and so did the majority in the 6th Circuit... argued that the trial judge had felt himself too constrained by the mandate of the 6th Circuit in Greene I.

And it was because of that constraint that he found no intent.

It's simply not true.

As I indicated, the record will indicate a very full hearing on this matter.

All issues were debated.

And at the conclusion, the trial court determined that certainly no starkness existed on which to place a badge of slavery.

He determined that on the record before him, the proof adduced in that case did not rise to the level of proving that there was any discriminatory intent on the part of the City of Memphis, in placing this barrier at West Drive.

Unidentified Justice: Mr. Pierce, does the record tell us why this happened at the particular time in history it did?

In other words, were there changes in traffic patterns or changes in the composition of the residential neighborhood, either in Hein Park or out, or why did this happen when it did?

Mr. Pierce: Your Honor, the record reflects that approximately three years before... I think, back in 1970, the neighbors became concerned about the traffic pattern, and if I may digress one minute to say something about the Hein Park neighborhood, as I indicated to you, this neighborhood is about 60 years old, and for a long period of time it was made up of a lot of original residents, senior citizen, elderly people.

Since that time, and in the past decade or so, younger people and young middle-aged people have moved into this neighborhood, have reclaimed these old houses, and have started to repair them and fix them up and turn them into a better neighborhood.

Unidentified Justice: Largely white?

Mr. Pierce: Largely white, but it is now integrated, Mr. Justice Brennan.

I think that the advent of young, small children was something new in Hein Park.

There really had not been many of them around.

All of a sudden, there were a lot of them around.

And I think this created a very real concern for the citizens in Hein Park, and they started about 1970 feeling a great concern about this.

And they talked to people within the City, they talked to Bob Fosnaugh, who was then the traffic engineer, and they had suggested trying to close off the whole park, to see if they couldn't do something about this.

That was obviously rejected as being unreasonable, but a suggestion was made to them at that time that the real culprit in this area was the traffic that was coming through West Drive, that if they could somehow shut off that major... what had become a country lane into a major thoroughfare through a very small, quiet residential area, if they could protect that neighborhood they could protect those children.

And this suggestion, really, of just stopping traffic at that one point came originally from someone within the City saying, that's something you might point toward.

As you go down Springdale, the area east of Springdale is predominantly black.

The area west of Springdale is predominantly white.

So there is a mixture, certainly, of white and black traffic through there.

But the court found that the impact would be more on black citizens than on white citizens, so I'm stuck with that.

Now, if it please the Court, an absence of intent was found by the district court.

It was found by Judge Celebrezze, and possibly by the majority of the 6th Circuit.

We have some problems understanding exactly what they've said.

But Judge Celebrezze is certainly of the opinion that the 6th Circuit decided this case on the basis of 1982.

We believe that 1982 does and should require a finding of racial motivation and intent.

The decisions of this Court would indicate that is a path which this Court would have us follow.

Going back to the dicta in Jones v. Alfred H. Mayer, talking about all racially motivated conduct, and following the line of cases of this Court, in Washington v. Davis, in Arlington Heights, and in Personnel Administrator v. Feeney, the path which this Court has indicated to us is that racially motivated, racial intent should be a requirement under 1982.

Unidentified Justice: Of course, before you can get to that there's the preliminary question about whether or not Section 1982 even in the presence of racial intent can apply in circumstances such as these at all.

Mr. Pierce: I agree.

I agree, Your Honor.

That is a question.

I'm very frank to admit we have trouble with understanding the majority opinion.

Judge--

Unidentified Justice: Well, did you ever make that claim in the courts below?

Mr. Pierce: --That 1982 is not applicable?

Unidentified Justice: In this case at all?

Mr. Pierce: I don't think it was really raised as much.

It was suggested.

Unidentified Justice: Not as much; any?

Mr. Pierce: I can't say if it was any at all.

It was mentioned, Your Honor--

Unidentified Justice: The Court of Appeals didn't address that discrete issue, did it?

