(gentle piano music) ♪ (gavel clacking) - And now, we'd like to call the case to order, Lopez versus Seccombe.

Appearances for the record, please.

- ["David Marcus"] Good afternoon.

David C. Marcus for the petitioners, Ignacio Lopez, Father Nuñez, Eugenio Nogueras.

(people murmuring) - ["Judge Yankwich"] On behalf of the respondent?

- Good afternoon, your honor.

My name is H.R.

Griffin, G-R-I-F-F-I-N.

I am the city attorney for the City of San Bernardino.

I represent the Mayor William C. Seccombe, who's present today before this honorable court as well as members of the city council.

- [Judge Yankwich] Have a seat.

Thank you both very much.

To all, welcome ladies and gentlemen, and to both counsel, good afternoon.

And, we are now on the record in the matter of Lopez versus Seccombe.

So welcome to this historic venue, our historically significant courtroom.

I'm going to ask both counsel to present argument this afternoon for a total time of 10 minutes each.

I will notify counsel at eight minutes of the two remaining minutes for your presentation.

So with that, let's begin with Mr. David Marcus, counsel for the petitioner.

Good afternoon.

- [David Marcus] Good afternoon and thank you, your honor.

Your honor, it is my honor to represent the petitioners in this claim and we appreciate the attention of the court; counsel, may it please the court.

The Fifth Amendment to the United States Constitution was ratified by Congress in 1791 and it provided in clear and unambiguous terms as one of the five rights enumerated in that amendment that no person shall be deprived of life, liberty, or property without due process.

In 1868, following the Civil War, where many of those rights were questioned, people lost their lives; 600,000 people lost their lives disagreeing on what those rights were.

The Fourteenth Amendment was passed applying the very same due process requirement to all of the states in the union, and it provided that no state shall deprive any person of life, liberty or property without due process.

And, it added-- - [Judge] May I ask, may I ask, does the historic landmark case of Plessy versus Ferguson have application to this case, the facts, and what you are requesting of this court?

- It does, your honor.

And, we acknowledge and we're well aware of Plessy versus Ferguson, the 1896 United States Supreme Court decision which provided that the treatment of Homer Plessy, a person described by the court as a "mulatto", seven-eighths white Caucasian blood and one-eighth African American blood, the state of Louisiana had established a rule that there could be separate train cars for Blacks and whites.

- [Judge Yankwich] If I follow that precedent, wouldn't that be the end of the case for your clients?

- Your honor-?

- And, wouldn't the city prevail because the city's position that there ought to be separate pool facilities?

Or, is your theory not to apply 'separate but equal' but perhaps to pursue a different legal theory?

- [David Marcus] No, your honor.

We can live with the decision as Plessy versus Ferguson, because unlike the facts of this case, the Supreme Court in Plessy versus Ferguson determined that it was not unconstitutional to have a separate car for the Blacks from the whites because the facilities were equal, that the Black cars were just as good as the white cars and therefore there was no reason for the Blacks to complain.

Unlike the facts in Plessy, here in San Bernardino, California, your honor, when the 'people of Mexican descent' or 'Latin descent'- as those terms were used by the city- were discriminately denied access to the pool, which they had paid for in part with their own tax dollars, just like everybody else who was using it.

When those Mexican descent people were excluded from the pool, they didn't have another pool to go to, your honor.

They had to go swim in the Santa Ana River.

That was their swimming pool.

Except for the days when they were humiliated by being made to-- allowed to be swimming the day before they clean the pool or drain the pool.

And so, we can live with Plessy versus Ferguson because there was no equal facility available to the Mexican descent and Latin descent people in San Bernardino.

- The city's policy, the charter, they maintain, I believe, and they're moving papers, that they can create separate and equal facilities for a number of reasons, whether they want to promote health and safety, law, potential violence, a clash between the majority population and the minority population.

Is that justified?

- Your honor, it's our position that their arguments, that the reasons that the people of Mexican descent and Latin descent in San Bernardino were excluded from the pool was because of potential criminal problems, potential health and hygiene issues, is nothing more than an after-the-fact contrivance and a pretext for their behavior.

The reason I know that is because in their policy, they didn't say "we can exclude anyone regardless of race, "regardless of religion, "regardless of what language they speak, "regardless of what color they are.

"We can exclude them if they are ill, "if they are dirty or whatever condition they may-- if they've been convicted of a felony or they're predatory."

