ALDERMAN v. UNITED STATES

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Argument of Griswold

Chief Justice Earl Warren: Number 133, Rob B. Kolod et. al, petitioners versus United States.

Mr. Solicitor General.

Mr. Griswold: May it please the Court.

This case began as an indictment in the District Court for Colorado for conspiracy to transmit in interstate commerce communications containing threats designed to injure one, Robert Sunshine.

There were then four defendants; one was acquitted and of course is not here.

The other three defendants appealed to the United States Court of Appeals for the Tenth Circuit.

At the trial, the defendant Kolod sought to introduce evidence about an illegal surveillance which is the fancy way to call it, bugging is the other way it's called at the Desert Inn in Las Vegas, Nevada.

He offered this in rebuttal in order he said to disprove or offset evidence offered by the Government.

The trial court examined the materials in camera and held that they were not relevant and that the evidence could not be introduced.

The three defendants who were convicted appealed to the Tenth Circuit Court of Appeals and pending the appeal, the Government disclosed that it had additional files relating to conversations overheard at the Desert Inn.

The case was remanded to the District Court to examine this material in camera.

The Court found nothing admissible in the additional material.

Thereafter, the Tenth Circuit affirmed the convictions.

A petition for certiorari was filed here and was denied in October 1967.

Now that is the background.

Before going further, I should point out that the electronic surveillance material examined in the courts below related to the defendant Kolod and the premises which he used in Las Vegas, Nevada.

Kolod has since died and the petition as to him has been dismissed on January 29th of this year.Consequently, there is nothing now before the court relating to the electronic surveillance material which was considered by the courts below.

We now have wholly new problem.

At the post trial hearing in the District Court and in the petition for certiorari here, counsel for Alderisio, another -- the defendants stated that there was newly discovered evidence of a wiretap or listening device used against his client in Chicago between October 1, 1960 and December 31, 1962.?

The nature or source of this evidence was not stated, it is this surveillance in Chicago relating to the petitioner Alderisio with which the court is now concern.

After the denial of the petition for certiorari, the petitioners sought an order suspending the denial of certiorari pending the filing of a petition for a rehearing.

Mr. Spritzer, the acting Solicitor General made a typewritten response to this application.

Thereafter, the petitioner filed a petition for rehearing and a motion for the disclosure of electronic surveillance and this is the matter which is now before the Court.

Chief Justice Earl Warren: We'll recess now.

Mr. Solicitor General, you may continue.

Mr. Griswold: Just before the recess, I said that counsel for the petitioners had filed a petition for a rehearing and a motion for the disclosure of electronic surveillance and that that was where we were now.

I left out another step which is the step which is the one which brings us here.

The United States made a response to that motion and the Court then on January 29th, entered an order with -- an opinion remanding the case for an adversary proceeding in the District Court.

It was then that the United States filed the motion which is now before the court.

This is entitled a motion to Modify the Order of the court.

In this motion, we accept without a question of any sort this Court's decision that the petitioners here are entitled to the independent determination of a court.

We urged however that this should be done in the first instance by the judge in camera with the judge then being free to order such further proceedings as he may deem necessary or appropriate as a result of his examination.

This is the procedure, we would point out which was followed in this case with respect to the Kolod surveillance in Las Vegas.

This was directly approved by the court below and this court denied certiorari with the questions specifically raised in the petition.

Of course that denial is in no sense binding on the court but I do mentioned it to show that there is some precedent for what we urged and similarly the Seventh Circuit as recently sustains such a procedure in the case of Battaglia against United States which was decided there on April 10th.

Why should we be concerned?

Justice Potter Stewart: Is that a reported case Mr. Solicitor General?

Mr. Griswold: Its -- it is simply cited that way in our brief Mr. Justice, Battaglia against United States but it is not yet in any -- in the federal reporter.

I have a copy of the opinion here which I can gladly leave with the clerk if that would be helpful.

Justice Potter Stewart: It might be helpful to me.

Mr. Griswold: Why should be we concerned?

Why shouldn't the defendants and their counsel be free to see everything and make what they can of it?

To borrow a phrase, the automatic knee-jerk reaction would be that way.

The question is whether there are any other factors in the situation which merit further consideration.

I'm not sure that there are, I can say though that the entire problem is a very trouble someone and is full of difficulties.

Various aspects of it have been before the court in seven cases which have been disposed of and there are now six cases pending before the court in which it is involved including this one.

For the possible convenience of the court, these have all been lifted -- listed in a brief memorandum which I prepared and have asked the clerk to make available to the court.

I find in the process, I've tried to put together a complete collection of all of the papers which have dealt with this problem and they're now 32 items in my collection and it's something of a task simply to keep them sorted out in one's mind.

The problem first became apparent nearly two years ago in the case of Black against the United States where after the denial of certiorari, the Solicitor General filed a memorandum in May 1966 which disclosed electronic surveillance.

In response to instructions from the court, a further memorandum was filed in July 1966 going in to considerable detail not only as to what had been done but also what the Department of Justice was doing about it.

The court then vacated the conviction of Black and remanded the case to the District Court.

In that case, there was no doubt that the materials were relevant and the sole question was to determine whether they had led to any of the evidence that was used at the trial.

Why should not the same procedure be used in every case?

Perhaps it should.

This is not an area where there are any clear guides either of principle or of experience.

I've worried about the problem almost constantly for the past six months.

As a result, I have at least come to the conclusion that there are some matters which are worthy of consideration.

The problem of relevance of the material is one you can't get away from.

One might say, Well, you bugged him, didn't you?

You admit you did, Why don't you come plea and give him the material?

But perhaps it's more complicated than that.

Seeing the fruits of bugging as a new experience for me, it's a little like putting a live television camera on a street corner all sorts of things happen, most of it is very dull, some of the rest is titillating but quite irrelevant.

There's an almost infinite gradation.

Let us suppose that a microphone is put in a room which picks up a conference between the defendant and his lawyer.

Of course this should be disclosed and where any conversations between a defendant and his lawyer have appeared, we have always disclosed this since the problem arose.

We may next suppose that a bug is put in a room of defendant A, this may pick up conversations of A and these may or may not have any conceivable connection with a criminal prosecution.

A may discuss a contemplated crime, this might be the crime for which he is being prosecuted or some other unrelated crime or A may discuss a trip he plans to take with another man's wife intrastate in order to keep it from being federal.

Moreover, if A's premises are bugged, particularly office or business premises, conversations of many persons may be picked up.

In experience, most of the records of the bugging of A's premises will consist of conversations of other persons than A quite often without A being present.

Of course such conversation might be relevant to criminal conduct by A and we agree that a judge should decide that question.

But generally they will not though they may involve other persons often in highly libelous or embarrassing ways.

Should everything be disclosed to A and his counsel even though the conversations are of other people who had no reason to expect that their conversations would be overheard.

There's a catch overtone in this problem even though the conversations are of other people and have nothing to do with A's activities.

Perhaps most remote is the situation where the bug is put on B unconnected with A.

But A wonders into the picture.

