author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael G. THEVIS and Peachtree News Company, Inc., Defendants-Appellants.
    No. 71-2614.
    United States Court of Appeals, Fifth Circuit.
    Sept. 12, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 15, 1973.

      Robert E. Smith, Atlanta, Ga., Norman J. Abood, Jacksonville, Fla., for defendants-appellants.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Richard C. Owens, Atty., U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and BELL and SIMPSON, Circuit Judges.
   BELL, Circuit Judge:

Appellants Thevis and Peachtree News Company, Inc. were charged in a twelve-count indictment with transporting obscene material by common carrier in interstate commerce, in violation of 18 U.S.C.A. § 1462. Jury trial was waived. The subject matter of each count was a particular magazine and appellants were convicted on each of the counts. The district court, 329 F.Supp. 265, found that the material in question, i. e., each magazine, was obscene under the three-pronged test of Memoirs. A term of six months imprisonment and five years probation was imposed on Thevis under each count, with the sentences to be served concurrently. In addition, fines were imposed on each defendant with respect to each count. This appeal followed. We affirm with respect to six counts and reverse as to six.

In urging reversal, appellants originally presented five arguments to this court. These were: (1) that the constitutional test for obscenity must focus on whether “pandering” is involved in the distribution of challenged material, and on whether the material is distributed to minors or unwilling adults,’cf. Redrup v. New York, 1967, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515; (2) that the indictment was unconstitutionally vague in that it merely tracked the statutory language without specifying the elements constituting “obscenity”; (3) that it was necessary for the government to prove that the appellants had transported the magazines knowing that they were obscene in the constitutional sense; (4) that 18 U.S.C.A. § 1462 is void for overbreadth in that it reaches transportation of obscene material for private as well as commercial use; and (5) that the prosecution failed to prove by competent evidence that the magazine fell outside the protection of the Memoirs standard. We understand appellants’ fifth assignment of error to include two distinguishable elements: first, that the prosecution failed to produce sufficient expert testimony; and second, that the evidence, of whatever nature, was insufficient to support the lower court’s finding on the issue of obscenity vel non. We will treat these two elements as separate assignments of error.

Subsequent to oral argument, the Supreme Court announced five opinions in which a majority of that Court agreed on concrete guidelines to isolate materials depicting or describing “patently offensive ‘hard core’ sexual conduct” from expression protected by the First Amendment. Miller v. California, 1973, 413 U.S. 15, 27, 93 S.Ct. 2607, 2616, 37 L.Ed.2d 419, 432; Paris Adult Thea-tre I v. Slaton, 1973, 413 U.S. 49, 93 S. Ct. 2628, 37 L.Ed.2d 446; United States v. Orito, 1973, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; Kaplan v. California, 1973, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200-Ft. Reels of Super 8 mm Film, 1973, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500.

In light of these opinions, appellant has filed a supplemental brief urging that the Memoirs standard can no longer be used for testing obscenity. Further, in this brief it is argued that the Miller standard is also inapplicable, for two reasons: (1) that application of the new standard would be violative of the Ex Post Facto clause of Article I, § 9, United States Constitution; and (2) that in any ease the material in question would be protected under Miller because 18 U. S.C.A. § 1462, as written or authoritatively construed, does not specifically define that sexual conduct whose depiction or description is thereby regulated. In essence, appellants are contending, on the authority of Miller, that the Supreme Court has eliminated all obscenity laws that would have been otherwise applicable to transactions occurring prior to June 21, 1973, and that the Court has also eliminated all laws controlling obscenity after that date, save as legislatures enact or courts construe statutes to meet the Miller requirements. In sum, claim the appellants, we are without power to test the materials for obscenity under any standard. We reject this broad contention. We do not perceive that the Supreme Court, either deliberately or unwittingly, has stripped the nation of laws against obscenity in any such manner.

For reasons to be discussed in Part II of this opinion, we hold that the twelve magazines are to be tested for obscenity under both standards, with the appellants in every instance to receive the benefit of the most favorable standard. We reserve the issue of obscenity vel non, under both standards, for Part III. In Part I we shall consider appellants’ first five original assignments of error.

I.

Appellants’ first assignment of error is that the materials in question should not be tested under a standard as restrictive of pornography *as Memoirs. Rather they urge a standard arguably suggested in Redrup v. New York, supra, requiring for a finding of obscenity that the materials be distributed to non-consenting adults, to juveniles, or generally in a “pandering” manner. We consider this argument to have been completely foreclosed by the Supreme Court’s statement, in Miller, that the Memoirs standard was correctly viewed as the limit on state prosecution prior to Miller, 413 U.S. at 30, 93 S.Ct. at 2618, 37 L.Ed.2d at 435. We also find entirely spurious the argument that there was such a marked departure in Redrup from the basic assumption of Memoirs, that the nature of the material and not the manner of its distribution is determinative of obscenity. In the Red-rup per curiam opinion, the Court specifically declined to consider the effect of the characteristics of the method of distributing pornographic materials. Finally, we note that the origin of the “pandering” concept is Ginzburg v. United States, 1966, 383 U.S. 463, 86 S. Ct. 942, 16 L.Ed.2d 31, and that pandering in that case was specifically treated merely as an indicator of whether the material itself appealed to prurient interests and was utterly without redeeming social value. See Ginzburg, 383 U.S. at 467-476, 86 S.Ct. 942.

Appellants’ second argument is that the indictment, which tracked the wording of 18 U.S.C.A. § Í462, must be dismissed for failure to specify the elements of obscenity. We do not agree. The general rule, stated by this court, is that:

“An indictment which follows the language of the statute is ordinarily sufficient unless the statute omits an essential element of the offense.”

United States v. Farabee, 5 Cir., 1969, 411 F.2d 1210, 1211; Downing v. United States, 5 Cir., 1965, 348 F.2d 594, 599. See also Esperti v. United States, 5 Cir., 1969, 406 F.2d 148; Bland v. United States, 5 Cir., 1962, 299 F.2d 105. The statute here does not omit any essential element of the offense for which appellants have been convicted. The term “obscene” as used in the statute is a legal term of art, not merely a generic or descriptive term. The term has been the subject of much explication in Supreme Court opinions, and in particular has been defined in Roth and Memoirs. Further, in Roth the Court held that the words used in 18 U.S.C.A. § 1462 are sufficiently precise to avoid the due process vice of vagueness.

Appellants’ third contention deals with the scienter necessary for conviction under 18 U.S.C.A. § 1462. Appellants claim that it is necessary for the government to prove not merely knowledge of the nature of the materials placed in interstate commerce, but also to prove that appellants were aware that the materials were legally obscene.

Appellants base this argument on Smith v. California, 1959, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. In Smith, the Supreme Court reversed the conviction of a book store proprietor under an ordinance that imposed absolute criminal liability on any party possessing obscene matter for sale. The Court held that scienter, of some nature, was a necessary element where First Amendment Rights were concerned. However, the Court pointedly did not pass on the nature of the requisite mental element. Apparently the Court did not disturb its holding in Rosen v. United States, 1896, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606, that knowledge or notice of the contents of obscene material is sufficient and that it need not be shown that the material was, in the opinion of the accused, legally obscene. A number of lower courts have followed Rosen in recent years: United States v. West Coast News Company, 6 Cir., 1966, 357 F.2d 855, rev’d on other grounds, Aday v. United States, 1967, 388 U.S. 447, 87 S. Ct. 2095, 18 L.Ed.2d 1309; Schindler v. United States, 9 Cir., 1953, 208 F.2d 289. See also Kahm v. United States, 5 Cir., 1962, 300 F.2d 78. We hold that the government, by proving that the appellants knew the nature of the materials they put in interstate commerce, has met its burden of proving scienter.

The appellants’ fourth contention is that the statute under which they have been prosecuted is overbroad because it fails to distinguish between transportation of obscene materials for private use and that for commercial distribution. This argument arises from Stanley v. Georgia, 1969, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, which established that individuals may possess obscene materials in the privacy of their own homes; and it assumes that there is a correlative right to transport and receive such material for private use. Whatever validity, if any, this reasoning may ever have had was badly eroded by United States v. Thirty-Seven Photographs, 1971, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822, and United States v. Reidel, 1971, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813. The argument has now been absolutely foreclosed by United States v. Orito, supra. In Orito the Court ruled against a defendant who made precisely the same claim raised here.

The first element of appellants’ fifth contention is that their conviction is precluded by the government’s failure to use sufficient expert testimony on the issues of prurient appeal, community standards, and redeeming social value. We held in United States v. Groner, 1973, 479 F.2d 577 (En banc), that expert testimony on the part of the prosecution is not necessary in cases where the materials themselves are available for inspection by the finder of fact. That we were correct in this opinion was made clear in Paris Adult Theatre I v. Slaton, supra, 413 U.S. at 56, 93 S. Ct. at 2634, 37 L.Ed.2d at 456. See also Kaplan v. California, supra, 413 U.S. at 120, 93 S.Ct. at 2684, 37 L.Ed.2d at 498.

II.

We now turn to the issues raised in appellants’ supplemental brief, dealing with whether Miller precludes testing for obscenity under any standard.