That's the essence of due process and equal protection.

The City of San Bernardino, in this case, made that arbitrary and capricious decision before anybody had a chance.

- Are you saying that if we were to, on a continuum, follow the city's charter's policy argument that the same approach for exclusion can be applied to gymnasiums, libraries, other public facilities, the same rationale?

Or, if we are talking about pools and that's different than talking about other public institutions?

- Your honor, as the law currently exists with Plessy versus Ferguson, if, unlike the facts in this case, there was a situation that a particular facility, whether it be a school or whether it be a hotel or whether it be a railcar, whatever the case may be, truly did have equal facilities- even though I completely disagree with Plessy versus Ferguson and it's my fervent desire and belief that eventually the Supreme Court in the not too distant future will rely on cases just like this one- and the decision which we believe this court will issue in this case, in overturning Plessy versus Ferguson.

In this case, what we're dealing with is specific facts where there were not equal facilities available.

- You make a powerful and strong argument for on the one hand, it's different than Plessy versus Ferguson; on the other hand, the opposing counsel will argue, "No, your honor.

Your role is to follow the law," and to follow the law means to enforce the doctrine of Plessy versus Ferguson.

- And, you can follow the doctrine of Plessy versus Ferguson and still issue the injunction and rule in favor of the petitioners in this case because of the simple fact that there is no other equal facility.

The Santa Ana River is not an equal facility to the plunge and the bathhouse and the accommodations that are within the beneficial interests of this petitioner class.

- What is the makeup of the population of the city of San Bernardino?

- The 8,000 people we represent is definitely a minority.

And actually, that's the essence of why this is going on, your honor.

- And, is it your view that the promotion of the policy that you're advocating this afternoon, different than that of the city, is to allow both white and Hispanics to mix in the pools at any time?

- Absolutely, your honor.

There is an absolute vested constitutional right that goes back to 1791 in the United States.

- One of the concern that the city has that those who will use the pool, the plunge, are affected by the fact that they work in the fields.

They're dirty.

They're perhaps diseased.

Other health problems would be brought into the pool.

- Your honor, there are many Caucasian people that don't look like the Mexican people they're excluding who work in agriculture, as well: people picking potatoes in Chino, people milking cows.

There's a lot of other "dirty" jobs that white people or Caucasians do, as well.

And not knowing how much time is left, I would just simply like to close, your honor, that we're here in the comfort of this courtroom February 1944.

As we appear before you, your honor, in the comfort of this courtroom, men are giving their lives for this country, dying as Americans all over the world in World War II.

In fact, 350,000 Mexican-Americans, and they enlisted after Pearl Harbor, disproportionately greater percentage than any other-- - They are fighting in the war to promote the system we have in this country, which ultimately promotes the law.

But aren't you ultimately advocating that the law in this case, that you've maintained Plessy, that you're asking that we not follow it or that we distinguish it?

- No, your honor.

I'm simply saying that these people that are fighting and losing their lives in World War II, they're not dying because they're Mexicans; they're not dying because they're Latins.

They're dying because they're being killed by the enemy because they're Americans, just as the petitioners in this case, They may be of Mexican descent, but first and foremost they're Americans, and they're entitled to all of the rights and privileges of the Constitution, and their relatives, as they're dying protecting that Constitution, their brothers, their nephews, their cousins and their sons are being denied the privileges of that Constitution here in San Bernardino.

- Thank you.

Thank you, Mr. Marcus.

- Thank you very much.

- Let's hear from Mr. Griffin on behalf of the City.

You're the respondent.

- [Judge Yankwich] Talk to me about the population in the city and why having fewer people as opposed to the majority population justifies the city policy to exclude the Mexicans from the use of that pool?

- Yes, if it please the court.

Our Mexican population in the city of San Bernardino is about one-sixth the current population of the city.

The Mexican population in our community are allowed to use the Perris Hill plunge one day a week, and five days are reserved for the remainder of the community.

- Is that because they're just a smaller population number?

Or, are there other reasons?

- There are many other reasons, but one day was given because they're one-sixth of the population.

The City of San Bernardino is charged by its charter to regulate and run facilities within the city, such as the Perris Hill plunge, parks, museums, libraries.

Further, one of the greatest obligations for the public of the city, the mayor- - The City of San Bernardino charter entitles the city council the legal authority to acquire, own, maintain public libraries, museums, gymnasiums, parks, and the Perris Hill plunge.