A comes into the room for some purpose, perhaps business, perhaps a social call, perhaps out of curiosity or by mistake.

What may be picked up from A may be relevant but does this mean that the entire record should be made available for A's inspection.

In an underworld atmosphere which is sometimes involved in this cases, there maybe wholly irrelevant things said by other persons which would be very interesting indeed to the person who would not get such information unless there had been illegal activity by representatives of the Government.

Should all of these be made available to A merely because at some point he came in to the sound tracking?

It's bad enough that there was such illegal activity but does the fact there was illegal activity mean that its fruits must be broadcast to the world.

As happened in the (Inaudible) case in Boston last May where the materials became an exhibit in the case to somebody's carelessness, I don't know who, it was not sealed, they were then copied by the press in the clerk's office and reproduced with big headlines by many newspapers.

It said that this can be safeguarded against by proper protective orders in the District Court.

All that I can say is that this has not worked perfectly in practice and I doubt that it will in the future.

In any event, it does not protect third persons from disclosure to the defendant himself.

And that may in some cases be a very serious matter.

Suppose, for example, that in the bugging of A's premises, two of his lieutenants were picked up in his absence discussing how they might displaced it.

Thus, it is important to note that the question of what disclosure the Government makes of conversations which it has overheard, involves more than just a right of a particular defendant before the court.

It involves the right of each of the participants to the conversation.

We believe that the rights of these other participants in overheard conversations and of still other persons to whom reference is made in conversations are also entitled to protection and that the interest these individuals have in keeping the conversations private will often militate against the unnecessary disclosure of the conversations to the defendant.

Under the procedure that Mr. Williams proposes, no protection would be given to the interest to these third persons.

We submit that by giving the trial judge the discretion to make an in camera examination of the records of the overhearing some degree of protection can be provided to these third parties since records of their conversation would only be disclosed to the defendant if they were arguably relevant to the case at issue.

I don't know what the answer is, it is however to coin another phrase, a condition and not of theory that we are confronted with.

I have sometimes felt that the answer is that we should gather up all of these records and take them to the place in the treasury where they disposed of worn out paper money and have them all totally destroyed, macerated I think is the term with appropriate witnesses.

But we obviously cant do that, indeed in one of the cases now pending before the court, McGarry against the United States number 1184, we are in trouble because something like that did happen.

The records there were destroyed, I think without any evil intent but the fact is that they're gone and we don't -- we can't say what was in them.

My observation leads me to believe that the Federal Bureau of Investigation has been very methodical about all this.

Their records have been well and carefully kept.

One can find out where a bug is placed and the dates when it was in use.

There's an index not merely of the person's bug but a person's mentioned in the interceptive conversations.

However, in the case of some other Government agencies, the records are more scanted.

Often records have been destroyed and indexing is less than satisfactory.

I suppose that with the passage of time, these problems will fade away.

But for the time being, they are very troublesome.

Finally, I come to another and very important aspect of the question.

It's not directly involved in this Kolod case but the order here may affect it and it cannot be overlooked.

The question is involved in Ivanov against the United States, number 885 and Butenko against the United States number 1007 miscellaneous which are pending before the court on petition of certiorari.

These are national security cases.

For a great many years, electronic surveillance has been specifically authorized and used in cases involving national security as is done by every other country in the world.

We're not asking the court in this case to pass on the application of the Fourth Amendment in situations where the surveillance has been undertaken in order to protect the National Security or a military secret, although it can surely be argued that the line of reasonableness and after all this is one place where the constitution does use that word.

What it prohibits is not all searches and seizures but on reasonable searches and seizures.

This is one where the line of reasonableness surely varies with the circumstances.

We do suggest too that super -- that experience supports the view that there are matters which a nation cannot afford to overlook in its own self protection.

Where the persons involved have diplomatic status, they can be expelled.

Why are we concern then?

Well, there are other cases of which Ivanov and Butenko are examples, where criminal prosecution is appropriate.

If there has been electronic surveillance, we in the Department of Justice cannot pass on its relevance ourselves.

We accept that view and agree with it but we think that question of relevance in such cases should surely be first determined by the judge in camera without further disclosure unless he concludes that such further disclosure is necessary or appropriate.

I'm advised that unless disclosure can be confined to in camera consideration by the judge, it will be necessary to discontinue prosecution in most of these cases involving the national security, for the disclosure cannot be made in a way that may become public or to persons who are agents of foreign Governments.

That means among other things that we cannot prosecute even though the surveillance is wholly unrelated to the prosecution.

If we do not prosecute, we cannot vindicate the law against espionage in these cases as in Ivanov and Butenko.

In that event, we will not only have a few less people in our jails but also fewer people to trade and thus more difficulty in obtaining the release of Americans held in other countries.

I may say too that I had great difficulty in getting authority to suggest that there could be disclosure for these cases even to judge in camera.

This is more than would be done in other countries and perhaps we should not handicap ourselves too much.

This Court has long recognized certain special powers in the President in the field of foreign relations and as Commander in Chief of the Army and Navy.

The Zimmerman note and the breaking of the purple codes are important events in our history and they were both done by interception.

It is said that when Secretary Simpson was Secretary of State in the early 1930's, he terminated this activity and in State Department saying that, Gentleman, don't read other people's mail but by the time he became Secretary of War again in 1941, he changed his view.

Here, there are constitutional provisions which point in different ways and the procedure I suggest may be a way of harmonizing them.

There are other situations as we point out in our brief where the District Judge on his own responsibility and without a formally adversary hearing makes determinations as to the admissibility of evidence.

This has recently been recognized by this Court with respect to prior statements of witnesses given to the Government so called Jencks Act statement and also to the grand jury testimony of Government witnesses that's involved in the Palermo case and then the Dennis cases both rather recently decided.

Justice Abe Fortas: Mr. Solicitor General, does the -- your proposal for handling this material foreign with the statements in the court's opinion in Dennis with respect to procedure there, in Dennis, as appears on page 875, the court's opinion I take it was contemplated that the grand jury transcript might be handed to the judge in camera that the Government might file an application for protective orders as Dennis is in unusual situations such as those involving the nation's security or clear cut dangers to individuals who are identified by the testimony produced.

Now, apart from the specific reasons that might be advance to justify the trial judge in refusing the turn over, the bugged recording, does the procedure that you proposed here contemplate that the trial judge's authority to refuse to turn over material will be limited to case where application is made by the Government?

That specific parts to be eliminated and presumably that application would be served on the other side, the other side be greater in handicapped of course because when they have access to the material, but that would at least preserved the substance of the points notify the other side that some material is being withhold, withheld and perhaps in general the nature, the reason why in general category it's being withheld and would also preserve the matter on appeal.

Now, is the suggestion that you make here differ, does the suggestion you make here differ from that one that I believe is outlined by the court's opinion in Dennis?

Mr. Griswold: It's a question of words Mr. Justice.