In Miller the Court states that the constitutional test for obscenity is whether:

“(a) [T]he average person, applying ‘contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,” (citations omitted)
“(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
“(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

In Orito, supra, and 12 200-Ft. Reels, supra, the Court made clear that this standard also applies to prosecutions under federal statutes. It might be noted that Miller relaxes the government’s burden by eliminating the Memoirs requirement that the material be proven “utterly without redeeming social value”, and by the Court’s clarification that “community standards” does not refer to a nationwide community. On the other hand, in order carefully to limit regulation of pornographic materials, so as to avoid First Amendment incursions, the Miller standard requires that regulatory statutes define specific sexual conduct to whose depiction or description they apply. However, the Court makes clear that the statutory requirement can be satisfied by a judicial gloss, and that statutes as broad as 18 U.S.C.A. § 1462 are subject to such construction. See 12 200-Ft. Reels, supra, fn. 7 (discussed and quoted at p. 13 infra).

Having thus stated the standards governing control of pornography, and having also resolved other points of uncertainty, the Supreme Court in each case, and in some 60 other cases dealt with summarily or by per curiam decision on July 25, 1973, vacated the judgments and remanded for fjirther proceedings not inconsistent with the Miller series of opinions.

Appellants would have us conclude that the Court’s wholesale vacation and remand of obscenity cases, and especially that of Kaplan v. California, supra (in which the Court agreed that the material was obscene under the Memoirs standard), established that the Memoirs standard could not have been used as a basis for conviction in pending cases.

We decline to read so much into Miller. Rather, we conclude that by indiscriminately vacating and remanding these cases, the Supreme Court declared that all obscenity cases which had not reached final adjudication should be reexamined in light of its clarification of previous standards and its declaration of new standards. We do not read this as precluding our application of the Memoirs standard to materials involved in transactions occurring in 1970. Wb base this conclusion on several observations. For one, we note that the Supreme Court in Miller stated specifically that Memoirs was “correctly regarded at the time of trial as limiting state prosecution under controlling case law.” 413 U.S. at 30, 93 S.Ct. at 2618, 37 L.Ed.2d at 435.

Further, at no point did the Court indicate that Miller’s clarification and modification of Memoirs was the result of Memoirs permitting unconstitutional infringement on efforts to distribute pornography. Rather, the Court was’ dissatisfied with Memoirs, because it imposed greater burdens on the regulation of such materials than was demanded by the Constitution. Thus the Court criticized the “utterly without redeeming social value” requirement as being a “burden virtually impossible to discharge under our criminal standards of proof.” Miller, 413 U.S. at 22, 93 S.Ct. at 2613, 37 L.Ed.2d at 429, and it stated that “it is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City”. Id., at 32, 93 S.Ct. at 2619, 37 L.Ed.2d at 435. We are unable to conclude from the Court’s wholesale remand of these cases, without more, that the Court, concerned as it was for strengthening the power to regulate pornography, chose gratuitously to eliminate constitutionally-valid law that would otherwise be available in prosecuting pending obscenity cases.

However, we do believe it to be our duty, under the Miller remands and in view of the care with which the judiciary must protect First Amendment rights, to assure that no one is convicted under earlier extant standards if they are more restrictive of pornography than those in Miller. Thus when we make, as we are required to do, an “independent constitutional judgment on the facts of the case as to whether the material is constitutionally protected”, Jacobellis v. Ohio, 1964, 378 U.S. 184, 190, 84 S.Ct. 1676, 12 L.Ed.2d 793; United States v. Groner, 5 Cir., 1973, supra, we shall consider both the Miller and Memoirs definitions of obscenity. Any count based on a magazine which is not obscene under both of these standards is due to be dismissed.

Our dual test approach is out of an abundance of caution based on the surmise that the Supreme Court, by vacating and remanding the entire group of obscenity cases, indicated that defendants in pending prosecutions were entitled to the benefit, if any, of the new standards. That our decision in this case must so accommodate the new standard is made evident by Miller v. United Statfes, 1973, 418 U.S. 913, 93 S. Ct. 3030, 37 L.Ed.2d 1022. There the Court vacated and remanded a federal conviction for reconsideration in light of the Miller series of opinions. The federal conviction was under the Memoirs standard and the very statute here involved, and against a defendant who raised on appeal contentions similar to those made by the appellants here. See Miller v. United States, 9 Cir., 1970, 431 F.2d 655.

Therefore, before we consider the question of obscenity vel non, and because we do apply the Miller standard, we must address ourselves to the question whether 18 U.S.C.A. § 1462 can satisfy the Miller requirement that the applicable statute specifically define sexual conduct whose depiction or description is thereby restricted. This assumes, of course, that the Supreme Court intended for appellants to have the benefit of the Miller standard.

The statute under which the appellants were indicted proscribes interstate transportation of “obscene, lewd, lascivious, or filthy” materials. On its face, this statutory terminology does not contain the specifics required by Miller. The same, of course, might have been said of the statute while Memoirs controlled the definition of obscenity. The difference is that Miller requires that elements of the definition be a part of the statute. This requirement may be met, however, according to Miller, by authoritative judicial construction. Further, in 12 200-Ft. Reels, supra, at fn. 7, the Court states that it is “prepared to construe such [federal statutory] terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard-core’ sexual conduct given as examples in Miller. . We believe that this answers the question and that the definition of Miller is a gloss properly added to § 1462. The effect is to substitute the Miller definition of “obscene” for the Memoirs definition. On this basis we proceed to an examination of the materials which underlie the indictment.

III.

In making our independent constitutional judgment under Jacobellis v. Ohio, supra, as to whether the materials in question are constitutionally protected, we have inspected the magazines in question and have applied both the Memoirs and Miller standards. Our conclusions on each element of both tests as to each magazine are contained in Table I.

In summary, we have concluded that all of the magazines are obscene under Miller, but that six are protected by the Memoirs requirement that they be utterly without redeeming social value. We have distinguished these six from the remainder on the basis of their significant content of literary matter, including short stories of at least arguable merit as well as discussions of lesbianism, homosexuality, nudity, censorship, photography, marital sexual problems, and the nude in fine art. The inclusion of this literary matter in significant proportions precludes a finding, in our judgment, that the six magazines are “utterly without redeeming social value.” The issue as to these six is close, due to the numerous pornographic pictures included with the literary matter. Indeed, the pictures in each instance are the principle content of the magazines and would, standing alone, be found obscene.

Since we have ruled that appellants are to receive any protection provided by either applicable standard, their convictions on the six counts based on magazines we find to be protected by Memoirs must be reversed. The judgment of conviction as to the other six counts is affirmed.

Affirmed in part; reversed in part.

      . 18 U.S.C.A. § 1462 (1966) :
      Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce — 1

        (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; . . .
      shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense.

      . A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1.

      . “Pornography” derives from the Greek (porné, harlot, and graphos, writing). It now means “1: a description of prostitutes or prostitution. 2: a depiction (as in writing or painting) of licentiousness or lewdness : a portrayal of erotic behavior designed to cause sexual excitement.” Webster’s New International Dictionary (Unabridged, 3d Ed., 1969). Whether or not the material in question is obscene, it is pornography. This latter term connotes no legal conclusions or consequences.

      . Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

      . The sufficiency of an indictment tracking thé words of 18 U.S.C.A. § 1462 was challenged in United States v. Luros, N.D.Iowa, 1965, 243 F.Supp. 160, rev’d on other grounds, 8 Cir., 1968, 389 F.2d 200. That court reached a conclusion identical to ours. U. at 166-167.

      . Some of the auxiliary rulings were noted above when this court dealt with various of the appellants’ original arguments for reversal. See Part I of this opinion.

      . We do not assume, given ex post facto considerations, that the Supreme Court intended to impose any detriment ensuing from the Miller standards on appellants.

      . These examples are:
      “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
      “(b) Patently offensive representations or descriptions of masturbation, excretary functions, and lewd exhibitions of the genitals.”

        Miller, 413 U.S. at 25, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.


source: Caselaw Access Project

author: DONALD RUSSELL, Circuit Judge:

license: Public Domain

text:
    CAPITAL INVESTORS CO. et al., Appellees, v. EXECUTORS OF the ESTATE OF Arthur R. MORRISON, Appellant.
    No. 73-1046.
    United States Court of Appeals, Fourth Circuit.
    Argued May 8, 1973.
    Decided Sept. 12, 1973.

      Joseph B. Hyman, Alexandria, Va. (Echols & Hyman on brief), for appellant.
    John A. Beck, Washington, D. C., for appellees Frost and Dreisen.
    Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

This is still another chapter in what has proved to be extended and protracted litigation arising out of a husband’s unfortunate manipulation of his property in an apparent attempt to thwart his wife and representing efforts either of him or his estate to reclaim his property from the consequences of his own manipulations. The property involved consisted of two valuable tracts of real estate. One was located in Virginia, the other in Florida. The early stages of the proceedings related to the Virginia property. The background of that phase of the litigation, as well as the general nature of the proceedings and of Morrison’s efforts in concealment have already been detailed in earlier opinions of this Court and need not be repeated again. At this time, we are only concerned with the Florida property.