Does that charter distinguish between some can use it, those facilities that I just outlined, and some cannot?

- [H.R.

Griffin] No, there is no formal or informal policy- - So you're advocating something that's beyond the policy, beyond the language, de facto or de jure, of the city charter.

- It is not, and I'll tell you why.

Also within the city charter, it charges the city with public protection.

The city has a policy-- - [Judge] What do you mean by that?

- To protect the public from disease, violence, public discourse, things of that nature.

- Let's talk about disease.

Do we have noted or found instances of communicable diseases being transmitted from one group to the other, referring to the Mexicans and the larger percentage Anglo population?

- What we do know, your honor, throughout the country, including California and the Inland Empire at the time of the pool use, we have smallpox, malaria, whooping cough breakouts.

So, we know that when people conjugate together-- - [Judge] The result-?

- That there's going to be health issues.

- The result of using the pool?

Or, the result of other conditions outside of the pool?

- It could be both.

It's certainly one of the concerns, and there are several reasons, if I can tell the honorable court, the city's concerns as public safety.

First and foremost, the major concern is health issues.

And, I'll give you an example of why there's a concern.

Many if not most of our Mexicans in our community, they either work in the field, in the citrus fields in the area east of us in Redlands, or they work in the vineyards in Guasti, Ontario, and Etiwanda.

In addition, they also work under laborous conditions for the Santa Fe Railroad as well as the Union Pacific Railroad.

Unfortunately, these jobs are dangerous, dirty jobs.

For example, in the fields they have to deal with pesticide, which if they go into the pool-- - [Judge] I understand.

- It can go into the pool water and cause health distress.

- I understand dangerous jobs.

I do not understand the health and safety component that you mentioned just a moment ago.

- Well clearly, and additionally, your honor, at these facilities, they do not have proper cleanliness, maintenance, bathrooms, running water.

- You mean the fields?

- In the fields and also in our neighborhoods.

Unfortunately the people, the Mexican people-- - So, why doesn't the city provide for those facilities?

- The city is providing the best they can.

We're a growing city and with those limited resources- - Would those facilities, to use Mr. Marcus' language and words, be 'separate but equal', as well?

- Of course, they would be.

Of course, they would be.

I would say this, your honor.

There are also other concerns by the city.

For example-- - Are there safety concerns?

- There is safety concerns.

Everyone is well aware right now of the Zoot Suit Riots, which are not just in Los Angeles.

We have experienced violence in our streets where young Mexican pachucos are attacking white people, marines, servicemen that come back from our serving in both the Pacific and European Theater.

- I understand the law and order, or law enforcement, excuse me, component.

I do not understand how that directly relates to the use of a pool.

- Well, for example, when you have two different groups that are to get together where there's a lack of communication, a language barrier, that would often lead to misunderstandings, which causes violence.

It has the potential to erupt in violence at any given moment.

The city is charged-- - How many incidents of the violence can you-- have you accounted for that have taken place in the city?

- [Griffin] Well, the-- the city- - One?

Five?

A hundred?

- [Griffin] The newspapers are replete with stories of violence occurring between Zoot Suiters attacking members of the San Bernardino community.

There is one other issue, your honor, that gives the city some concern, is that there-- these so-called pachucos, they dress suggestively.

- [Judge] Pardon me?

- They dress suggestively, sexually, and there's a concern that they could cause harm to young children.

There's a concern-- - How does it-?

- There's also concern about interracial relations.

- I'm looking at my notes, I'm looking at my notes.

How does a pachuco dress suggestively?

- [Griffin] Well, they wear certain types of clothes that are tight-fitting.

Some of them, your honor, unbelievably wear makeup!

- Are you saying suggestively "sexually" or suggestively "confrontational?"

- Sexually.

And so, there is a concern about that affecting young people in our community.

I would be remiss, your honor, if I didn't make a comment in regards to what learned counsel said on behalf of the petitioners.

First, the City of San Bernardino and the mayor, we are very grateful and honor the 350,000 Mexicans that serve and have fought honorably in both the European Theater and the Pacific Theater.

We also like honor the 15,650,000 other men and women who have fought and given up their lives and injuries fighting the dangers of Germany and the Japanese.

In regards to a comment counsel made when the court inquired about Plessy v. Ferguson, I would note that when the court asked counsel if he would follow Plessy v. Ferguson, should there be equal facilities, he answered he would, but then he said there are no like facilities.