Justice Abe Fortas: That's also a very important question of --

Mr. Griswold: I would think Mr.-- procedure --

Justice Abe Fortas: It's also a very important question of notice and whether the trial judge will proceed to look at this material in camera and then only the Government will know that he has cut out something or withheld something and the reason for him, the preservation of the points for appeal.

Mr. Griswold: I would suggest Mr. Justice exactly the same procedure that was followed in this Kolod case in the District Court in two places.

The materials are made available to the district judge, the other side is advised that the materials are made available to the district judge but the district judge, if he decides that they are not relevant, simply advises both parties that the materials are not relevant.

Justice Abe Fortas: Well, that --

Mr. Griswold: Of course the materials are then preserved under seal --

Justice Abe Fortas: That does --

Mr. Griswold: -- and go to the appellate court.

Justice Abe Fortas: That does fall short of the procedure outlined by this Court in Dennis with respect to the grand jury transcript.

Mr. Griswold: I believe it does.

Justice Abe Fortas: And why would you exclude the requirement for an application so that the other side will at least have notice that the Government has moved that section, that material identified by pages so and so of the transcript let's say, applications made into the court to withhold that material for national security reasons, withhold other material or grounds of relevance.

Why would you object to that?

Mr. Griswold: I believe that the other side does know in all cases about the fact of the material.

The Government has disclosed the materials in these cases.

Justice Abe Fortas: I don't understand that but go ahead.

Mr. Griswold: No, I think you're quite right Mr. Justice, up until the Kolod decision unless the Government concluded that they were arguably relevant and that was interpreted very broadly.

There was not even disclosure that is correct.

Under the Court's decision in Kolod which we accept, we would now disclose everything where the person involved is mentioned involved in anyway but we would submit it to the judge to decide whether there was anything in it which required further proceeding of any kind.

And I find it very difficult to see how you can specify or how it's very useful to the other side to specify.

You say we disclosed so many logs containing so many pages and we say that what's on pages 84 to 96 shouldn't go to the defendant.

He doesn't know what on pages 84 --

Justice Abe Fortas: And it put the defense on notice so that if they chose they can -- that's -- material has been excluded and in general on the basis of it so that if they choose they can ask the appellate court to take another look at this and there -- thereby you have a bit of supervision --

Mr. Griswold: They should certainly have --

Justice Abe Fortas: over the trial judge.

Mr. Griswold: -- have that right and they would know in all of these cases that the material had been submitted to the district judge and that he had excluded it.

Justice Abe Fortas: Well, if that is part of your proposal (Voice Overlap) --

Mr. Griswold: That is certainly part of our position.

We have no suggestion that this be done secretly by the District Court in the sense that the other side doesn't know that it's being done.

We do think that the District Judge ought to do it without disclosing the content of the material to the other side.

We submit that in balancing all of the factors in this difficult situation, the sound solution is to provide for disclosure to the district judge and I would add with knowledge to the other side that this is been done.

With such further proceedings, as he may think necessary or appropriate and for this reasons we submit that our Motion to Modify the Order of the Court should be granted.

Chief Justice Earl Warren: Mr. Williams.

Argument of Edward Bennett Williams

Mr. Edward Bennett Williams: Mr. Chief Justice, may it please the Court.

The outset I would like to make an analysis if I may of the Government's position with respect to this motion.

I'm afraid a fairly hostile analysis because I'm concerned that the sheer proliferation of instances of microphone surveillance that have come to light in last year or so have began to dull our capacity for indignation, at the practice, at its consequences and at Government's position with respect to it.

From the papers that have been filed in this case, we readily conclude that petitioner had his premises under electronic surveillance for a non-disclosed indeterminate amount of time.

That a device was placed on his business premises for the purpose of picking up his private conversations for an indeterminate length of time.

And we further can conclude that in fact his private conversations were picked up over an indeterminate period of time and they were recorded.

Logs, memoranda and records were made of those conversations which are now in the possession of the Government.

We can further conclude that of course his constitutional rights under the Fourth Amendment have been violated by agents of the Government.

And we can further conclude that in doing these acts, agents of the Government transgressed the criminal statutes of the United States because Title 18 of Section 241 makes it a crime to injure any citizen in the enjoyment and the exercise of his constitutional rights, it makes it a crime punishable by a term of imprisonment up to 10 years and a fine of $5,000.

And we can conclude further, because this Court can judicially notice the statutes of the State of Illinois that agents of the Government in cavalier fashion violated the statutes of Illinois because there is a very stringent eavesdropping statute which makes it a crime amenable to a term of imprisonment for the perpetrator, to eavesdrop by an electronic device for the purpose of overhearing the private conversations of a citizen.

This Court, beginning 14 years ago, put the spoken word within the penumbra of the Fourth Amendment.

It did it for the first time in Irvine against California back in 1954.

That's repeatedly said so in Silverman in 1961, in Wong Sun in 1963 and twice last year in Burger and Katz.

So that agents of the Government have taken seized illicitly on constitutionally and I say even criminally the private conversations of this petitioner.

And they hold records, logs and memoranda of those conversations in their possession now but they say that petitioner should not have access to that store of information.

Justice Potter Stewart: Mr. Williams, presumably, they also seized illegally and criminally and all those other adverbs you used, the private conversations of other people too and it certainly wouldn't advanced the right of those people to have those conversations turned over to you, would it?

Mr. Edward Bennett Williams: If they seized conversations of other persons, persons other than the petitioner at a time when he was not present on his own premises, I suggest sir, that they violated his constitutional rights because the planting of an electronic device by necessity requires a trespass.

It requires perhaps a burglary.

In Illinois, it would require a burglary because it would be an illegal entry for the purpose of committing a crime and therefore he would have a constitutional standing to suppress any evidence obtained as a result of that illegal conduct.

In order intelligently to exercise his right to suppress, he must know and therefore I say, Mr. Justice Stewart that the right to privacy of the third and fourth party must yield to his constitutional right under the Fourth Amendment and --

Justice Potter Stewart: He has constitutional rights too under this (Voice Overlap) --

Mr. Edward Bennett Williams: They have a constitutional right against Government surveillance --

Justice Potter Stewart: Yes.

Mr. Edward Bennett Williams: -- which has been abrogated by the Government here.

They do not have a right superior to the petitioner's constitutional right to prevent him from learning what was said on those premises.

And we need have no fear Mr. Justice Stewart, concerning that because in the first instance the petitioners themselves will ask the Court for protective orders so that their privacy will not be further invaded then it already has been by the action of the Government.

And protective orders can be issued under Rule 16 for the benefit of those third parties who are on petitioners' premises who conversed between themselves and who would like to have their privacy protected to the full extent.

I suggest that the Government's position on this matter is really vacuous because it is asking this Court to formulate a rule; it is asking this Court to formulate a policy predicated on the fact that the trial judges are unable to enforce compliance with their own orders.

It's asking this Court further to formulate a policy predicated on the fact that the miscreant eavesdropper has a greater interest in the privacy of the victim than their victim has.

I suggest that all the safeguards that we're concerned about that the Solicitor's -- General has expressed himself on can be taken cared of by protective orders under Rule 16 for those persons.