Mr. Pierce: --No, I don't think so.

Unidentified Justice: It was certainly pleaded in the complaint.

Mr. Pierce: It was pleaded in the complaint, yes, Your Honor.

But as I say, as Judge Celebrezze indicated, he felt that the district judge certainly treated this as 1983 case, or as a case under the Fourteenth Amendment, an equal protection case.

But the 6th Circuit, the majority opinion, seems to indicate that they find it a 1982 violation.

Unidentified Justice: Mr. Pierce, what do you mean by requirement of intent?

Supposing one of the residents of Hein Park was a member of the Ku Klux Klan and openly and notoriously disliked persons of the black race and said so repeatedly and said, that's the reason he wanted to close off the Drive.

Would that have made it unconstitutional?

Mr. Pierce: No, I don't think so, Mr. Justice Stevens.

Unidentified Justice: Well, what do you mean by intent?

Mr. Pierce: The intent, I believe, has to run to the intent of the decisionmakers, and here it is the decision-making by the City Council.

Unidentified Justice: Well, aren't all the property owners part of the decisional process?

Don't they all have to consent?

Well, they are to an extent, but only in the fact that they are a competing interest, the same that the opponents are part of the policymaking.

The decisionmakers, the true decisionmakers which in this instance was the Council, they've got to weigh these interests, they've got to determine, make political decisions.

Mr. Pierce, is it your position that the only way this case can be upheld would be for the Council to have adopted a resolution that we are doing this for the sole purpose of denying these people their constitutional rights?

Mr. Pierce: No, Mr. Justice Marshall, that's not so.

Unidentified Justice: Well, what's short of that?

Mr. Pierce: That is not my statement.

Unidentified Justice: What's short of that?

Mr. Pierce: What's short of that?

Unidentified Justice: Yes.

Mr. Pierce: This court in Arlington Heights, Mr. Justice Marshall, has set a standard, has set a basis.

It has softened, in effect, the requirements that it might have found in Washington v. Davis, by saying that the court should make a sensitive inquiry into the background, and the question was asked of me whether or not, solely because some... some... we had a bigot in Hein Park who was a member of the Klan, that solely because of his reasoning that it should be considered constitutionally improper?

I don't think that just solely because of that it should be.

But that is something to took at, that is something that is a factor that can be considered in all of the relevant circumstances as indicated in the Arlington Heights case, and I think that was done in this case.

Unidentified Justice: And then you do a little psychoanalyzing of the minds of the Council.

Is that right?

Mr. Pierce: Well, I'm not prepared to say that, Mr. Justice Marshall, but I think that the Court can look at the record, it can look at what was said, it can look at whether it's a totally different concept, it can look at whether the procedure was followed, it can look if the substantive things were true.

All the tests set out in Arlington, I think, are the kinds of tests that should be used to determine, because obviously--

Unidentified Justice: And this... at least, one aspect of this case is it's a statutory case under 1982.

Mr. Pierce: Yes, sir, it is, and... but there's at stake--

Unidentified Justice: Although there is also reliance on the Equal Protection Clause, as I read it.

Mr. Pierce: --There is a distinction between this and what this Court did in Griggs, because Griggs was approaching a Title VII question.

1982, of course, is under the old civil rights statutes.

Unidentified Justice: That's right.

Mr. Pierce: Very broad, with no restrictions.

And as I think Judge Celebrezze saw, that to permit it without any kind of restrictions would put this Court and all courts in a situation where they would be weighing these policy decisions that the Congress had never weighed, purely under the guise of construing the statute.

I'd like to reserve whatever time I have, Mr. Chief Justice.

Unidentified Justice: Mr. Pierce, before you sit down--

Mr. Pierce: Yes, Justice Powell?

Unidentified Justice: --The district judge in his opinion that appears on page A-34 set forth the five factors that the court had identified in Arlington Heights that should be considered in a case of this kind arising under 1983.

Mr. Pierce: Yes, sir.