- Your view, your representation to this court would be that I am duty bound by my oath to follow the law of the land in Plessy versus Ferguson.

- That is, absolutely.

And as a lawyer, I've taken that oath to follow the law.

And even counsel for the petitioner said that if there was a like facility, that Plessy v. Ferguson would be the law of the land.

What counsel fails to tell this honorable court is that in 1943, the Alessandro Junior High School principal John Miler met with Ignacio Lopez, Father Nuñez, and suggested they file a petition to have the city build a like pool in the Mount Vernon neighborhood.

Miler had gone to the city and they were open to discussion.

But instead-- - [Judge] Two minutes remain.

- But instead, Father Nuñez and Mr. Lopez, who are better described as community agitators, refused that.

They flat out refused and instead filed a petition and started demonstrating against the city.

So, the city would be more than willing-- - If, however, I determine based on this record, and the evidence presented, that on the one hand I am duty bound by the Plessy versus Ferguson case, but if I determine there's an alternative ground as set forth in the petitioner's documents, that would not bring Plessy versus Ferguson into play.

Correct?

- I would certainly agree from the legal standpoint, but factually I believe that the evidence is clear that the city's policy is rationally related to health and safety.

And a perfect example of that is this, your honor.

I know my time is running out.

Comment was made by counsel that there's, the pool's open six days a week.

Mexican; you have to use the pool on Sunday.

The pool is drained and cleaned on Monday at great expense, which I would suggest to the court is clear conduct by the city in doing that to show that there is a legitimate concern about the cleanliness of the pool because the Mexicans are in the field, they got pesticides.

Why would the city do that?

As a ruse?

In a guise to make it not look like we're segregating people?

That is close-in-time conduct.

That's not what I like to call 'after lawyer involvement' conduct.

Why would the city do that?

- Did you say "close-in-time" conduct?

- Close-in-time conduct.

The city had a policy.

After Mexican use, because of the concern about cleanliness, they drained the pool the next day.

That's clear conduct to show that the city is concerned-- - Is that-?

"Close-in-time conduct", is that a legal concept?

- It is a state of mind concept.

- Can you cite a case that supports it?

- It is a...no, I can't.

It's state of mind.

The city is showing that, so, so, so- - We are short of time, we are short of time.

But, last question.

If this policy, and it's not before this court at this time, is extended, theoretically, hypothetically, it could apply to gymnasiums and libraries.

How would we have the Mexicans use the library for a few hours one day a week?

Because that would be the logical extension.

- It would, but-- - Or, other facilities.

- I agree with that logic, your honor.

Quite frankly, though, we haven't had an issue with Mexicans wanting to use the library.

(audience chuckling) - Is that in the record?

(audience chuckling) - Yeah!

There's no problems at our libraries or gymnasiums.

Last thing.

I'd like to make a comment, your honor.

And it goes back to what counsel said about following the law under Plessy v. Ferguson if we did have a pool.

They were asking for an injunction to enjoin the city from this policy.

I would suggest that, based upon counsel's comments to this honorable court, that if the court was inclined to grant an injunction, the court make it a temporary injunction to last till the time a like pool would be built in the city for use by our Mexican and Latino population.

Thank you, your honor.

- I appreciate that very, very much.

The court, ladies and gentlemen, will file its findings of fact and derivative conclusions of law based on the evidence and the arguments presented this afternoon.

And, the court therein issues its ruling and its holding, in part, as follows: the respondent's conduct is illegal and is in violation of the petitioners' rights and privileges as guaranteed by the Constitution of the United States and as secured and guaranteed to them as citizens of the United States by the Constitution of the United States of America as particularly provided under the Fifth and Fourteenth Amendments.

The petitioners are entitled to such equal accommodations, advantages, and privileges and to equal rights and treatments with other persons as citizens of the United States in the use and enjoyment of the public facilities of said park and playground, to equal treatment with other persons, and to equal protection of the laws in their use and their enjoyment of said privileges as provided and afforded to other persons at all times when the same is open and used by them and in all public facilities.

With that, petitioner having requested relief, petitioner is entitled to a permanent injunction against the respondent, the judgment to be entered accordingly.

[out of character] Ladies and gentlemen, that concludes this presentation, and I would like to share with you as the judicial officer in this venue this afternoon, my following remarks.