I suggest to the court that basic application of principle fundamental toward jurisprudence equal justice under the law would require -- and we don't ask for this and it's never been done.

It would require even a prosecution of the eavesdroppers under the statutes which they have violated.

But the basic rules of law, logic, reason and decency certainly require them to make restitution to the victim, to put the victim back as nearly as possible in the status quo if they had gone in to his office and had burglarized his correspondence and made off with it, could the Government be heard to say we shall return only such of his correspondence as his germane to the pending case against him?

Could they say that?

Is that a defensible position legally or morally?

I suggest that is not.

Can they do this?

Can they go in and listen for months and months to the conversations of an American citizen?

Justice Abe Fortas: Well, Mr. Williams, it's in a little more complicated and subtle in that.

Let's suppose you have a Katz's type of situation where those bugging of a telephone booth to get information on Mr. Katz, and let's suppose, I don't believe this happened in Katz, but let's suppose that in the course of that they picked up telephone conversations by Mr. Williams and Mr. Smith and Mr. Jones and so on.

Then, they prosecute Mr. Katz and Mr. Katz says, I want all of the bugging records not just the bugging records related to me but I want them all even if Mr. Williams talked to his lawyer or Mr. Smith talked to somebody else.

I want them all.

Mr. Edward Bennett Williams: Mr. Katz's position would be wholly untenable in my view Mr. Justice Fortas because he's not talking about his own premises when he talks about the use of a public telephone by someone other than himself.

Justice Abe Fortas: Well then, now -- alright.

Now, let's take a look at this carefully.

What you're doing then is making the assertion that bugging -- that when a person's office I suppose or his home is bugged that he is entitled to the total fruits of that bugging --

Mr. Edward Bennett Williams: (Inaudible)

Justice Abe Fortas: -- whatever -- what -- whomever it may involve --

Mr. Edward Bennett Williams: I am saying --

Justice Abe Fortas: -- and you would not extend that outside of the premises in which the person has an occupancy right, is that correct?

Mr. Edward Bennett Williams: That's exactly what I'm saying Mr. Justice Fortas.

I'm saying that the petitioner's office, his business premises were invaded unconstitutionally and illegally and he has the rights to the fruits of that trespass and if the fruits of that trespass happens to be the conversations of two persons other than himself, I suggest that he has a right in order to exercise his motion to suppress intelligently to know what they say and he should received it.

I would be the first to say, under a protective order that would safeguard them to the maximum but would still preserve his constitutional rights.

Justice Abe Fortas: Safeguard whom to the maximum?

Mr. Edward Bennett Williams: It would safeguard the persons who engaged in the conversation.

Justice Abe Fortas: How would --

Mr. Edward Bennett Williams: It would safeguard them from disclosure other than to the defendant and it would safeguard them from disclosures other than we're absolutely necessary in an adversary proceeding designed to protect the Fourth Amendment rights of the defendant.

Justice Abe Fortas: What you're saying is that the court could put the defendant and his counsel under an order not to disclose the contents of the material except in certain circumstances?

Is that kind of protective order you're talking about?

Mr. Edward Bennett Williams: Yes sir.

And as I indicated earlier the petitioner will ask for such an order because the petitioner is not anxious to have his own privacy further invaded.

And so he will ask --

Justice Abe Fortas: You mean he wouldn't trust his counsel?

Mr. Edward Bennett Williams: He will -- he would trust his counsel but he might not trust the opposition with respect to the conversations that are disclosed because experience has taught us that the miscreant eavesdropper becomes more cavalier with respects to his leaks from his warehouse of stolen privacy after it has been released to the victim.

So that there is a reason for asking for such, there is a reason for asking for such a protective order.

Justice Abe Fortas: Is a miscreant eavesdropper maybe a family man who is a member of the police force, is that -- are we talking about the same point?

Mr. Edward Bennett Williams: Yes sir, a neighborly policeman, if the Court please.

Now, with respect to the position of the Government in which they urged the Court that this really is not anything new, this is really an old traditional way of handling this problem.

They say why the courts have been handling this problem in Jencks materials and in the case of grand jury minutes for a long time and that's all we're asking.

Well, I think there are two very, very dramatic differences between Jencks materials on the one hand grand jury minutes and the logs, memoranda and records of electronically eavesdropped conversations.

The first is, the Government has a right to the Jencks material because they obtained them lawfully.

They have a right to the grand jury minutes because they obtained the grand jury minutes lawfully and when a defendant comes in and he asked for a Jencks materials or grand jury minutes, he's asking for something that belongs to the Government to which he has no right unless it is germane to his guilt or innocence.

We're not talking about that, we are talking about something the Government has no right.

They have no right to his private conversations.

They have no right to have invaded his privacy of communication and he is asking for something to be returned that belongs to him and that's the difference between Jencks Act materials, grand jury materials and the logs that we're talking about.

Justice Abe Fortas: Let me ask you one further question if you don't mind?

Mr. Edward Bennett Williams: Yes sir.

Justice Abe Fortas: Suppose it's a hotel room --

Mr. Edward Bennett Williams: Yes sir.

Justice Abe Fortas: -- and it's -- the occupant of the hotel room is pretty social falling, he has lots of people in from time to time whether he is there or not --

Mr. Edward Bennett Williams: Yes sir.

Justice Abe Fortas: -- would you still extend it depending on how long his name appears on the register?

Mr. Edward Bennett Williams: Depending upon how long he has a lease to that room, I would say that he has a right and a standing to object to transgressions on the privacy of that (Voice Overlap) on that room.

Justice Abe Fortas: And I suppose -- suppose Mr. X has rented the room, but suppose Mr. Y has been in there a great deal and Mr. Y is the one who is prosecuted not Mr. X and Mr. Y finds out the room has been bugged and so some conversations of interest to him had been obtained.

What would be your standard there?

Mr. Edward Bennett Williams: Now, Mr. Y you say has --

Justice Abe Fortas: Does not rent the room, he is just --

Mr. Edward Bennett Williams: Does not rent the room?

Mr. Y is a pure invitee and he has standing there only during the life of his invitation then I would say that his rights are circumscribed by the extent of his invitation and when he's there present, he would have the right to his conversations and those conversations of the persons who were there with him present at his invitation but I would suggest --

Justice Abe Fortas: Only while he is in the room?

Mr. Edward Bennett Williams: Yes sir.

But I would take the opposite position with respect to the man who has the lease on the room because a whole different set of principles come into play.

He is complaining about a trespass against premises which he rented.

Justice Potter Stewart: Your position is that X is entitled to those tapes of Mr. Y's conversation with Mr. Z just as a matter of a property right?

Mr. Edward Bennett Williams: Now, let's settle --

Justice Potter Stewart: It's a property right.

Mr. Edward Bennett Williams: So that we have our nomenclature correct Mr. Justice Stewart, is X the lessor of the room?

Justice Potter Stewart: Yes, he is the lessor.

Mr. Edward Bennett Williams: Lessee?

Justice Potter Stewart: He is the lessor.