In May, 1963, Morrison, the husband, acting in conjunction with the defendant James T. Benn, deeded his Florida property to Capital Investors Co. (hereinafter described as Capital) which was a corporate “shell”, owned and controlled completely by Benn, and which may be considered legally as identical with Benn. Capital promptly sold the property in June, 1963, to Do-Mor, Inc., a Florida corporation, which in payment executed four promissory notes of even date with the purchase, naming Capital as original payee. The notes were secured by a mortgage over the real estate sold. The controversy between the parties relates to only two of these notes, one in the principal amount of $100,000 payable in two equal installments on June 21, 1964, and June 21, 1965, and the second in the sum of $225,000, payable within sixty days, or August 21, 1963. After delivery, the notes were shifted about by Benn among three corporations, which represented his alter egos and were completely under his control and ownership. It is unnecessary to detail such manipulations since they have no determinative bearing on the issues in this phase of the litigation. In March, 1965, however, when both notes were in default and after maturity, Benn, through one of his “shell” corporations endorsed the two notes in question to the defendant Frost, who initially had the notes endorsed over to a nominee, Peters and Company, a real estate brokerage firm headed by Frost’s son-in-law, and later in favor of the defendant Dreisen, as nominee. Dreisen, however, later acquired from Frost a half-interest in his purchase. In December, 1964, prior to the negotiation of the notes to Frost, the District Court had directed that the proceedings should focus on the ownership of the Florida property, or, if sold, its proceeds, and directed that the parties should file specific statements of their claims in and to the property or its proceeds. In accordance with this judicial direction, Morrison submitted in February, 1965, motion for leave to file his counterclaim against Capital and Benn for the purpose of establishing his claim to the Florida property or, if sold, to the proceeds therefrom. This motion was granted in March, 1965, a few days after Benn had assigned the notes to Frost. Thereafter, Benn’s corporate “shell”, which had made the transfer of the notes to Frost’s nominee, filed bankruptcy proceedings, listing these notes as corporate assets “subject to a pledge.”

Little progress was made in disposing of the issues surrounding the ownership of the Florida property. The proceedings, it seems, were shifted about among judges after the District Judge who originally was in control was elevated to the Circuit Court. In December, 1970, however, Honorable Richard Kellam, District Judge, to whom the case was ultimately assigned, began to press vigorously the proceedings towards a conclusion. He accordingly, in December, 1970 fixed a hearing to dispose of all outstanding issues, including particularly that involving the Florida property. Notice of this hearing and of the right of any party to proffer any claims he might have to this property was given all parties. After a full hearing in March, 1971, pursuant to the notice, the Court issued its opinion, dated May 4, 1971 in which it found specifically that Capital had not “paid any consideration for the Florida properties” and that Capital “held the assets described, transferred and conveyed as a constructive or resulting trustee. All of the properties were owned by Mr. Morrison. No consideration was paid by Capital. Mr. Morrison is entitled to have all of the property returned to him, or the proceeds therefrom, subject to the right of any bona fide transferee.” In this opinion, it described the notes as “subject to a pledge”, thereby indicating uncertainty of the nature of any claim of Frost and Dreisen, who were not at the time parties to the action, in and to the notes. This finding was confirmed in the judgment of the Court dated June 21, 1971.

Thereafter, the present controversy-over the ownership of the two notes in question quickly developed between the estate of Morrison, relying on the judgment giving it beneficial equitable ownership of the Florida property “or the proceeds therefrom,” and Frost and Dre-isen claiming as endorsees and transferees for value without notice of the claims of Morrison. After a hearing on the respective claims, the District Court filed its decree “in equity” concluding, on the basis of its balancing of the equities of the parties, that the rights of Frost as a purchaser for value without notice were superior to those of the estate, even though the estate be deemed to have a constructive trust in and to the notes. Predicated on those findings, it sustained the claim of the defendants Frost and Dreisen to the notes. In so ruling, the Court gave no consideration in its opinion to the Uniform Commercial Code and its applicability to the issues between the parties. The estate has appealed. We reverse.

The notes in dispute are negotiable instruments and the transferability of such notes, as well as the rights flowing from such transfers, are to be determined by the legal principles unique to negotiable instruments. This is so, though the notes are secured by a real estate mortgage. In ascertaining what the rights attaching to a negotiation of a negotiable instrument are, the Courts are to apply the law, not of the place of payment, but of the place where the negotiation occurred. The transfer of the notes in question to Frost occurred in the City of Washington. At the time of that transfer, the applicable law was represented by the Uniform Commercial Code, earlier adopted in that jurisdiction. All of this the defendants Frost and Dreisen conceded on oral argument. Nor could they have taken any other position in view of the clarity of the law. The District Court, in its decision from which this appeal is taken, however, gave no consideration to the provisions of the Uniform Commercial Code and erroneously applied general equitable principles applicable to the transfers of non-negotiable instruments in resolving the rights of the parties.

Broadly speaking, the Uniform Commercial Code divides the purchasers of negotiable paper into two categories ; and, following the ancient maxim, nomen est numen it fixes the rights of a purchaser by his classification within those categories. The two categories are “holder in due course” and one not a “holder in due course.” And the Code provides a simple test for ascertaining within which category a purchaser of a negotiable paper falls. To be a “holder in due course,” one must have acquired the negotiable instrument before maturity and before default. It is conceded that Frost acquired the notes in this case after maturity and with knowledge of default. It follows necessarily, then, that he was not a “holder in due course.” The Uniform Commercial Code plainly provides that one not a “holder in due course,” such as was Frost, takes the notes “subject to (a) all valid claims to it on the part of any person; * * And the breadth of the phrase in the Code of “all valid claims. * * * on the part of any person” is stated in the Official Comment on the section to include “not only claims of legal title, but all liens, equities or other claims of right against the instrument or its proceeds. It includes claims to rescind a prior negotiation and to recover the instrument or its proceeds.” The Official Comment goes further and states that this provision “includes all claims for rescission of a negotiation, whether based in incapacity, fraud, duress, mistake, illegality, breach of trust or duty or any other reason. * * * It includes claims of legal title, lien, constructive trust or other equity against the instrument or its proceeds.” The Comment, also, makes clear that the provision applies to and limits the rights of “a bona fide purchaser” for value, provided he took “with notice that the instrument is overdue.” Since Frost took the notes with actual notice they were overdue and in default, he acquired only the right of his transferor, Benn, in and to the notes or their proceeds and his right to the notes was specifically subject to any constructive trust in and to the notes or their proceeds in favor of the estate and all references in the District Court’s opinion to the rights of a “bona fide purchaser” for value were irrelevant. In short, the controversy between the parties resolved itself into the clear-cut question whether the estate had established its right to claim the notes as the beneficiary of a constructive trust in the notes or their proceeds. If it had, Section 3-306 was applicable and controlling.

In its May 4, 1971 opinion, the District Court found that the estate did have a constructive trust in the notes or their proceeds. The estate asserts this finding in the May opinion is conclusive on the rights of the parties and on the existence of a constructive trust in its favor. But Frost and Dreisen were not parties to the proceeding at the time this opinion was rendered and they claim they are not bound by that decree. The estate counters with the argument that the May finding binds both parties and those in privity with them, and one is in privity if, though not a party, he acquired his interest in the subject-matter of the controversy after the commencement of the action thereon. In amplification of this point, it argues that Frost’s purchase of the notes was after the proceeding was begun, after the District Court in its ruling of December, 1964 had focused on the Florida transaction, and after the estate had filed its motion to raise by counterclaim its claim to the property or its proceeds. There is, it may be conceded, considerable authority in support of this contention of the estate. See Lamb v. Cramer (1932) 285 U.S. 217, 219, 52 S.Ct. 315, 76 L.Ed. 715; National Lead Co. v. Nulsen (8th Cir. 1942) 131 F.2d 51, 56, cert, denied, 318 U.S. 758, 63 S.Ct. 533, 87 L.Ed. 1131, 46 Am.Jur.2d Sec. 532 at 684; 1st Restatement of Judgments (1942) Section 89. But, under the special circumstances of this case, we do not regard the principle urged by the estate applicable. This is so, because the District Court in its May, 1971 opinion, though finding favorably to a constructive trust, limited that finding to the parties then before the Court and expressly reserved decision on the rights of any transferee of the notes. And the estate did not except to this limitation by the Court on the effect of its finding of constructive trust, even though the Court specifically provided an opportunity to any party to the proceedings to submit “objections and exceptions to the order at Alexandria, Virginia, at 9:00 o’clock a. m. on June 21st, 1971.” The District Court, in its opinion from which this appeal is taken, addressed itself to the claim advanced by the estate that the earlier finding in May, 1971 bound Frost and Dreisen even though not then parties, and emphasized that, while describing the notes as “subject to pledge” thereby indicating that even the Court was unsure of the nature of the claim of Frost and Dreisen, it had carefully refrained in its May, 1971 opinion from making “any ruling concerning the rights of Frost and Dreisen, or the validity of any assignment of the notes in question.” In the light of this record and the obvious purpose of the District Court, so definitely expressed, that in its May opinion, it did not intend to rule on the rights of Frost and Dre-isen, but specifically reserved judgment on their rights, it would seem entirely improper to apply to Frost and Dreisen any mechanical rule of privity so as to bar them from a right to be heard on the existence vel non of a constructive trust in favor of the estate in and to the notes. After all, the principle of privity is not to be automatically applied in all cases as a basis for res judicata-, its application for such purpose requires “careful examination into the circumstances of each ease as it arises.” Storm v. Nationwide Mutual Insurance Company (1957) 199 Va. 130, 97 S.E.2d 759, 762, 69 A.L.R.2d 849. On the basis of the “circumstances” of this case, the application of the principle, in our opinion, would not accord with fundamental fairness. The issue of a constructive trust in the notes in favor of the estate accordingly remains for resolution between the estate and the defendants Frost and Dreisen. The cause is remanded to the District Court to make appropriate findings on that issue on the record heretofore made before it, supplemented by any additional evidence either party may submit.