Unidentified Justice: And the district court in this case said, as I understood it, that he considered those five factors in weighing the evidence?

Mr. Pierce: Yes, sir.

Unidentified Justice: Is that correct?

Mr. Pierce: That is correct.

I think this case was tried as an Arlington Heights case.

I think it was tried on the basis of that test that this Court established in Arlington Heights.

Chief Justice Burger: Mr. Chambliss, there's only about a minute and a half remaining.

We won't ask you to split your argument.

So you can plan on beginning at 1 o'clock when we resume.

Mr. Chambliss: Thank you, Your Honor.

0 [Recess.]

Chief Justice Burger: Mr. Chambliss, you may proceed whenever you are ready.

Unidentified Justice: In other words, this, what's in the record here is wrong, and the entrance is right at the end of West Drive.

Because I had the impression, very candidly, that looking at their map, that one who went to the Zoo would go down University Avenue.

But looking at your map, I would assume they'd go right straight down West Park.

And the judge didn't say anything about the entrance to the Zoo.

Mr. Chambliss: Well, Your Honor, I submit that that's the issue in this particular case, that's one of the main issues.

Most of the residents from the Vollintine area used this passage for the Snowden Elementary School--

Unidentified Justice: The same.

Mr. Chambliss: --That they used this entrance right there... Snowden, many walked to Snowden Elementary School.

Many used this entrance at Jackson Avenue and Springdale to go to the Park and Zoo, and as you can see, there are many, many amenities in that Park and Zoo, and of course this Court is well aware of Overton Park v. Volpe, where you set out what's in that Park.

But I submit on the procedure issue... are I think we need to get the facts straight on procedure--

Unidentified Justice: Well, I do think the map submitted by the Hein Park group is quite deceptive, if that's a correct presentation.

But anyway, go ahead.

Mr. Chambliss: --Yes.

The fact of the matter is that that public hearing was scheduled and then from the record, and abruptly not scheduled.

They decided to close the street one month ahead of the public... well, they decided to close, not have the public hearing, but rather to have a closed Planning Commission hearing.

Now, at this Planning Commission hearing, the only persons who were invited to that hearing was the people in this area.

There was two families, white families, that objected to the closing.

Ms. Sarah Terry, and the Thomas family objected to this closing.

At the time they were told that everybody that abutted the affected area would have to sign the petition.

Once Ms. Sarah Terry and Ms. Thomas decided not to participate, then they changed their procedure and they basically decided that if these two homeowners would--

Unidentified Justice: Hard to see that.

We can't get it any higher?

Mr. Chambliss: --If the two northernmost-homeowners would consent to add their names to the petition, the City in effect would deed the land, a 25-foot slip of land in the middle, here, and half would go here and half would go here.

They put up barricades, extensions of the sidewalks, with little holes and with dirt, and of course they extended this sidewalk across it.

That was the plan that was submitted for the closing, after modification.

There was a public hearing without notice held in January, I think January 29.

And at that hearing there were approximately 40 or 50 people against the closing, and of course there was numerous other people, Hein Park residents, who were in favor of the closing.

Unidentified Justice: Mr. Chambliss, on the map point, is everything south of North Parkway a part of Overton Park, in this area, including the Zoo?

Mr. Chambliss: That's correct.

That's correct.

Unidentified Justice: So the Zoo is just one of the features of Overton Park?

Mr. Chambliss: That's correct, Your Honor.

There are many, many features of Overton Park here, and I think, I submit that in the brief they talk about there's not far to go, and what's been cut off from the distance, but most of these people rely on this area, not only to go to the Park and the Zoo, there's an Academy of Arts, the shell where children play, there's a swimming pool out in this area, and there's a golf course, there's Brooks Memorial Art Gallery, and various other things not shown here.

But that's, as I see it, Your Honor, that's one of the reasons why you have traffic.

Now, there's been no showing in the record that there was heavy commercial traffic.

All the traffic that was offensive and it's in the record, and the court found as a fact that they wanted to keep the "undesirable" traffic out, and we submit that those are catch-all phrases.