Mr. Edward Bennett Williams: The lessee?

Justice Potter Stewart: The conversation is between -- lessee?

Mr. Edward Bennett Williams: Yes.

Justice Potter Stewart: The conversation is between Y and Z --

Mr. Edward Bennett Williams: And I say yes --

Justice Abe Fortas: -- in a room that X has rented.

Mr. Edward Bennett Williams: If X is a defendant in a criminal case and there has been a trespass by the agents of the Government against his room, there has been the planting of electronic device in his room then I say the Government may not profit against him in its prosecution by its own misconduct, by its own criminal conduct, by its own burglary that in order for him to suppress that which is been gained as a result of that trespass or burglary, its necessary for him to know under a protective order what was gleaned thereby.

Justice Potter Stewart: Well, your point was that the conversation between Y and Z is the property of X, he is entitled to his property right?

Mr. Edward Bennett Williams: I'm saying he has the right to know, sir.

Justice Byron R. White: Mr. Williams, I take it that X wouldn't have known what Y and Z said between themselves except for the Government's bugging.

I don't suppose he could have ever found out what Y and Z said while he wasn't there.

Mr. Edward Bennett Williams: That's right.

Justice Byron R. White: But your point is that if the Government violated his rights, what Y and Z said between them might have certainly approved some very valuable lead to the Government in --

Mr. Edward Bennett Williams: Yes sir.

Justice Byron R. White: -- proving their case.

Mr. Edward Bennett Williams: Yes, sir, exactly and --

Justice Byron R. White: And that you can't ever tell that until you look at it?

Mr. Edward Bennett Williams: Until you look at it.

And I say this with respect to the position urged by the Solicitor General, in which he would advocate the judges looking at this material in determining what of it should be given to the petitioner.

I'll take second place to no one in my respect for the courage, the independence, the objectivity and the fairness of the federal trial bench in this country but without as a preface, I say respectfully that the trial judges are not equipped or qualified to do this job.

They can't do it.

There is no way that they can determine what has been relevant to a prosecution.

We all know it's been said a hundred times I suppose that a criminal prosecution is -- the old metaphors it's like an iceberg, one eight of it shows and the layers know the seventh eights it's under water.

Where the trial judge is determining whether Jencks material is relevant, he has just heard the witness testify on direct examination.

Now he juxtapose as a sheaf of papers to determine whether there is an inconsistency between what he reads in the Jencks material and the direct testimony and he can do that.

Even with respect to grand jury testimony he may with diligence take the grand jury testimony and read it carefully, juxtapose it against the direct testimony of the witness whom he has just heard and make a determination that there is something useful there to the defense but we're not talking about that.

We're not talking about sheaves of material, we are talking in -- as our paper show, we are talking about electronic surveillances which have produced cases of material.

Is the judge to be handed cases of logs and memoranda and as he was in one case and had to delegate part of the responsibility to another judge and take four and half weeks to read it.

Is he to do that and try to determine what is relevant to the skeleton of an indictment because in most instances, these motions will be before trial?

Let's assume it was an income tax case.

The standard indictment in an income tax case today is the words of the statute, a number and a year.

If its a net worth case and if there has been an electronic surveillance of the taxpayer for three of four months, and if the trial judge is handed a room full of materials, how in the name of reason is he going to determine what is relevant to that case.

Only the counsel and his client can make that determination.

Why?

Because the way it's done, if the Court please, supposing the taxpayer had a telephone conversation with his lady friend to use the same illustration as was used earlier, as the result of the lead from that conversation the lady friend will be interviewed and as a result of that, ffurriers and jewelers and perhaps automobile salesman will be unearthed.

They will show up as witnesses at the trial.

There will be nothing to suggest that that lead came from what might have been an innocuous conversation with his ex-lady friend.

And how it would be concealed, it will be concealed in the most interesting clandestine and surreptitious way because the nomenclature in the lexicon of the eavesdroppers is confidential informant.

As the result of a disclosure from a confidential informant, we interviewed C, the ex-lady friend of the suspect and we found out the following so that there is no way that the judge is going to know that this evidence has been unearthed as a result of an electronic eavesdropping device.

And in fact as we point out in our papers, Government counsel themselves have been beguiled by this tactic and have stood up in good conscience and in good faith and made misrepresentations to the court with respect to the source of their evidence.

Why, because the eavesdropper conceals his illegality and his illicit conduct and he does it with a standard investigative nomenclature confidential informant discloses.

Furthermore, we have shown illustrations where the monitor in charge of the case has been more sophisticated than to reduce this to writing.

Instead, he monitors the electronic device.

He listens for leads and then that evening he calls in the field and he tells the field agents go check this out.

Go check this out.

Check this out.

The field agent is kept completely in the dark.

He never knows that the lead was born from a tainted source and that the evidence which he is unearthing is polluted and he is prepared to come in and say, Well, I developed this lead from a perfectly lawful source and I did it as a result of an instruction from my superior.

When the superior is then called to the stand to find out where he got his lead, he has the cloak of confidential informant and the bug is not unearth and I suggest that only counsel, counsel with his dedication to his plan will lead all that material and who knows the facts and who knows the case from beginning to end can do the job of determining what is relevant and what is germane and what leads were unearthed with respect to the prosecution (Voice Overlap) --

Justice Byron R. White: Now, in your example with the lady friend, I suppose that you are saying that you're not only should know whose conversations were picked up but actually what the content was even though, I don't suppose even diligent counsel would suggest that perhaps you can unearth any helpful, anything out of the content of what was said --

Mr. Edward Bennett Williams: Yes.

Justice Byron R. White: -- I mean that you would -- that the two people say to each other, Well, are you going to the movies?

And I -- they say -- the other one says, Yes.

Well, now perhaps, what was said wouldn't be very relevant and I suppose it might be very critical to know that those people were actually talking on the defendant's premises.

Mr. Edward Bennett Williams: It comes very critical Mr. Justice White.

Justice Byron R. White: I mean but so -- I gather that wouldn't satisfy you if they just disclosed to whose conversations were picked up?

Mr. Edward Bennett Williams: No sir, I wouldn't.

Justice Byron R. White: Although, you would consider must be some conversations, the content of some conversations that would be pretty hard to imagine that they were relevant to the case.

Mr. Edward Bennett Williams: I would readily concede Mr. Justice White that when counsel has access to the conversations that were illegally picked up as a result of this microphone surveillance on his client, he is going to find irrelevant materials but I say that only counsel and the petitioner can make that determination properly.

It cannot be made by the trial judge.

There is no way that the trial judge can make that kind of determination.

Now, I suggest that this problem was dealt with 18 years ago.

The exact problem was dealt with by the Second Circuit Court of Appeals speaking through Judge Learned hand in the United States against Kaplan.

It is in -- on all force with this case except that it had the additional factor of having national security overtones.

And in that instance where there was wiretapping, the trial judge had all of the materials turned over to him in camera and he of coursed released much of that material to the defendant and her counsel but he made an in camera determination that a large portion of it was irrelevant and he did that on the ground that the National Security was involved and that was the representation that was made to him by counsel for the Government.