Though the case is being remanded for further proceedings, it is perhaps not amiss for u's to note some additional points suggested by the parties in their arguments which we do not find dispositive of the cause as it is presently advanced. Thus, Frost and Dreisen suggested that the estate was foreclosed from maintaining any claim by a decree entered in a suit to quiet title to the Florida property filed by DoMor, in the state courts of Florida, and by a general release executed by Morrison in favor of Capital. Morrison was, it is true, a party to the suit to quiet title. That action, however, had nothing to do with the rights of Morrison to the notes given by Do-Mor to Capital. The issue in that suit to quiet title was DoMor’s title, wich rested upon a deed executed by Capital in favor of Do-Mor. No one in the action questioned DoMor’s status of a purchaser in good faith for value without notice; and, under such circumstances, the general equitable principles stated in Vicars v. Wei-siger Clothing Co. (1917) 121 Va. 679, 93 S.E. 580, 581, as quoted in the opinion of the District Court, which apply to transfers other than those qualifying as negotiable instruments, sustained the claim of title of Do-Mor against any claim of Morrison. But Do-Mor’s title to the real estate is entirely different from Frost’s claim by virtue of,an assignment after default to the notes in question. So far as the release is concerned — the other matter raised by Frost and Dreisen — it is the position of the estate that there was either a want or failure of consideration. While the District Court did not clearly rule on this contention of the estate, the fact that it did not predicate its conclusion on the release would suggest that it considered the position of the estate well-taken. The issue is, however, tied in to the question of a constructive trust and may be reviewed on remand on the basis of the evidence adduced on that issue.

Frost and Dreisen, also, have raised the issue of estoppel as against the estate. “It is essential”, to quote the language of this Court in Souter v. State Mutual Life Assurance Company (4th Cir. 1960) 273 F.2d 921, 926, “that one invoking an estoppel shall have justifiably relied, to his detriment, on the conduct of the party sought to be es-topped — that is, that he changed his position for the worse.” The only possible act of Morrison on which Frost could rely for an estoppel would be that, by conveying title to Capital, he put it in Capital’s power to sell the property and take purchase-money notes in payment with its name as payee, thereby indicating that Capital or its successor corporate “shell” was both the nominal and the real owner of the notes. To predicate an estoppel on any such circumstances in favor of one not a holder in due course would be to thwart the basic purpose of the Commercial Code and to nullify its specific provisions. As we have already pointed out, when Frost took the notes with knowledge that they were past due and in default, he took “nothing but the actual right and title” of his assignor and he took “subject” to any claim “based on * * breach of trust or duty or any other reason” including a “constructive trust or other equity against the instrument or its proceeds” in favor of “any person” which, of course, would include Morrison. Frost was an experienced lawyer, practicing in the City of Washington. Whether lawyer or not, he is charged with knowledge of the law as it fixed his rights under his assignment. Since the law specifically denied him any right to assume, when he took his assignment that there were no “equities or other claims of rights against the instrument or its proceeds,” there was no representation by Morrison’s conduct on which Frost had any “justifiable” right to rely that Benn and his corporate “shells” held title to the notes free from any equities in favor of either Morrison or any other party.

Even if this controversy were not controlled by the clear provisions of the Uniform Commercial Code, we are not certain that the decree below could be sustained. Frost’s standing as a bona fide purchaser for value without notice is open to serious question. His relationship with Benn was not casual. It was conceded that Benn frequented Frost’s office, received mail there, and apparently gave Frost’s office as the address for at least one of his “shell” corporations. Indeed, the very notes involved in this litigation had Frost’s offices listed as the address of the payee Capital. Frost testified that this holding out of his offices by Benn was not with his approval and he said, when he heard of it, he ordered Benn to discontinue. But Benn was doing more than merely frequenting at odd times Frost’s office; he had business dealings with Frost. Frost acted as attorney on behalf of several corporations connected in some way with Benn, with his fee guaranteed by Benn individually. He explained, however, that, while Benn was to pay his fee, Benn was not his client; in fact, he went further and stated that conflicts of interest would have prevented him from representing Benn in the litigation. Yet, conflict of interest or not, his fee was paid by Benn in the form of a credit of $50,000 against the purchase price of the very notes in litigation. Normally, he who pays one’s fee is his client. Moreover, Frost concedes that Benn’s operations were “unethical,” though he testified that he did not discover this until a few weeks after he had purchased the notes. And, for some largely unaccountable reason, ■ Frost would not take an assignment of the notes in his own name because he did not wish his name associated with the notes. And he purchased the notes at a considerable discount, a fact which, of itself, would not impugn the good faith of the assignment, but is a fact that can properly be considered in connection with all the other facts in the case, including the unique form in which payment was made by Frost to Benn. It must be borne in mind that the notes, in default as they were, carried “suspicion” on their face. It is of interest that the assignment to Frost’s nominee came after the District Court had begun its consideration of the ownership of the Florida property and after Morrison had given notice, by his motion for leave to file a counterclaim, of his claim to the property or its proceeds. We are by no means as certain as apparently the District Court was that Frost could, even under the normal rules applicable to non-negotiable instruments, have qualified as a bona fide purchaser for value without notice. This is, of course, aside from the real issues in the case, which turn on the proper application of the Uniform Commercial Code for resolution.

Reversed and remanded with directions.

      . 360 F.2d 462 (4 Cir., 1966) ; 387 F.2d 591 (4 Cir., 1967) ; and 453 F.2d 1365 (4 Cir. 1972).

      . Morrison died in 1969 and his executors were properly substituted in his place.

      . Only the first installment on the $100,000 was past due but the Uniform Commercial Code declares that a “purchaser has notice that an instrument is overdue if he has reason to know (a) that any part of the principal amount is overdue * * Section 3-304(3). This seems to have been tbe rule under tbe NIL. Note, 170 A.L.R. 1029; United States v. Capen (D.C.Vt.1944) 55 F. Supp. 81.

      . This is made crystal clear in the Uniform Commercial Code. See Sections 3-105(2) (a) and 3-112(1) (b) of the Code. 11 Am.Juris.2d Section 201, at 230, summarizes the rule under the Code thus :
      “ * * * The Commercial Code declares the negotiability is not affected by a statement that collateral has been given to secure obligations, either on the instrument or otherwise, of an obligor on the instrument, and an order or promise is not made conditional by the fact that the instrument states that it is secured.”
      This rule was the majority rule even before the adoption of the Code. Marine Bank v. Kalt-Zimmers Co. (1934) 293 U.S. 357, 363, 55 S.Ct. 226, 79 L.Ed. 427; Gerrish v. Atlantic Ice & Coal Co. (5th Cir. 1935) 80 F.2d 648, 650; Fidelity Trust Co. v. May-hugh (5th Cir. 1920) 268 F. 712, 716-717; First National Bank v. Valentine (1970), 62 Misc.2d 719, 309 N.Y.S.2d 563.

      . United States v. Guaranty Trust Co. (1934) 293 U.S. 340, 345-346, 55 S.Ct. 221, 79 L.Ed. 415; Queensboro Nat. Bank of City of New York v. Kelly (2 Cir. 1931) 48 F.2d 574, 576; Restatement, Conflict of Laws 2d, Sec. 216. In Guaranty Trust, the Court said:
      “But under settled principles of conflict of laws, adopted by both federal and state courts, the validity of a transfer of a chattel brought into a country by the consent of the owner is governed by its law; and that rule applies to negotiable instruments.” (293 U.S. at 345-346, 55 S.Ct. at 223.)

      . Freely translated, this maxim is to the effect that “to name is to know or to decide.”

      . Sec. 3-302(1) (c), U.C.C.
      The reason for this differentiation between rights acquired by one under an assignment before maturity and one after maturity was long recognized before the adoption of either the Negotiable Instruments Act or the Uniform Commercial Code. “ ‘Where a negotiable note is found in circulation after it is due, it carries suspicion on the face of it. * * *' ” (Emphasis in text). Osborn v. McClelland (1885) 43 Ohio St. 284, 1 N.E. 644, 651, quoting from 1 Daniel, Neg.Inst., (1st Ed.) § 782. A like idea was expressed in Vermilye & Co. v. Adams Express Company (1874) 88 U.S. 138, 144-145, 21 Wall 138, 22 L.Ed. 609, where the Court said that the past-due character of a negotiable instrument “should be a warning to the purchaser of such an obligation after its maturity to look to the source from which it comes, and to be cautious in paying his money for it.”

        See, also, Morgan v. United States (1884) 113 U.S. 476, 500, 5 S.Ct. 588, 597, 28 L.Ed. 1044:
      “When transferred after it has become due, although not reduced to the rank of an ordinary chose in action, the legal title to which cannot pass by assignment or delivery, it carries on its face the presumption which discredits it, and deprives it of that immunity which, while the time for payment was still running, was secured to it in favor of a bona fide purchaser for value without actual notice of any defect, either in the obligation or the title.”

      . Section 3-306, U.C.C.