Unidentified Justice: Mr. Chambliss, on all of these things you're telling us certainly relate to the wisdom of the decisions made by these various bodies, but are there very many street closings in which there are not disputes, arguments over whether it should or should not be closed?

I start off by saying that in your decision, Richards, Arlington County v. Richards, if we could start off on that particular case.

Now, that was a case in Arlington where they were talking about off-street parking by I guess residents here, commuters.

But in that particular case, it was significantly different.

First of all, there was the elaborate hearing procedure.

There was a statutory scheming that was applied equally to the whole County; pursuant to that claim, that scheme, they came up with a formula, not just one particular area, but they came up with a general formula whereby if a certain amount of cars was in a neighborhood, the city manager would take a survey.

Then those people, in effect would apply.

And of course we submit in this particular case, we think that's a municipal land use case.

Again, I think it's a disputed matter, that this is not a traditional land use case, for several reasons.

First of all, there's testimony in the record from the City Planner, Mr. Miller, that the reason why the City didn't use... well, usually land-use matter zoning, they use an ordinance, and of course that takes public hearings, notice, an elaborate scheme.

What happened in this particular case was basically, somebody decided to accomplish indirectly what they couldn't accomplish directly.

They had a hearing before the public, the Planning Commission.

Thereafter they had a City Council hearing when no notice was given out.

Well, the record indicates that Ms. Terry, who was a white landowner here that objected, was given written notice of the hearing.

People showed up at the hearing, the allotted 15 minutes to the pros and cons, and then voted on it, on the closing.

Now, after they voted on the closing, there was another hearing that was held to reconsider.

There was... it is a part of the record, in that particular hearing there was some question as to whether or not there was a serious procedural due process problem.

So they decided to vote, not rule on it, on the reconsideration then; they took it over to another, to the 26th, that's in the record.

On the 26th of February, 1974, the record clearly indicates that the councilmen thought that they had violated the law.

They basically said, we have some serious problems with notice.

They then decided that they would have a public hearing, which they had on March 5, which was 2-1/2, three months after they closed the street.

And once they had the public hearing, they decided not to reopen it.

The public hearing was more or less on whether or not it should be reopened.

And I submit the record will indicate that there was a serious procedural violation of due process and then was substantive proceeding that was also applicable in this case.

For an example, initially, and the record would indicate, that all of the property owners were told that they had to sign the petition.

They signed the petition; everything was in order.

But--

Unidentified Justice: But your claim here really isn't one of denial of procedural due process.

You would say, if you'd had all the procedure in the world, at least, the majority of the Court of Appeals would have said it would still be a violation of 1982, wouldn't it?

Mr. Chambliss: --Yes, sir, that's right, Justice Rehnquist.

What I'm saying, and I have a... what I'm trying to say here is that the trial court made the correct finding.

There were little if any additional findings made by the 6th Circuit.

I'm basically saying there were a lot of other findings that could have been made that weren't made either by the district court or the Court of Appeals.

For an example, and I'm just... one, and I could go on, but I was saying of the serious due process problem that was not found inadequate by the lower court and it's not in the 6th Circuit.

Unidentified Justice: Did you argue that in the Court of Appeals?

Mr. Chambliss: Well, Your Honor, it was raised but I don't think it was pressed that hard, but it was raised.

It's in the brief; that's correct.

Unidentified Justice: Well, are you suggesting, Mr. Chambliss, that irrespective of the answer to the question whether racial motivation or intent has to be proved under 1982, irrespective of that, that for procedural due process reasons you're entitled to an affirmance of the Court of Appeals?

Mr. Chambliss: That's correct.

Your Honor, I think that there are several things.

I think that--

Unidentified Justice: Well, you are going to get to the question whether 1982 was--

Mr. Chambliss: --Yes, sir.

I'll start now, Your Honor.

Unidentified Justice: --All right.