That case went to the Circuit and of course it was overturned, it was reversed and the court found that there was error there of constitutional dimensions and the court reversed the case and sent it back for a retrial that never took place.

Now, that case to my knowledge and I say this without serious fear of contradiction has never been assailed buy the untied States Government in the eighteen years of its life.

It's been cited with approbation by this Court.

I have heard it distinguished many times but I have never heard it assails such as it has been in the Solicitor General's brief in this case because the Government now takes the position that the Second Circuit Court speaking through Judge Learned Hand decided the case of Kaplan against the United States erroneously.

I say if the Court please, that the root of the question post by the Government's motion is this, is it alright for the Government to say to one of its citizens even with the approbation of a federal district judge, we have had a faceless informer in your house furlough these many months and we have listened to you conversations and we have recorded those conversations and we have them in logs, in memoranda and records in our warehouse of stolen privacy but be of good cheer because we have examined them and we find nothing significant to this pending case so for the moment you are safe and so that you will continue to be safe we'll just keep all of these records and these memoranda and these logs but its better that you don't know what is in them.

I suggest to this Court that a Government that has began to wince at a full disclosure of the methods that it uses to prosecute and imprisoned its citizens is Government that has begun to loose its feel for freedom.

Justice Abe Fortas: Well, Mr. Williams, I hate to interrupt you but do I take it by our reference to U.S. against Kaplan that you see no way of making a distinction between the organized crime type of case that we see here and the National Security case?

Mr. Edward Bennett Williams: I believe Mr. Justice Fortas that I don't want to make suggestions with respect to how any member of the executive branch of Government who was charged with the security of this country fulfills his duties.

But I do say this to you, I don't think that we can mix the morals of the Cold War with the morality of the administration of criminal justice and I think if there comes a conflict between security and the rights of the individual then the Government should make an endow shaped typed decision.

It should determine whether or not it wants to make the necessary revelation to protect the Fourth Amendment rights of the citizen or whether it wants to dismiss this case.

And I add this I suggest that this is an in terrorem argument, it's a boogeyman because how can it ever compromise the security of the United States to return to someone his conversations which have been electronically eavesdropped on.

How in the name of reason can that be --

Justice Abe Fortas: Oh, it should on the basis of what you have said in those --

Mr. Edward Bennett Williams: How can that be violative --

Justice Abe Fortas: To extend the --

Mr. Edward Bennett Williams: -- to the security?

Justice Abe Fortas: -- your occupancy theory, you could certainly turnover to a story book kind of an international spy or --

Mr. Edward Bennett Williams: It takes up a very --

Justice Abe Fortas: -- the material that he wouldn't otherwise be aware of.

Mr. Edward Bennett Williams: Well, it would take a far more prolific imagination than I have to conjure up a situation where information picked up on an electronic eavesdropping device designed to catch a spy would give him information which he did not have access to in the first instance --

Justice Abe Fortas: Well, I think if you'd tried, you could imagine that.

Mr. Edward Bennett Williams: Well, I've tried since you began to post the question and I failed.

Print this transcript Transcript: 

Argument of William C. Sennett

Chief Justice Earl Warren: Number 1138, Roger A. Reynolds et al., Appellants versus Juanita Smith, et al.

Attorney General Sennett, you may continue with your argument.

Mr. William C. Sennett: Mr. Chief Justice, may it please the Court.

Yesterday, we had indicated what reasons underlined the determination of the Congress and the legislature, not only in Pennsylvania but of the other States to support this residence statute in public assistance cases.

First, that the residence requirement serves a sound physical purpose whereby the Commonwealth of Pennsylvania through its General Assembly can preserve the soundness of the program against unforeseen events.

Secondly, that it serves a predictive purpose and that is that operating within budgets has -- states must.

The Commonwealth is able better -- is better able to determine what amount of money will be needed in the following fiscal year for this program.

And thirdly, that is a policy decision.

The General Assembly of Pennsylvania can require some participation in the community before dispensing benefits because what we are discussing in this case is not contractual rights, I submit nor constitutional rights, nor obligations of the Commonwealth, but relief payments, welfare payments which are not based upon right, but upon the determination of the Congress and the General Assembly that the state should provide this.

And I direct the Court's attention to a long series of cases wherein this Court has upheld similar residency requirements.

First of all, in Drueding versus Devlin, this Court upheld the constitutionality of a Maryland statute which set a one year residency requirement on the right to vote which is certainly one of the most basic and fundamental rights which citizens in this country have.

Secondly, in Allied Stores versus Ohio, this Court upheld a classification in a tax statute.

The State of Ohio had imposed an ad valorem tax on merchandize and warehouses, and had excluded merchandize owned by non-residents.

And the Court said that the classification or distinction must rest of course on a ground that has a fair and substantial relation to the object of the legislation.

And that the classification, though discriminatory is not arbitrary nor does it violate the Equal Protection Clause if any state of facts could reasonably sustain it.

And further that the Court need not know exactly what the legislative purpose was.

And even in Carrington versus Rash in 1965, this Court again upheld the right of the state to impose a reasonable restriction on the right to vote.

And while striking down the particular tax statute because of the fact that it would not permit a member of the armed forces to obtain residency while he remain a member of the armed forces.

Nevertheless, the Court said, that all military could be required by the state to become residents of the community before the state would grant them the right to vote.

Justice Hugo L. Black: Do we have in any of those cases which you've mentioned the kind of joint ventures -- venture or joint partnership between the State and the Federal Government with reference to taking care if of the indigents?

I'm just thinking, what does that have to do with this case if --?

Mr. William C. Sennett: Well, Mr. Justice Black I think that there is this relation in the right to vote case whereas there are no joint statutory interest of the Federal Government and the State Government.

Nevertheless, there is a joint interest in the United States Government and the State Government to preserve the right to vote.

So the same interest of both governments would be present although not based upon the statute in that case.

Justice Hugo L. Black: But would one be wrong in thinking to whether the Government agrees to pay half of the cause of a matter of this kind so as to make all the states take care of these people that the Congress might have done a purpose to get away from these discrepancies such as you have here.

Mr. William C. Sennett: Well, the residency requirement is specifically authorized by the Congress.

Justice Hugo L. Black: That -- I wondered why you hadn't mentioned that?

Mr. William C. Sennett: The Congress in enacting the social security legislation, as specifically said that a state may impose a residency requirement for benefits.

Justice Hugo L. Black: Well, if that's true, why is that not given?

Why is that not the supreme law of the land?

Mr. William C. Sennett: I think it is.

I believe it is.

I believe the Congress has said that a residency requirement of up to one year is permissible.

The states have followed through in the medical assistance case, in the medical assistance statute that Congress has insisted upon no residency requirement.

Justice Hugo L. Black: Well, do you think this Court would be justified in invoking the Equal Protection Clause to defeat what Congress has declared to be its purpose?

Mr. William C. Sennett: Only if the particular type of classification is so arbitrary and so capricious that it could rest upon no reasonable ground.