      . Section 3-306(a), U.C.C.; 11 Am.Jur. § 486,,at 550.
      The Code made little real change in the rights of one not a holder in due course under the old law merchant, which was to the effect that one not a holder in due course got by transfer only such title as his trans-feror had and, if some other person had legal or equitable title, such title would not be divested by the transfer. Morgan v. United States, supra, 113 U.S. at 491, 58 S.Ct. 588; Vermilye & Co. v. Adams Express Company, supra, 88 U.S. at 146-147, 21 Wall 138; Texas v. White (1868) 74 U.S. 700, 735, 7 Wall 700, 19 L.Ed. 227. In the latter case, the Court said:
      “ * * * We held in that case that the purchaser of coupon bonds, before due, without notice and in good faith, is unaffected by want of title in the seller, and • that the burden of proof in respect to notice and want of good faith, is on the claimant of the bonds as against the purchaser.
      H: # Hi si« Hi
      “But these rules have never been applied to matured obligations. Purchasers of notes or bonds past due take nothing but the actual right and title of the vendors.” In Morgan v. United States, supra, the Court said (at 491, 113 U.S. at 593, 5 S. Ct.) :
      “Purchasers of notes or bonds past due take nothing but the actual right and title of the vendors.”

        See, also, 11 Am.Jur.2d § 481 at 541-2:
      “A holder who takes an instrument after its maturity has, under the NIL or law merchant, the status and rights, in general, of the holder of a non-negotiable instrument or of the assignee of a chose in action. That is, unless he holds through a holder in due course, he normally has nothing but the right and title of his transferor, is put upon inquiry and is chargeable with notice, and holds the instrument subject to defenses based on infirmities in the instrument or defects in title of the person transferring it to him.”

      . It is not an unusual course for a court to follow in adjudicating issues that might prejudice parties who are not before the court to enter a provision saving the right of such parties. See, Ladd v. Stevenson (1889) 112 N.Y. 325, 19 N.E. 842, 844.

      . To the same effect, see, United States v. Fidelity and Casualty Co. of New York (4th Cir. 1968) 402 F.2d 893, 898; United States v. Glassman Construction Company (4th Cir. 1968) 397 F.2d 8, 11; Davenport v. Ralph N. Peters & Co. (4th Cir. 1967) 386 F.2d 199, 207; General Cigar Co. v. Lancaster Leaf Tobacco Co. (D.C.Md.1971) 323 F. Supp. 931, 939.

      . This follows from the finding of the District Court:
      “But even if it has established that fact, (i. e., that Capital gave no consideration for the transfer to it) it was his (i. e., Morrison’s) improper conduct which permitted Frost and Dreisen to purchase the mortgage in question free of notice of any claim of Morrison.”

        The “improper conduct” to which the District Court adverted was that Morrison “took no action to put prospective purchasers on notice of any latent claim until he filed the suit in Florida in September, 1966, long after the assignment of the mortgage by Capital, Southgate and others.”
      It is to be noted that the District Court consistently refers to “the assignment of the mortgage” rather than to the transfer of the negotiable instruments, overlooking the well-settled rule that the mortgage follows the obligation it secures and derives its negotiability from that of the obligation secured. 55 Am.Juris.2d, Section 1308, at 1052. That the mortgage follows the note it secures and derives negotiability, if any, from the note is the rule in Florida where the land under mortgage in this case was located, see Daniels v. Katz (Fla.App.1970) 237 So.2d 58, 60; Meyerson v. Boyce (Fla. App.1957) 07 So.2d 488. 489.

      . There is reference, both in the opinion and in the argument, to the efforts of Morrison to conceal his property from his wife. Whether lie transferred his property to Benn under what the law will regard as a trust because of some scheme to deceive his wife may aid the wife in her assertion of interest in the property so transferred but it cannot avail Frost and Dreisen. Benn’s ownership of the property would be equally under a constructive trust, whatever may have been Morrison’s reason for creating such a trust, and any transfer of the notes by Benn, if made after maturity and default, would be equally subject to the constructive trust.

      . See, City of New Port Richey v. Fidelity & Deposit Co. (5th Cir. 1939) 105 F.2d 348, 353,123 A.L.R. 1352.
      Frost claims he gave Benn five cashier’s cheeks payable to Southgate Associates (one of Benn’s corporate alter egos) for $18,000 each, his personal check for $5,000, payable to Southgate Associates, and $5,000 in cash. The balance of the purchase price of the notes in question, secured as they were by property worth, by Frost’s own appraisal, $200,000, was in the form of a $50,000 credit on an attorney’s fee due Frost by Benn. All in all, it must not be forgotten, though, that for a long time after this transaction, Benn and/or his corporate alter ego was representing the notes as “under pledge” and, as late as 1971 the District Court was still uncertain whether the notes were “under pledge,” as its opinion of May, 1971 demonstrates.


author: HILL, Circuit Judge.

text:
    Henry Clayton JONES and Royal Globe Insurance Company, Plaintiffs-Appellants, v. Joy E. NELSON and Robert M. Nelson, Defendants-Appellees.
    No. 72-1891.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 25,1973.
    Decided Aug. 31, 1973.

      Ben A.’ Goff, Oklahoma City, Okla., for plaintiffs-appellants.
    Charles C. Baker, Tulsa, Okla., for def endants-appellees.
    Before BREITENSTEIN, HILL and DOYLE, Circuit Judges.
   HILL, Circuit Judge.

In this diversity action Henry Jones appeals the trial court’s order granting summary judgment for appellees Joy and Robert Nelson. The facts indicate that Mrs. Nelson was involved in an automobile accident while traveling to New Mexico to visit her husband, who was stationed on active duty at Hollo-man Air Force Base. Apparently Mrs. Nelson was driving in a westerly direction when she came up behind a semi-truck driven by Jones. After passing this truck but while still in the process of returning to the righthand lane of travel, her vehicle swerved into the left front end of the truck. As a result, both vehicles were damaged and Jones suffered serious personal injuries.

Appellants contend the appellees’ negligence consisted of the following: failure to keep a proper lookout; operating the vehicle at a high and excessive rate of speed; failure to exercise ordinary care; and failure to safely overtake and pass the vehicle driven by Jones. The appellees in their answer denied these allegations and raised the affirmative defenses of unavoidable accident, sudden emergency, and contributory negligence. Depositions of Jones and Nelson were then taken. Jones’ testimony was that although Nelson was not speeding when she passed him, it appeared that she either experienced a blowout on one of her tires and overreacted by cramping the wheels to the right, or she had misjudged the proximity of the two vehicles while changing back into the righthand lane immediately prior to the blowout. Jones admitted that he did not know positively how Nelson reacted to the situation. Nelson’s deposition stated that she was a reasonable distance in front of the truck when she began switching into the righthand lane. She testified a blowout on the left rear tire caused her car to spin into the right lane, and although she tried to keep the car headed straight she was unable to do so.

After pre-trial conference and reading through both depositions, the trial court determined there was no genuine issue as to any material fact, and on September 27, 1972, granted summary judgment for appellees. Appellants on October 6 filed a motion for a new trial, and in support of their motion offered the affidavit of an expert in accident reconstruction. The expert stated that in his opinion a blowout upon the left rear wheel would cause the automobile to rotate around this wheel in a counterclockwise direction. Thus if the car rotated clockwise as testified by Nelson and Jones, it would be the result of driver manipulation rather than any natural forces stemming from the tire blowout. Despite this affidavit, the motion was overruled on October 18, 1972. On November 17 appellants filed their notice of appeal from the trial court’s denial of the motion for new trial.

At the outset there are several jurisdictional problems which must be resolved before entertaining this case on its merits. We first note that appellants filed a motion for new trial with the district court after summary judgment was granted. Technically this motion was improper as no trial was conducted from which a new trial motion could be filed. Summary judgment is not a substitute for trial. Ando v. Great Western Sugar Co., 475 F.2d 531 (10th Cir. 1973); Machinery Center, Inc. v. Anchor Nat’l Life Ins. Co., 434 F.2d 1 (10th Cir. 1970). Nor can it be equated with a trial, for the very purpose of summary judgment is to eliminate those trials in which no issues of material fact exist. 6 Moore’s Federal Practice, 56.04 [1] at 2057 (2d ed. 1948). If exercised properly it is a final disposition of the issues at hand, and' the appellant’s proper recourse is to appeal the order. 28 U.S.C. § 1291; see Waldron v. Cities Service Co., 361 F.2d 671 (2d Cir. 1966), aff’d sub nom First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Lamb v. Shasta Oil Co., 149 F.2d 729 (5th Cir. 1945). In the case at bar the summary judgment order was a complete disposition of the cause and therefore properly appealable.

Rather than appealing the summary judgment order, however, appellants appeal the denial of their motion for new trial. It is arguable that as denial of their motion for new trial is unappealable, the time for filing their notice dates from the summary judgment order. It follows that as fifty days lapsed between the summary judgment order and the notice of appeal, appellants waited too long to appeal. Our research convinces us, however, that under Rule 59(b), F.R.Civ.P., a motion for new trial is equivalent to a motion for rehearing, and thus we can view appellants’ new trial motion as one for rehearing. See Claybrook Drilling Co. v. Divanco, Inc., 336 F.2d 697 (10th Cir. 1964); Slater v. Peyser, 91 U.S.App.D. C. 314, 200 F.2d 360 (1952); Safeway Stores v. Coe, 78 U.S.App.D.C. 19, 136 F.2d 771 (1943). Although a motion for rehearing normally is not appealable, the time for taking an appeal is suspended by the timely filed motion. Rule 4(a), F.R.App.P.; Director of Revenue, State of Colorado v. United States, 392 F.2d 307 (10th Cir. 1968). In the instant case the trial court entered summary judgment on September 27, 1972. Nine days later, and within the time required by Rule 59(b), F.R.Civ.P., appellants filed their motion for new trial. The time for filing their notice of appeal was then properly suspended until the lower court overruled their new trial motion on October 18, 1972. Thirty days later, but within the statutory time limit of Rule 4(a), F.R.App.P., appellants filed their notice of appeal as provided in Rule 3(a), F.R.App.P. We therefore hold that appellants timely filed their notice, thereby staving off any jurisdictional problems relating to timeliness.