Mr. Chambliss: There are two decisions that... this decision, of course, by the Court of Appeals, and a 5th Circuit decision, Jennings v. Patterson; I think it's a 1974, Judge Roman.

In that particular decision, I think it was Gates v. Georgia for an almost identical thing occurred.

Basically there was a street closure.

The city took no steps but the street closure was at the point where the black community and the white community met.

And there was one white person, a white family that lived on the other side of the barricade, and of course they had free access to and from.

Of course, the 5th Circuit had no problem under both 1982 and 1983 and the Fourteenth Amendment in saying that that was a violation of the law.

Now, in our particular case here, we take two positions.

We take, first of all, we are not sure and we think that the 6th Circuit had an adequate basis for either ruling under 1982 or 1983, first of all.

And the Fourteenth or the Fifteenth Amendments.

I take a firm position, however--

Unidentified Justice: You mean the Thirteenth, do you?

Mr. Chambliss: --Yes, Thirteenth and Fourteenth Amendments.

We take a firm position though, Your Honor, that the 1982 statutory claim and that we take the position that the question of whether intent of public discrimination is really not before this Court, but if it were I think that we could prevail on that, by the mere fact that--

Unidentified Justice: Why isn't it before the Court?

Mr. Chambliss: --Well, I think that a correct reading of the 6th Circuit opinion shows clearly that they basically said that we leave open the question of whether or not 1982 will be, leave open for the intent, to show a violation of 1982.

They left that question open.

It's in the opinion.

Unidentified Justice: I take it we should read their opinion as saying that even if intent is necessary, it is present in this case?

Mr. Chambliss: In this particular case.

Unidentified Justice: Is that what you mean?

Mr. Chambliss: That's correct.

Unidentified Justice: And without ruling on whether intent is an essential element, if it is, it's here?

Mr. Chambliss: That's correct, Your Honor.

That's the correct.

And I submit that everything I have said is in addition to--

Unidentified Justice: Intent, Mr. Chambliss... intent to be inferred from impact or express, or proof of express impact?

I think that, first of all, under the Arlington Heights, the first that they were talking about, and taking the admonition of this particular Court, the district court found that they had a disproportionate impact on the black community.

They made three findings on impact, so impact is there.

As to the second point, I think that the record is clear that the historical development of the decision shows clearly that not only were there irregularities in terms of the procedure but I think the record clearly indicates that the official actions of the decisionmakers were less than good faith because even the people, the white people who appeared... let's take for an example Ms. Terry, she--

Mr. Chambliss: Well, I think there are several factors here, and the 6th Circuit did not rule specifically on the question of intent.

They had 1982 and 1983 and it basically says, we find that there was action on both, and I think that--

Unidentified Justice: They said it was a badge of servitude.

As I read their opinion, they didn't conclude one way or the other on the question of specific intent.

Mr. Chambliss: --Well, I think that if you go back to Arlington Heights and the necessity of inquiring, and you go to the five admonitions of the court, I think they found each one.

I think there was a substantial departure from the substantive area of the law, i.e., they first said everybody had to sign the petition, then they changed in the minutes and the record.

I think that if you look at the procedural problems, you'll find that the whole notice and the whole nature of what was going on was stark.

The court made a finding, this was the first time that there had ever been a major street closing, a thoroughfare.

Now, when the case originally went to the 6th Circuit and was remanded back, the 6th Circuit basically said that to show 1982 and 1983 you must show number one, that grieved... that whites were given or conferred benefits that blacks were denied, and you must show that the officials acted with racial angles.

Now--

Unidentified Justice: Mr. Chambliss, the Court of Appeals said that there was a 1982.

What does badge of slavery mean?

Mr. Chambliss: --Well, the badge of slavery comes in in terms of the barricade.

There was evidence in the record that this property here--

Unidentified Justice: Well, let me put it more directly.

Is "badge of slavery" a code word for intent?

Mr. Chambliss: --I would say, yes, it has to be.

Yes.

And under the limited 1983 and Thirteenth Amendment cases.