As I submit is the situation --

Justice Hugo L. Black: Well, would that require us to hold that this action of Congress is so arbitrary and capricious?

Mr. William C. Sennett: I believe it would.

As I submit or the --

Justice Hugo L. Black: Oh, then -- you said we have more to overcome than --

Mr. William C. Sennett: I believe that --

Justice Hugo L. Black: -- and then argue.

Mr. William C. Sennett: I believe the Court has to genuinely meet the determination by the Congress in this case that a residency requirement is constitutional.

Justice Hugo L. Black: Do you have that exact language there before you?

Was it easy to read in the act of Congress?

Mr. William C. Sennett: I don't have it exactly before me now, Your Honor.

Chief Justice Earl Warren: Is it in briefs?

Mr. William C. Sennett: It is in the briefs.

Justice William J. Brennan: You said that --

Mr. William C. Sennett: Yes, Mr. Justice?

Justice William J. Brennan: Where do you find that?

Mr. William C. Sennett: In the enacting legislation, the Social Security --

Justice William J. Brennan: Is that on your brief?

Mr. William C. Sennett: Yes, I'm certain it is in the briefs, yes.

In two other cases which I wish to mention, the Court has likewise sustained this type of classification.

In McGowan versus Maryland, of course, the Maryland Sunday closing loss were sustained, even though those closing loss distinguished between different types of stores.

In Flemming versus Nestor, a requirement was sustained by this Court which deprived an alien deported of Social Security benefits.

And I submit that even the dissenting opinions in Flemming v. Nestor support the Commonwealth's argument in this particular case.

Because in Flemming v. Nestor in the dissenting opinions, the dissenting judges based their reasoning on the fact that Social Security benefits are contractual obligations.

Or secondly, that the action of the Congress in denying the benefits was in the nature of punishment or of a bill of attainder.

And at first --

Justice Abe Fortas: A federal statute doesn't appear in either brief here, does it?

You haven't set that out nor has your opponent from your brief.

Mr. William C. Sennett: It was my understanding Mr. Justice Fortas --

Justice Abe Fortas: It's in the briefs yesterday but I don't have them in the Court with me.

Now --

Mr. William C. Sennett: That we had cited the federal statute --

Justice Abe Fortas: I know you cited it but it's not set out --

Mr. William C. Sennett: Oh, it's not set forth, that is correct.

Yes, Sir.

Justice William J. Brennan: Do you recall the Section what the organization is where --

Mr. William C. Sennett: I recall only Mr. Justice Brennan that the intent of the federal statute is to the affect that residency requirements are allowed.

Justice William J. Brennan: Oh, you say you've take that?

Is there --

Mr. William C. Sennett: This --

Justice William J. Brennan: -- this phraseology?

Mr. William C. Sennett: There is language to that specific fact.

Justice William J. Brennan: But you didn't notice?

Mr. William C. Sennett: I'm sorry I don't have it in front of me at the present time.

Justice William J. Brennan: Yes.

Mr. William C. Sennett: Section -- in Section 1002 (b), any residency requirement which excludes any resident of the state who has resided therein five years during the nine years preceding the application and has resided therein continuously for one year immediately preceding the application.

Justice Abe Fortas: What statute is that?

That's not the --

Mr. William C. Sennett: Title I --

Justice Abe Fortas: -- federal security act, is it?

Mr. William C. Sennett: Title I, Section 2 -- Section 1002 (b) and Title XIV, Section 1402 (b).

Justice Abe Fortas: Of what?

Mr. William C. Sennett: Of the Social Security enabling legislation.

Justice William O. Douglas: You must have a different in set available to us.

Doesn't seem to be any 1400 in the series I have.

Mr. William C. Sennett: As I say, I don't have this particular section in front of me except what counsel has just handed me.

However, I think that the phraseology is clearly set forth and has resided therein continuously for one year immediately preceding the application.

Justice Abe Fortas: Well, the question is whether that language is an authorization language or whether it's a language of limitation.

And that's why it's important and that's a question in my mind that's why it's important to have a text of it, exact text of it.

I -- my recollection is that it maybe a language of limitation and not language of authorization by the states.

But there is no point in going into because -- until we get the text of that before us.

Mr. William C. Sennett: I believe that it does specifically.

I believe the Court will find that it does specifically authorize the states to enact residency requirements at up to one year.

Justice Hugo L. Black: On this theory, how did you -- have not used that what I tell you in your brief?

Mr. William C. Sennett: We do cite it in the brief.

Justice Hugo L. Black: I mean, how did you have not record it?

Mr. William C. Sennett: I'm not sure what the -- I'll admit that --

Justice Hugo L. Black: If it's as relevant as it seems.

Mr. William C. Sennett: I'll admit it should've.

It should've been included in the brief and cited and set forth in the brief the exact language.

I would reserve whatever time I have for rebuttal Mr. Chief Justice.

Chief Justice Earl Warren: Very well.

Mr. Gilhool.

Justice William J. Brennan: Are you going to cover this part Mr. Gilhool?

Argument of Thomas K. Gilhool

Mr. Thomas K. Gilhool: I certainly am Mr. Justice Brennan.

Good morning Mr. Chief Justice, may it please the Court.

The language of limitation to which counsel referred in this Social Security Act is set out on -- at Section 40 -- Section 602 (b) of Title VI with respect to (a) to dependent children and with respect to the other categories --

Chief Justice Earl Warren: Is that in any of the briefs?

Mr. Thomas K. Gilhool: No, sir.

It's in no brief submitted in this case.

I have however in front of me sir the rehearsal of this provision by the Department of the Health, Education and Welfare in their Federal Public Assistants handbook.

And if I may read Section 602 (b) as it relates to (a) to dependent children.

Justice Potter Stewart: Where is this in the United States Code?

Mr. Thomas K. Gilhool: Its 42 U.S. Code 602 (b), Mr. Justice.

Justice William J. Brennan: 602 (b)?

Mr. Thomas K. Gilhool: The administrator shall not approve any plan which imposes as condition of eligibility for aid to dependent children.

A residence requirement which denies aid with respect to any child residing in the state who has resided in the state for one year immediately preceding the application for such aid or who was born within that one year.

Justice Abe Fortas: Yes, I know, would you read that again please?

Mr. Thomas K. Gilhool: The administrator shall not approved --

Justice Abe Fortas: Not -- what if -- that's a Social Security administrator?

Mr. Thomas K. Gilhool: Yes, Sir.

Justice Abe Fortas: Federal Social Security administrator.

Mr. Thomas K. Gilhool: Yes, sir.

The Secretary --

Justice Abe Fortas: And says that he shall not approve any --

Mr. Thomas K. Gilhool: -- has have held of this.

Justice Abe Fortas: -- state plan.

Mr. Thomas K. Gilhool: The Social Security Act in its public assistant's title requires that state public assistance plans be submitted to the Secretary of Health, Education and Welfare now so named for approval before it will be funded by Federal Government.