Appellees charge, however, that appellants’ notice of appeal improperly designates the judgment appealed from and thus violates Rule 3(c), F.R.App.P. The notice of appeal states that the appeal is being taken “from the order denying the motion for new trial” rather than the order sustaining appellees’ motion for summary judgment. Appellees thus argue that as appellants have appealed an unappealable order the notice is deficient and our court lacks jurisdiction to hear this case. Our court was confronted with a similar problem in Cheney v. Moler, 285 F.2d 116 (10th Cir. 1960). In that case appellant’s notice of appeal, as in the case at bar, appealed the trial court’s order overruling his motion for a new trial. In following State Farm Mutual Auto. Ins. Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956), we held “the notice of appeal must be probed to determine whether or not the appeal is actually taken from a final judgment and an appeal will not be lost for what may be deemed ‘hyper-technical’ reasons.” Cheney v. Moler, supra, 285 F.2d at 118. By looking behind the form of notice it is clear the appeal probes the validity of the summary judgment and we therefore find the technical error to be harmless. Nichols v. Eli Lilly & Co., (10th Cir. 1973); Herron & Herron, Trustees v. Rozelle, 480 F.2d'282 (10th Cir. 1973); Cheney v. Moler, supra; 9 Moore’s Federal Practice, ¶ 203.18, at 752-755 (2d ed. 1948).

Looking to the merits of this appeal we find but one issue: whether based on the pleadings and depositions of the parties on file there is any genuine issue of material fact pertaining to the alleged negligence of Joy Nelson. In determining this issue we are reminded that any relief contemplated by Rule 56, F.R.Civ.P., is drastic and should be applied with caution to the end that litigants will have a trial on bona fide factual disputes. No margin exists for the disposition of factual issues. If there is any issue as to a material fact dispositive of right or duty, the case is not ripe for summary judgment. Ando v. Great Western Sugar Co., supra; Bushman Constr. Co. v. Conner, 307 F.2d 888 (10th Cir. 1962).

Admittedly Jones’ deposition appears to be contradictory in some respects and at times supports Nelson’s position; but in several areas there remain factual issues. In particular there is the testimony of Jones that Nelson’s car started changing lanes before safely passing Jones’ truck. Mrs. Nelson’s testimony is that she was a reasonable distance in front of the truck before changing lanes. Another factual dispute arises in relation to Nelson’s handling of the car after the blowout. Her testimony is that she did everything possible to keep the car out of Jones’ path but it was impossible to do under the circumstances. Jones, a professional truck driver who had experienced blowouts on his own trucks, testified that it appeared to him Nelson overreacted to the situation by cramping her wheels to the right, thereby causing the ear to spin into his truck. Lending support to Jones’ opinion is the affidavit of an accident reconstruction expert which indicated the car’s clockwise spin resulted from driver manipulation. These are disputed issues going to the negligence of Nelson in operating her ear.

After carefully viewing the entire record before us, in light of the allegations of negligence urged by plaintiffs-appellants, we must conclude there are issues of material disputed facts remaining in the case unresolved. Disposition of the case upon the merits by the granting of summary judgment was improper.

The granting of such judgment is set aside and the case is remanded for further proceedings.


author: SWYGERT, Chief Judge.

text:
    Martin SLATE et al., Plaintiffs-Appellants, v. William F. McFETRIDGE et al., Defendants-Appellees.
    No. 71-1832.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 12, 1973.
    Decided Aug. 30, 1973.
    Rehearing Denied Sept. 28, 1973.

      Gary H. Palm, Chicago, 111., for plaintiffs-appellants.
    Thomas M. Thomas, Francis B. Libbe, Chicago, 111., for defendants-appellees.
    Before SWYGERT, Chief Judge, and PELL and SPRECHER, Circuit Judges.
   SWYGERT, Chief Judge.

Martin Slate and his fellow plaintiffs brought this action pursuant to 42 U.S. C. § 1983, seeking damages under the First Amendment for the refusal of defendants William F. McFetridge, Daniel J. Shannon and Thomas Barry, among others, to grant them a permit to use Chicago Park District facilities for a political rally during the week of the 1968 Democratic National Convention. Liability was also predicated on the alleged failure of the defendants to fortify the permit application procedure with safeguards required by due process. At the close of the evidence, and after the trial judge had denied a motion by plaintiffs for a directed verdict on both bases of liability, the case went to the jury solely on the First Amendment question. The trial judge refused to instruct the jury on the due process claim of plaintiffs. The jury found for the defendants, and judgment was entered accordingly. This appeal followed. We reverse, holding that it was error to deny plaintiffs’ motion for a directed verdict, and remand for a determination of damages.

I

The facts critical to this appeal are not in dispute. They comprise a small part of the history which preceded the Democratic National Convention held in Chicago during the week of August 25, 1968.

Plaintiffs were members and organizers of the Coalition for an Open Convention, an organization which aimed to bolster support for the nomination of Senator Eugene McCarthy among delegates to the Convention. As the climax of this undertaking, the Coalition planned to hold a large public rally in a Chicago park shortly before the Convention at which all candidates for nomination would be invited to present their views. Slate was chosen to arrange this event and secure its authorization by appropriate officials of the City of Chicago.

At that time, these officials included the defendants McFetridge and Shannon, members of the Board of Commissioners of the Chicago Park District, and defendant Barry, the acting General Superintendent of the Park District. Certain of their respective duties were enumerated in Section 4-17 of the Park District Code, which provided that the General Superintendent:

shall, with the approval of the board of commissioners, promulgate and enforce compliance with rules and regulations governing the use of assembly halls, meeting halls, forums, reserved picnic areas, yacht harbors, automobile parking places at which no fees are charged, Soldier Field and Gately Stadium and other facilities of the park district, including among others, facilities for athletic or gymnastic exercises, swimming, boating and other sports, aeronautics, picnics, pageants and other activities. He may require that certain of such facilities may be used only upon the issuance of a permit by him, or by such subordinates as he may authorize to issue such permit. He may establish schedules of fees or charges for the use of such facilities in accordance with such rules and regulations, provided, however, that such fees and charges shall be reasonable, and provided further, that permits for the use of Soldier Field and Gately Stadium, and for the operation by any person or club of a facility located upon park lands or waters shall be issued only upon authorization by the board of commissioners in accordance with the provisions of Section 17-8.1 and other terms and restrictions fixed by the board of commissioners.

Section 17-8 of the Park District Code further provided:

No person shall hold, conduct or participate in any public meeting, assembly, picnic in a reserved picnic area, parade or procession in the park system unless a permit therefor has first been authorized by order of the board of commissioners and then only under such regulations and restrictions prescribed in said order as shall fully safeguard and subserve the public comfort, convenience, welfare, peace and safety and as shall be necessary for the protection and preservation of park district property from injury or damage; provided, however, that no permit shall be necessary for the holding of any public meeting or assembly at the following areas which are designated as public forums for the free interchange of views publicly by any person or persons or at other areas which the board of commissioners may from time to time, by ordinance, designate as such.

No other regulatory matter dealing with permits or procedures was on the books. In practice, the Board of Commissioners was not presented with a permit application under Section 17-8 unless the staff of the Park District, including the General Superintendent, had first decided that the request was meritorious and could be fulfilled.

The first member of the Park District staff encountered by Slate was John Trinka, who, as Director of Special Services, was responsible for permits and programs involving the Soldier Field facility. At a meeting on July 12, 1968, Trinka suggested that Slate contact Barry, since “there was tentative reservation for Soldier Field but he really wasn’t very sure about it.” Slate wrote Barry on July 13, repeating or enlarging his request for a sizeable park facility. This plea went unanswered though Barry received and read it. The reason, Barry maintained at trial, was that he took the July 13 letter to state a limited request for the use of Soldier Field, one which he could not then grant or discuss because of a prior reservation of that facility by the Democratic National Committee. After numerous unsuccessful attempts to reach Barry by phone, Slate mailed him another letter on July 25. Barry finally contacted Slate on or about July 29 — the letter of July 25 having jarred his supposed conclusion as to what the first letter sought — and the two arranged a meeting for July 31.

What took place at that meeting is a subject of dispute. The first letter from Slate had requested “one of Chicago’s largest parks, such as Grant or Washington, or Soldier’s Field.” Nevertheless, Barry insisted at trial that Slate came to their meeting in search solely for permission to use Soldier Field, which Barry denied on the spot in light of the prior reservation of that facility. According to Barry, he went on to assure Slate that the Coalition’s application would get immediate consideration were this reservation cancelled. Slate’s version of the event is that he requested permission to use any of the large park facilities controlled by the Park District, including Washington Park and Grant Park in addition to Soldier Field. His testimony agrees with that of Barry on other details of the meeting.