I wouldn't apply this to employment, I wouldn't apply this to public--

Unidentified Justice: In other words, for violation of the Thirteenth Amendment, if there is a "badge of slavery", that's a violation of the Thirteenth Amendment without regard to whether it's done intentionally or otherwise.

Is that it?

Mr. Chambliss: --That's correct.

The Thirteenth Amendment, that's the position we take, Your Honor.

Unidentified Justice: That's what the language of the Thirteenth Amendment says.

We take the position, Your Honor, that if and when you look at this particular case, if you look at the aggregate, and if you take the Arlington Heights prerequisites, you'll find each and every one of those elements there.

The court made findings that these people up here didn't want the black people in the neighborhood; the court made finding that the property here would be appreciated while this property here would be depreciated.

They made excellent findings, they just ruled the other way.

They just... the threshold on the intent question was just, we think, too high.

Unidentified Justice: When you say that the Court made findings, you're speaking of the Court of Appeals or the district court?

Mr. Chambliss: The district court.

The Court of Appeals, Your Honor, made very little change to it.

The case that you have in this particular Court is pretty much the same case you had in the district court.

The only thing is, the court, basically, we see impact, but we don't think there was intent and purpose.

That's what the district court said.

The Court of Appeals, basically, expanded on that and he said, looking at this thing from an Arlington Heights perspective, we find that there was indeed a badge of slavery by the mere fact that the aggregate of the situation coupled with the impact, coupled with the statement that they didn't want these people here, coupled with the fact that they said this was the first time the City had ever used a street enclosure... unused street.

Let me say that again.

The procedure that was used was unused streets and alleys closed.

There had never been any challenge to an unused street and alley procedure.

But I think, Your Honor, that when we are dealing with inferred intent, we're dealing with circumstantial evidence.

When we're trying to find out what the decisionmakers meant, I think that process that this Court announced is very helpful and the district court, I think, went through that process, like able counsel here stated.

But I just think that the threshold of the 1982 and the whole intent element was just a little too high.

Unidentified Justice: Well, is it your position, then, that the Court of Appeals found intent, or that it simply found intent was unnecessary to find a violation of 1982?

Mr. Chambliss: Well, I think it's two things.

I have to answer that way.

xx One, that intent was unnecessary, but intent, it was found in this particular case.

I think that, and I started off by saying, I think this is a very bad case to deal with the question of intent because the record clearly shows all kinds of irregularities, violations, and departure from normal procedure, and I think on the evidence credited to the district court, that we prevail on the issue of intent.

He made findings of that.

He made findings about the disparate treatment, he made findings about the first time this procedure was being used, he made findings the whites here didn't want the blacks in the neighborhood.

There was also additional evidence to show that they wanted to cut out the undesirable element, there were alternative routes.

For an example, why, if you want to stop the traffic, why not close the street at the southern end?

Or why not put speed breakers?

Or... and this is also, he found this, that historically this neighborhood is the only area that is without sidewalks, so if you're talking about safety of the children, and there is a law in the City that basically says, sidewalks are a prerogative, that you consider a sidewalk.

Schools, public playground, and parks.

Now, all of these areas, all the black area is sidewalked, but West Hein Park historically has never had sidewalks.

So if you're thinking about, if you're talking about safety of the children, why not erect sidewalks?

They didn't consider that.

We talked about putting speed breakers.

They wouldn't consider that.

One Council member said that, when the compromise was being worked out, she said, in essence, anything other than a complete closure, we were not going to settle for.

So I think if the Court will look at all of the facts in the circumstances, using the sensitive inquiry, that the Court will in fact affirm the 6th Circuit opinion of the other court.

Unidentified Justice: Mr. Chambliss, would the argument be different if Hein Park were an integrated neighborhood?

Mr. Chambliss: On these facts--

Unidentified Justice: Because your opponent said... I don't find anything in the record, but your opponent said it's now an integrated neighborhood.

Mr. Chambliss: --Well, the judge made findings and the findings are on page... of the Joint--

Unidentified Justice: See, the legal issue in some ways would remain the same, because the impact would still be on excluding traffic that was primarily black.