And please allow me, I'll be brief.

When we undertake, ladies and gentlemen, historic reenactment or oral argument as we have this afternoon, I am often asked, as a judge, why the civil rights cases, for example, why not other famous cases like Marbury versus Madison, Gideon versus Wainwright, or Miranda versus Arizona, aren't those cases just as important and worthy of our focus?

Our answer is this: yes, those are cases that are historically important, and yes, they are worthy of our attention.

They are, of course, landmark decisions and they continue to influence the law to this day.

But what is it, ladies and gentlemen, that grabs our hearts and stirs our souls about these civil rights cases?

As important as Marbury versus Madison, Gideon versus Wainwright, and the Miranda case and many other significant cases which are vital to our constitutional rights and our legal system, those cases pale in comparison to a handful of mothers and fathers who, having seen their children turned away from local schools, public institutions, and pools, just because their skin was brown instead of white and their surname was Hispanic instead of Anglo, these parents and community leaders dared to stand up to forces much bigger than themselves, and they say, individually and collectively, "This isn't right.

This isn't American.

This is hurting me, and more importantly it's hurting my child, and I will not tolerate it."

It was the same with the Asian community in the Korematsu case, and it was the same with the Brown versus Board of Education case.

Individuals, just regular people who wanted to live their lives as Americans in what was supposed to be the land of the free.

For those people, those mothers and fathers, all of them represented those cases, it turned out to be more the home of the brave.

Why?

Because it took bravery and it took immense courage for the plaintiffs in each of the civil rights cases to stand up to the government for what they knew was right, for what they knew they couldn't accept any longer.

And in speaking of courage, ladies and gentlemen, as was mentioned earlier this afternoon, we must not forget the man, the lawyer who stood with them, David Marcus, the attorney who made it his life's work to help those whose civil rights were being trampled.

He needs to be remembered, and his memory needs to be honored.

In the historical context, please remember this: the very same year that the Mendez children were being turned away from the 17th Street School in Orange County, it was earlier that Mr. Marcus argued and won the 1944 landmark case of Lopez versus Seccombe, the case we've heard this afternoon, a class action lawsuit against the mayor and the city council of our very own City of San Bernardino for denying the Mexican-American community access to its parks and various recreational facilities.

The Seccombe case was the first case in this country where a judge ruled against the segregation of Mexican-Americans in regard to public facilities.

It was Mr. Marcus who fashioned the argument in the Seccombe case that eventually persuaded the Mendez and the Brown Court to rule in favor of the plaintiffs.

In each of those cases, the plaintiffs were children.

That is, it was not a matter of the equality of the facilities, but the separation of the children that was harmful, presented social science evidence to those courts, that segregation resulted in the feelings of inferiority among the Mexican-American children that could undermine their ability to learn and to socialize and to grow and to be productive Americans, and equally important, to participate in social, educational, and government institutions including the use and the enjoyment of recreational facilities, like a pool.

Sitting at the counsel table with Mr. Marcus in these cases was Amicus Counsel Thurgood Marshall, later to be the first African-American to sit on the United States Supreme Court.

The argument presented in the Mendez and Brown versus Board of Education cases was exactly identical in the very same argument presented by Mr. David Marcus in the landmark Seccombe case.

Imagine that?

All of these plaintiffs in the civil rights cases were not attention-seekers.

They were not comfortable in the limelight, and they weren't out for their five minutes of fame.

They were just parents and people who wanted their children to have the best that America had to offer, and they were willing to go toe-to-toe to obtain those rights.

And this is why, ladies and gentlemen, we choose the civil rights cases like the Seccombe case.

Because that kind of courage, that kind of determination, and that kind of patriotism stirs something deep within all of us and reminds us that there is such a thing as a good fight.

It is right, it is important; indeed, it is imperative to fight the good fight.

In this country, in this country, we go to war to defend those rights and ideals because they are so vital to our country, to our nation.

So in closing, ladies and gentlemen, our country still faces the challenges in the civil rights arena.

It's not a perfect country, it's not a perfect place, because people aren't perfect.

But, part of progressing forward is looking backward, just as we have done today, this afternoon, and remembering where we've been, realizing how far we've come, and recognizing that it takes ordinary people with extraordinary resolve to make America truly a land of equal opportunity and a land of justice for all.

So thank you very, very much.

(audience applauding) (uplifting string music) ♪ ♪