In any event, no response came from Barry following the meeting until August 13, when, after repeated prodding by various of the plaintiffs, he informed Slate that the pending application had not been acted upon by the Board of Commissioners. The reason, it turned out, was that Barry had decided not to place the matter on the agenda of the Board meeting set for August 13, nor otherwise to bring the application to the formal attention of the Commissioners.

Plaintiffs filed suit for injunctive and declaratory relief the next day. Their motion for a preliminary injunction was denied on August 19, and they cancelled their proposed rally. The complaint was subsequently amended to state a cause of action for damages. After the close of the evidence and after the trial judge had denied plaintiffs’ motion for a directed verdict, plaintiffs tendered the following instruction:

The Court instructs the Jury that the Plaintiffs were entitled to “due process” of law in the consideration of their permit application. Due process requires that public officials in ruling upon an application or request for a permit to hold a public rally must:
1. Give a prospective applicant notice of the procedures to be followed in applying for such a permit.
2. After an application or request is made, promptly decide whether it will be granted and notify the applicant of that decision.
3. In the event the application or request is not granted, promptly provide applicant with a written statement of the reasons for such decision.
4. Afford an applicant whose permit or request has not been granted an opportunity to a prompt hearing at which he may support and explain his request, and refute the basis on which his request was denied.
5. Upon the completion of such a hearing, promptly decide whether the request will be granted and provide applicant with a written statement of the reasons for such decision.

The trial judge refused the request and a verdict eventually was returned in favor of the defendants on the single issue of whether they reasonably refused plaintiffs a permit under the First Amendment.

II

Plaintiffs contest the denial of their motion for a directed verdict based on the failure of defendants duly to process the permit application, as well as the refusal of the trial judge to instruct the jury on the requirements of due process. We reach only the first of these contentions.

Defendants would have us uphold the trial judge in his refusal to direct a verdict on a theory of harmless albeit constitutional, error. Slate, they say, requested a permit for Soldier Field alone, and not the strictest imaginable set of procedures would have changed the fact that this facility — committed to another by prior reservation — was not available for use by his organization. This position is in error. As is amply evident from the text of his written submittals to Barry, Slate did not view his permit request to be one directed solely to securing the use of Soldier Field. Nor does the verdict for defendants, as they imply, carry with it inevitably the inference that Barry was reasonable in considering Slate to have put in a permit request so limited. As instructed by the trial judge, the jury might well have found that the defendants were unreasonable in their view that Slate’s request was this narrow, yet were reasonable nevertheless in denying a permit. There is certainly ample evidence in the record to support at least the first branch of such a finding. Worse, defendants mistake or would obscure the basic thrust of plaintiffs’ request for due process. Assume for the sake of argument that the communications which passed from Slate to Barry were sufficiently ambiguous to permit a reasonable conclusion that the use of Soldier Field alone was at issue; had there existed a requirement that Barry promptly state • this conclusion in writing — say, for example, by responding in the negative to the application of July 13 shortly after its receipt — Slate would have had an ample opportunity to rectify the confusion and set the record straight as to the scope of the application. And if the provision of due process would have caused plaintiffs to realize more quickly than they did that no permit would or could be forthcoming, some of the expense of their preparations could have been avoided.

Defendants were on more firm ground in the trial court, where they argued that the provision of due process was not required by constitutional or statutory law extant in July and August of 1968. The trial judge evidently thought so; as best we can tell, this was the reason he denied plaintiffs a directed verdict on the issue of due process.

It is a principle of elemental justice that a man not be held liable in damages for actions or omissions which he could not or should not be expected to have known would cause his liability. When he is a public servant, and when his acts are committed while he is arguably engaged in the pursuit of his official duties, strict liability becomes a proposition more weighty still, for good men may be deterred from the quest for public service by the imposition of such a burden. With these policies in mind, federal courts have reached a general consensus that liability for damages under 42 U.S.C. § 1983 must be determined by the legal standards in existence at the time of an alleged violation of constitutional rights. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973); Gaito v. Strauss, 249 F.Supp. 923, 934-935 (W.D.Pa.), aff’d on other grounds, 368 F.2d 787 (3d Cir. 1966); Bowens v. Knazze, 237 F.Supp. 826 (N.D.Ill.1965); cf. Striker v. Pancher, 317 F.2d 780 (6th Cir. 1963). “[A] police officer,” Pierson observed, “is not charged with predicting the future course of constitutional law.” Nor is a commissioner of the Park District or his subordinates. The problem here does not lie with this basic proposition. It inheres instead, in the necessary determination of the constitutional standards which ruled the days of July and August 1968. In approaching this problem, we must be mindful of certain considerations.

As the underpinnings of the rule set out in Pierson suggest, courts should be wary of too broadly construing cases which set down the law of times past, particularly where new cases have widened the scope of doctrine earlier announced. Retroactive application of fresh precedent has no place in fixing the standard of conduct for damage suits under Section 1983. Thus, the narrow reading by a public official of a case on constitutional law must be upheld unless patently unreasonable and without arguable support in logic or policy. Nevertheless, we cannot fail to recognize that any case has boundaries of fair application which go beyond situations presenting the facts squarely before the deciding court on the occasion of decision. Every decision is possessed of a penumbra of analogues.

In 1965, the United States Supreme Court issued its decision in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), a case arising out of movie censorship in Maryland. Speaking to the procedural aspects of the State’s decision to censor, the Court invalidated a provision which required submission of films to a board of censors unrestricted by limits of time on the censors’ deliberation. A new and rigorous code was substituted:

First, the burden of proving that the film is unprotected expression must rest on the censor. . . . Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression. ... To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor’s view that the film is unprotected, may have a discouraging effect on the exhibitor. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license. 380 U. S. at 58, 59, 85 S.Ct. at 739 (emphasis supplied).

Certain features of this mandate were further explored by the Court in the early months of 1968. An interval of fifty to fifty-seven days before final administrative action was disapproved as not satisfying the requirement in Freedman of a “specified brief period,” Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968), while an interval defined by the earliest practicable time following twelve days was implicitly accepted by the Court. Interstate Circuit v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). The City of Chicago itself set an absolute twelve day limit for an administrative decision to censor following the decision in Teitel.

Contrary to the assertion of plaintiffs, these are the cases which must govern the resolution of this appeal. The holdings in cases like Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968), Collin v. Chicago Park District, 460 F.2d 746 (7th Cir. 1972), and LeFIore v. Robinson, 434 F. 2d 933 (5th Cir. 1970), vacated on other grounds, 446 F.2d 715 (5th Cir. 1971), came too late to inform the defendants of the duty they impose. We cannot hold them to that duty and be true to the principle of Pierson. This view also disposes of a number of due process requirements sought by plaintiffs. Freedman and its progeny of 1968 make no mention of notice regarding procedures, or of a hearing, or of written statements of reasons; the list of procedures submitted by plaintiffs is silent as to censor-initiated judicial review, a censor-borne burden of proof, or a prompt judicial resolution of a censor’s claim. The only common ground existing between Freedman and plaintiffs’ compendium is the requirement of a prompt administrative decision made known to the applicant. Whether defendants failed to fulfill that duty and erred constitutionally by so doing are the narrow issues remaining before us.

Few would argue' with the basic proposition that the protection of speech and assembly in the context of political parades and demonstrations is an object no less sacred to the First Amendment than the protection of the cinema from the censor. See Blasi, Prior Restraints On Demonstrations, 68 Mich.L.Rev. 1481 (1970). Others, including Mr. Justice Harlan, have gone one step beyond to assert the primacy of First Amendment rights in the former setting. Shuttles-worth v. City of Birmingham, 394 U.S. 147, 162-163, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (Harlan, J., concurring); LeFlore v. Robinson, 434 F.2d 933 (5th Cir. 1970), vacated on other grounds, 446 F.2d 715 (5th Cir. 1971); Monaghan, First Amendment “Due Process,” 83 Harv.L.Rev. 518, 519 (1970). We note, moreover, that in recent decisions both this and the Fifth Circuit proceeded directly from Freedman to decide that due process was to be afforded applicants for park permits. Collin v. Chicago Park District, supra; LeFlore v. Robinson, supra; See also, Stacy v. Williams, 306 F.Supp. 963, 973 (N.D.Miss.1969); Snyder v. Board of Trustees of Univ. of 111., 286 F.Supp. 927, 936 (N.D.Ill.1968).

Defendants insist, nonetheless, that the Freedman, Teitel and Interstate Circuit cases compromise “unique law derivative from obscenity censorship,” and did not include within their ambit a requirement of due process to plaintiffs when they applied for a park permit in July 1968. Two distinctions are proffered :

Unlike those wishing to sell books and show films who must act with the shadow of doubt as to whether such material is obscene, those seeking to use Soldier’s Field know well beforehand if the facility is available.
* * -* * # * Board meetings are open to the public at which time permit applicants may appear .... [T]he plaintiffs never made an attempt to appear at a Board meeting, yet claim they were denied the opportunity to present written and oral argument in support of their application.