And I'm wondering if you would have the same theory if an integrated neighborhood interested in reducing the amount of traffic to which... when children play in the streets and that sort of thing, were to cut off a traffic flow that was primarily black, but the neighborhood itself was mixed?

Mr. Chambliss: --Well, I think it would be a different question, sir.

I think that you have several things going here.

You have action to perpetuate the past effect of discrimination.

But over and above anything, that you have here a departure from everything that the City followed as it relates to the--

Unidentified Justice: Well, let me change it.

Supposing all the facts were exactly the same in this case, except for the fact that the residents of Hein Park were half black and half white.

Unidentified Justice: Well, the reason for it is, the impact of the interference with traffic would still be primarily against blacks.

Mr. Chambliss: --I don't think but, see, I'm not... I'm not, this is a racial discrimination case, not... I don't doubt the wisdom of a city to use its police power for legitimate objectives.

Unidentified Justice: Can it ever be legitimate to block a street that is primarily used by blacks?

Mr. Chambliss: Oh, I think in some cases--

Unidentified Justice: When some of the people who benefit from the blocking are white?

Mr. Chambliss: --Well, I would say, in some circumstances, Your Honor.

I'm not going to go that far and say, ever.

I would say, in some circumstances.

I think if you... if a city had the authority to close a street and they had public hearings and it was shown, as it was shown in the Arlington v. Richards case, I think that it doesn't matter whether the neighborhood is black or white if in fact it is done pursuant to an overall scheme.

Now, some other things.

The City Council had before it at this hearing some other areas in the City who had applied to have, like here, to have their street closed.

I think it's a dangerous precedent, and I think that for that reason alone that the Court should look at this very, very closely.

Unidentified Justice: Mr. Chambliss, before you sit down, do you have any comment at all on Palmer v. Thompson, the swimming pool case?

Mr. Chambliss: Yes, I do.

I think this case is much different from Palmer because in Palmer blacks and whites were denied the swimming, you know, swimming... they just closed.

Jackson, Mississippi, just closed the swimming pool altogether.

And I think that this particular Court basically took the position that there was nothing wrong.

I think there was an additional factor that the city was losing money, and that basically the Court said, we're not going to look into the motives of why people vote for certain things, because this is a political give and take.

I think that's correct in an appropriate setting, but I submit to you that this is a very different case, because everything in this case was done that was contrary to the way the City normally did things.

And I think that given the fact that this was a black community, given the fact that there was a substantial departure, I think it's just... thank you.

Just that I have, I'm sure, a very short period of time to cover a lot of ground.

Number one, due process is not an issue, if the Court please.

This is... the whole argument Mr. Chambliss has been making about procedures were not followed, this was brought up and discussed ad nauseam in the lower court and in the Circuit Court of Appeals.

Both of those decisions, both the trial court and the circuit court found no due process violations.

They found that the procedures were proper and it was not appealed from, and I believe it's been foreclosed in this Court.

Mr. Chambliss keeps mentioning about sidewalks.

There are sidewalks, and there is proof in the record that there are areas all over Memphis, in black neighborhoods and white neighborhoods, mixed neighborhoods, where there are no sidewalks, where there are no curbs and gutters.

There are reasons for that.

And I don't think that's an issue here.

It was brought up originally in the original complaint that was filed by Mr. Greene in his official, first complaint; which I think there were four complaints filed before the case ever got up.

That was one of his original complaints.

The question of speed breakers.

Under the common law of Tennessee, cities may not have speed breakers on through streets, on open streets.

So that was foreclosed.

That question was asked by a member of the City Council and he was advised of that fact at that particular time.

Finally, with respect to the map situation, Mr. Justice Stevens made some statements about that.

I don't believe, Your Honor, that there was any attempt to deceive on anyone's part.

If I may see Mr.--

Unidentified Justice: It is correct that the map in the Hein Park amicus brief leaves out--