Edelman v. California/Concurrence Jackson
Mr. Justice JACKSON concurs except that he thinks it is not material whether California will grant habeas corpus in this case. True, the petitioner's original appeal to the California court sought to raise a federal question. That was not passed upon because the appeal was dismissed for default. Whether the default should be considered excusable by any court is left highly in doubt by the record. At all events, in asking relief from it there was no claim that to take a default under such circumstances is forbidden to a state court by the Constitution of the United States, and such a claim would be frivolous if made. Hence, the petitioner is out of court for reasons of state law and practice, and the writ of certiorari should be dismissed.

Mr. Justice BLACK with whom Mr. Justice DOUGLAS concurs, dissenting.

The petitioner was convicted of 'vagrancy' in the Municipal Court of Los Angeles. He was given a 90-day jail sentence. The conviction for vagrancy was based primarily on what he had said in public speeches made in a Los Angeles park. He appealed to the Appellate Department of the Superior Court which was the highest court in California in which he could obtain review. One of a number of grounds of appeal was that the vagrancy statute was unconstitutional because vague and indefinite. The rules of the California appellate court specifically require that an appellant or his attorney of record shall be mailed notice of the date on which his appeal will be heard. California admits that no such notice was given petitioner or his counsel of record on appeal and that neither knew the case was set for hearing. As a result neither was present when the case was called in the appellate court. Consequently that court affirmed the jail sentence by default without argument or consideration of the merits of the conviction or the constitutionality of the vagrancy statute. Immediately after discovery of this default affirmance petitioner moved to vacate the action. With full knowledge of all the foregoing facts, the appellate court denied the motion. Petitioner has thus had his constitutional contentions rejected and his conviction affirmed without notice and an opportunity to be heard through himself or counsel. In California, the right of appeal 'is guaranteed by the Constitution to the prisoner and is as sacred as the right of trial by jury. It is one of the means the law has provided to determine the question of his guilt or innocence.' Ex parte Hoge, 48 Cal. 3, 6; In re Alboria, 95 Cal.App. 42, 50-51, 272 P. 321. Under these circumstances I agree with petitioner that refusal to give him or his counsel an opportunity to be heard in the appellate court denied him the due process of law guaranteed by the Fourteenth Amendment. See In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682; Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644; Powell v. State of Alabama, 287 U.S. 45, 68,  53 S.Ct. 55, 63, 77 L.Ed. 158. Such a denial of due process cannot be justified by the state on any 'adequate non-federal ground.' For this reason I would not dismiss the certiorari but would reverse or vacate the appellate court's judgment.

The Court rests its dismissed on a belief that the petitioner can still test the validity of his conviction in a habeas corpus proceeding in the California state courts. And the Court's belief as to availability of a state remedy is buttressed by a presumption that a state will not deny a remedy for deprivation of a constitutional right such as here alleged. Mooney v. Holohan, Warden, 294 U.S. 103, 113, 55 S.Ct. 340, 342, 79 L.Ed. 791. Moreover, should California refuse to grant petitioner a remedy to test the constitutionality of the Vagrancy Act, he could then seek relief in a United States district court. See Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. But my doubt about the availability of an adequate state remedy leads me to conclude that the wiser course here would be to vacate the appellate court's judgment for a clarification of the bases of its action. See State Tax Commission v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950; cf. Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789. For even superficial examination of the California vagrancy statute and petitioner's trial under it will reveal the gravity of the constitutional questions which petitioner urges and which the appellate court left unconsidered and undecided.

Subsection 5 of § 647 of the Penal Code of California provides that 'Every idle, or lewd, or dissolute person, or associate of known thieves * * *' is a vagrant, punishable by fine of not more than $500 or by imprisonment of not more than six months, or both.  Petitioner was charged with and convicted only of being a 'dissolute' person. The ambiguity and consequent broad reach of this crime of 'dissoluteness' is patent. The trial court's efforts to reduce the ambiguity greatly increased it. The judge told the jury that petitioner was not accused of 'any violation of any particular act' but with being a person of 'a certain status' or 'in a certain condition.' His 'character' alone was involved, since 'vagrancy is a status or a condition and it is not an act.' Petitioner was therefore to be tried for a subjective 'status,' not the easiest thing in the world to prove or disprove. And petitioner's difficulty was not made easier by these additional statements to the jury:

'Vagrancy is a continuing offense. It differs from most other      offenses in the fact that it is chronic rather than acute;      that it continues after it is complete and subjects the      offender to arrest at any time before he reforms. One is      guilty of being a vagrant at any time and place where he is      found, so long as the character remains unchanged, although      then and there innocent of any act demonstrating his      character. * * * His character, as I said before, is the      ultimate question for you to decide.'

The dictionary definition of dissolute given to the jury by the court described a crime of such nebulous amplitude that no person could know how to defend himself. The court said:

'Now, dissolute is defined as 'loosed from restraint,      unashamed, lawless, loose in morals and conduct, recklessly      abandoned to sensual pleasures, profligate, wanton, lewd,      debauched.' Now, the word 'dissolute,' as you see from this      definition, covers many acts not necessarily confined to      immorality. Other laxness and looseness and lawlessness may      amount to dissoluteness.'

During a nine-day trial the jury heard a number of witnesses who patently did not like what petitioner said in the many speeches he had been making in the park. There seems to be no doubt that his speeches chiefly involved political or economic questions and included attacks on the local police force. One witness who testified that petitioner had publicly accused him of being a thief also swore that he had heard petitioner advocate 'force and violence, stating that a change could not be brought about except by bullets.' Other hostile witnesses testified to his use of intemperate language. A policeman swore that petitioner had prophesied that he 'would not be given a fair trial'-a prophecy which I fear this record viewed as a whole does not entirely refute. There was also evidence that petitioner had solicited funds to aid him in carrying on his publicity work, and to help pay for his defense in numerous cases that were instituted against him in the municipal court. In one of these cases he had been charged with defacing a park bench of thick concrete by standing on it to make a speech.

It would seem a matter of supererogation to argue that the provision of this vagrancy statute on its face and as enforced against petitioner is too vague to meet the safeguarding standards of due process of law in this country. This would be true even were there no free speech question involved. And in that field we have said,

'It is settled that a statute so vague and indefinite, in      form and as interpreted, as to permit within the scope of its      language the punishment of incidents fairly within the      protection of the guarantee of free speech is void, on its      face, as contrary to the Fourteenth Amendment.' Winters v.      People of State of New York, 333 U.S. 507, 509, 68 S.Ct. 665,      667, 92 L.Ed. 840.

The free speech question was so obviously involved in this vagrancy prosecution that the court charged the jury at length about free speech. He even submitted to them the question whether petitioner's speech constituted 'a clear and present danger. * * *'

I adhere to the view that courts should be astute to examine and strike down dragnet legislation used to abridge public discussion of 'views on political, social or economic questions.' Schneider v. State of New Jersey, 308 U.S. 147, 161, 163, 60 S.Ct. 146, 150, 151, 152, 84 L.Ed. 155. 

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