Decidedly unconvincing at best, we reject these as reasonable distinctions of Freedman. The first is based on defendants’ central misconception of the case; the record does not support a conclusion that plaintiffs tendered a permit request which they knew was limited to Soldier Field, whatever Barry may have thought. The second embodies no distinction of Freedman, for that ease did not require an administrative hearing. It also suffers from an ignorance of the actual procedures which the Park District employed in July 1968; without the approval of the General Superintendent, the permit applicant did not get his case before the Board of Commissioners. In this light, the right of appearance which is proposed would be a hollow one indeed. The makeweight character of defendants’ distinctions, coupled with our recognition of the analogous importance in First Amendment terms of movie censorship and the regulation of political demonstrations, compels our conclusion that defendants had notice by Freedman that their prompt resolution of Slate’s permit request was a dictate of due process in the protection of First Amendment rights.

Whether plaintiffs were afforded prompt consideration is the final question for our resolution. We know that Barry received and read a letter from Slate on July 13, requesting a permit for a facility at which to hold a rally:

From our preliminary estimates, we are confident that 100,000 people will be coming to Chicago during this week in August to voice their support for an open convention. We feel quite strongly that the city of Chicago in its interest in maintaining freedom of speech and assembly — and at the same time, law and order — could serve these ends by providing public park facilities for the series of rallies.
Given the size of the crowds expected, we feel that one of Chicago’s largest parks, such as Grant or Washington, or Soldier’s Field, could best accomo-date [sic] our rallies.

Over two weeks later — sixteen days to be exact — Barry called Slate to arrange a meeting. We can only guess at what caused this delay. Whatever the reasons were, however, they cannot justify the tardy response on any view of the facts. Barry testified that the estimate of “100,000 people” caused him immediately to view the communication as a request for Soldier Field, the only facility, in his opinion, capable of filling this need. Assuming this to be true and justifiable, it was a foregone conclusion on July 13 or shortly thereafter that plaintiffs would not be getting a permit. Barry’s failure immediately to notify plaintiffs of this fact as the hours remaining before Convention time ticked away was a bald abuse of authority and an outright violation of the mandate in Freedman of prompt administrative action. If, moreover, Barry did not in fact view the July 13 letter to be a single-facility request — -an inference easily drawn in light of plaintiffs’ expressed willingness in the July 13 letter to compromise on a rally site — Barry’s delay is equally if not more reprehensible. A licensing authority is granted a reasonable period to rule on a permit application largely because time is needed for negotiations and the making of arrangements for and with the applicant. Surely this purpose is not served by allowing the official well over two weeks to sit on his hands. We hold that defendants are liable as a matter of law in damages for the delay in Barry’s answer to plaintiffs, comprising, specifically, the period beginning with Barry’s receipt of Slate’s first letter and ending with Barry’s call to Slate on July 29.

The trial judge erred in not granting a directed verdict for the plaintiffs. Accordingly, the judgment appealed from is reversed. The amount of damages and their allocation are questions remaining for resolution. The ease is remanded for such a determination.

      . This instruction mirrors the elements of due process which plaintiffs listed in their motion for a directed verdict.

      . Their position, in summary, is this :
      It is plaintiffs’ claim that they were denied First Amendment rights because defendants failed to make available to them a park facility on August 25, 26 or 27, 1968, for a political rally. They required a site that would accommodate 100,000 people. The only such facility was Soldier Field. It had been reserved for the President of the United States long before plaintiffs’ request. . . . [A] different procedure for permit applications could not, and would not, have changed the fact of the prior reservation; nor would an application form, nor a deadline for decision, nor a written decision stating a reason, have given plaintiffs any more constitutional protection than they had.

      . See note 13, infra.

        . The instruction read as follows:
      The first is the issue as to whether or not the refusal, or the conclusion I should say, on the part of at least Mr. Barry, and to the extent that the other defendants were aware of it, the other defendants, the conclusion that the application which the plaintiffs were making was limited to Soldier Field. That is a big question in the case without any doubt, whether that was a reasonable conclusion from all of the evidence in the case. So, one issue is, were the defendants, and particularly Mr. Barry, reasonable in concluding that the application for a permit made by the plaintiffs was limited to Soldier Field.
      Now, if you conclude that they were reasonable in treating it as an application limited to Soldier Field, then you come to the next question, which is, were they reasonable in refusing to, or failing to issue a permit for Soldier Field under all the circumstances.
      If you conclude that they were unreasonable in treating the application as one only for Soldier Field, you conclude in other words that a reasonable interpretation of the evidence is that they were applying for other sites as well as Soldier Field, then you have to come to the question as to whether their conduct in failing or refusing to issue a permit for the other site was reasonable.

      . By these observations we do not mean to suggest what damages the plaintiffs may be able to prove nor to limit the scope of that proof.

      . See their reply memorandum to plaintiffs’ motion for rulings on matters of law, pp. 6-10. (Appeal Record, Doc. 194).

      . One of plaintiffs’ arguments below was that Section 17-8 of the Park District Code was unconstitutional under Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). The trial Judge refused to direct a verdict for plaintiffs on this reasoning:
      Now, your [plaintiffs] second contention is that they [defendants] are like the policemen who arrest somebody for passing out handbills under an ordinance which any reasonable policeman would know is invalid because handbill ordinances have been uniformly declared invalid for years and years by almost every court higher than a Justice of the Peace.
      That is your position now. 17-8 is so clearly unconstitutional that they should not have been permitted to rely upon it and they should not now be permitted to rely upon it as a basis for conduct. They should have known it was so clearly unconstitutional.
      Then I think [defendants’] point is well taken. How can I say, prior to Shuttles-worth, they should have known. This is like Bowens against [Knazze, 237 F.Supp. 826 (N.D.Ill.1965)], very clearly. I said in Bowens . . ., until the Supreme Court ruled, the law of Illinois wasn’t clear with respect to a second search. They said, okay, a second search is an unconstitutional search.
      Then Mr. Bowens, who had been searched the second time by Mr. [Knazze] said, you violated my civil rights, and the Supreme Court of Illinois has so held. I said, not so fast Mr. Bow-ens, because we aren’t going to make policemen be required to be smarter than the lower court judges, some four or five of whom had all held it was a valid search. The trial judge held it was a valid search, three judges of the Appeals Court said it was a valid search, and the Supreme Court said, you are wrong, it is an invalid search.
      We are not going to hold those people responsible. I think Mr. Cusack’s point with respect to Shuttlesworth is well taken. I am not going to require that the commissioners of the Park District be smarter than earlier justices of the Supreme Court because I think Shuttles-worth was a broader interpretation than the earlier cases with respect to what constitutes reasonable due process standards.
      I happen to agree with Shuttlesworth, but that doesn’t make it a basis for a cause of action against the commissioners of the Park District that they didn’t anticipate Shuttlesworth, which is 1969, at the time that they were acting in 1968, and that they should have known that prior cases which said that this was not too vague a standard, were wrong and Shuttlesworth was going to come along and say you have got to do better than that, which it did, and I think they are right.

      . See Universal Film Exchanges, Inc. v. City of Chicago, 288 F.Supp. 286 (N.D.Ill.1968) (filed April 19, 1968).

      . One scholar, at least, has suggested that an administrative hearing should not be required by the Constitution. Blasi, Prior Restraints On Demonstrations, 68 Mich.L. Rev. 1481,1552-55 (1970).

      . By “censor” we mean, of course, the licensing authority — here, the Board of Commissioners of the Chicago Park District.

      . Other than the justifications of Barry, we have a hint, if not more, in a letter written by Barry to McFetridge on July 17, 1968:
      Dear President McFetridge:
      “ON TO CHICAGO”
      Attached is a letter addressed to me requesting a meeting for a possible rally location in the Chicago Park District conducted by a group backing Senator McCarthy.
      Is it your wish that I meet with these people to consider this request?

      . Barry, after all, had only to consult his assistant Trinka or the publicized list of prior reservations — the existence of which defendants stress so highly — to determine that Soldier Field was reserved for the days Slate requested.

      . Defendants point to the fact that Slate had notice of the prior reservation of Soldier Field from a schedule of events for that facility authored by the Park District, as well as to the fact that Trinka made mention of the reservation when he met with Slate. Neither fact bears on the conduct of Barry, however. The July 13 letter of Slate requests “one of Chicago’s largest parks, such as Grant or Washington, or Soldier’s Field.” While Barry may rightly have narrowed this plea in his own mind, he obviously could not have expected Slate to realize that a request for a facility to han-die “100,000 people” necessarily limited to one the facilities available for his use. The letter speaks for itself. Furthermore, if we accept Barry’s assertions that Soldier Field was the sole topic of discussion at his meeting with Slate on July 31 and that he promised Slate “consideration” in the event that Soldier Field became free, it is apparent that Slate was deprived of more than a timely notice of Barry’s interpretation of the July 13 letter. He lacked, too, a timely assurance of being at least on a waiting list for the use of Soldier Field. The trial judge recognized, correctly, we think, that notice of both are required by the due process clause where a facility is unavailable to an applicant by virtue of a prior reservation.

      . Had Barry received Slate’s letter of July 13 on July 29 instead, the actions which he took on and after July 29 would have been prompt under Freedman no matter whose version of the July 31 meeting is accepted. If Grant and Washington Parks were in truth discussed, then Slate had at least a chance to meet and negotiate with Barry. An administrative decision twelve days later was timely. If Barry is to be believed on his rendition of the July 31 conversation, plaintiffs got all they could ask for: a notice of prior reservation and a promise of . consideration should the holder of the reservation cancel. They so conceded below.