Justice Abe Fortas: And this says, he shall not approve --

Mr. Thomas K. Gilhool: He shall not approve --

Justice Abe Fortas: -- any state plan -- go ahead.

Mr. Thomas K. Gilhool: He shall not approve any plan which imposes as a condition of eligibility for aid to dependent children.

A residence requirement which denies a -- with respect to any child residing in the states who has resided there for one year immediately preceding the application or in other words --

Justice Abe Fortas: So it says that he shall not deny -- approve a plan which denies a -- to any child who has resided there for more than one year.

Mr. Thomas K. Gilhool: Exactly Mr. Justice Fortas --

Justice Abe Fortas: And the question is whether --

Mr. Thomas K. Gilhool: This --

Justice Abe Fortas: -- the first initial threshold question is whether that is an authorization to the state or a limitation or something else.

Mr. Thomas K. Gilhool: It is clear I think from its language that it is a limitation and it is clearer from the legislative history of the provision that it is such.

Justice Hugo L. Black: It couldn't be a completed limitation, wouldn't it?

Mr. Thomas K. Gilhool: In --

Justice Hugo L. Black: Because it says that he shall approve it?

Mr. Thomas K. Gilhool: Surely it permits it Mr. Justice Black.

Justice Hugo L. Black: What?

Mr. Thomas K. Gilhool: It -- surely it permits a residence requirement of up to a year.

It does not --

Justice Hugo L. Black: Well --

Mr. Thomas K. Gilhool: It does not mandate a residence requirement above to a year --

Justice Byron R. White: Well, but -- that could be immediately preceding language to that in the Act, say, the Secretary shall approve any plan which fulfills the conditions specified to subsection (a) and then cuts out what you just indicated.

It says except, he shall not approve any plan which denies a -- to anyone who had lived there and at least a year.

So his order is to approve any plan except that if a plan has this provision and that he should not approve.

Mr. Thomas K. Gilhool: Exactly Mr. Justice White and in 1935 when this provision, this limitation was initially written, the legislative history will show that it was addressed to the following circumstances which existed among the states.

In 10 of those states where aid to dependent children programs had been funded entirely by the state, residence requirements of up to five years existed.

In 27 of the 28 states which in 1935 had their own old age pension plan, residence requirements ranging in 27 of those 28 states from 10 to 35 years existed.

It's very --

Justice William J. Brennan: Particular rules -- certainly this must mean the Secretary shall approve of the plan.

That's the language should be.

Mr. Thomas K. Gilhool: Except --

Justice William J. Brennan: It -- I know except but if the plan submitted has a residence requirement of less than a year is that the mandate of the statute that Secretary shall approves of the plan?

Mr. Thomas K. Gilhool: It certainly is Mr. Justice Brennan.

On the other hand --

Justice Hugo L. Black: Why didn't he have to approve the one in Connecticut then?

Mr. Thomas K. Gilhool: It was approved, Mr. Justice Black.

The Connecticut Public Assistance Plan with there carries one year limitation for aid to dependent children was approved.

From the very --

Justice William O. Douglas: Well, under the statute he have to approve it?

Mr. Thomas K. Gilhool: Yes, Mr. Justice Douglas.

Justice William J. Brennan: Don't they need to request to approve?

Mr. Thomas K. Gilhool: That's certainly so.

Justice William J. Brennan: But why is it -- was that true with the Pennsylvania plan?

Mr. Thomas K. Gilhool: It's true of all state plans for public assistance, Mr. Justice Brennan.

Justice William J. Brennan: Oh, I think no.

But my question was, has he in fact under this Section approved the Pennsylvania plan?

Mr. Thomas K. Gilhool: He certainly has, Mr. Justice Brennan.

That however does not in any sense resolve the constitutional question.

Justice Hugo L. Black: Why shouldn't it if the Congress has said that they have to be approved and he has approved them, why doesn't that settle the question?

Mr. Thomas K. Gilhool: It may Mr. Justice Black remove it from any fault under the Commerce Clause.

It however does not remove it from any faults under either the Equal Protection Clause of the Fourteenth Amendment --

Justice Hugo L. Black: Why wouldn't he remove it from all the faults unless you're going to say that some Constitution that Congress' passed, don't you have to discuss the constitutionality of the act of Congress?

Mr. Thomas K. Gilhool: No, I think not Mr. Justice Black because this is in no sense a mandate.

It is merely permission to the state --

Justice Hugo L. Black: That's -- it's a mandate to approve it and he's approved it.

Mr. Thomas K. Gilhool: But the Secretary of Health Education and Welfare Mr. Justice Black is not mandated to require that the states have a one year residence requirement.

Justice Hugo L. Black: That's not enough his mandated to approve it if they could.

That means the state has a right to do it and either if the Congress could give it to him.

Mr. Thomas K. Gilhool: It means that the state has not as a matter of commerce said that the state is barred from so doing.

Justice Hugo L. Black: Well, why does he limit it to commerce?

Why limit it commerce if the Constitution is a whole document?

Mr. Thomas K. Gilhool: It is indeed Mr. Justice Black a whole document.

And the -- in the Thompson and Shapiro case below when the involvement of 602 (b) in the case was certified to the Attorney General, the Attorney General chose not to appear in that case.

I can only assume, Your Honors, that the Attorney General sees no threat to this statute, 602 (b), the federal statute on constitutional grounds.

If state residence requirements are struck down as a matter of equal protection or on ground that the right to travel as a matter of liberty and due process, liberty protected by due process or as a matter of national privileges and immunities, 602 (b) will of course stand.

It will in a sense be nugatory.

It will stand giving the administrator permission to permit the states to have a one year residence requirement.

Justice Hugo L. Black: That permission to permit it but is not violated.

Mr. Thomas K. Gilhool: I know.

Justice Hugo L. Black: Now, that's your argument, isn't it?

Mr. Thomas K. Gilhool: If I'm forced to that, Mr. Justice Black.

And as I say I think this stands as a limitation on the power of the Secretary rather than mandate to him or to the state as to the residence requirement.

But if I am forced to address 602 (b) I would certainly assert that 602 (b) would have to fall before the Equal Protection Clause.

Chief Justice Earl Warren: Is it your opinion that the interpretation of the -- this statute by the director and by the State of Pennsylvania violates this Act that you have just read to us?

Mr. Thomas K. Gilhool: It is my opinion Mr. Justice Warren that the residence requirement statute of the Commonwealth of Pennsylvania does violate the Equal Protection Clause.

It does not violate --

Chief Justice Earl Warren: Oh, no, no, I'm not asking that.

Mr. Thomas K. Gilhool: I appreciate --

Chief Justice Earl Warren: Does it -- does it violate this Act that you've been dealing with?

Mr. Thomas K. Gilhool: No, it does not violate this Act.

Chief Justice Earl Warren: Then it is in conformity with this Act?

Mr. Thomas K. Gilhool: It is not required by this Act.

Chief Justice Earl Warren: No, I didn't ask you that.

Mr. Thomas K. Gilhool: But it is certainly not contrary to the Act, Mr. Chief Justice.

Chief Justice Earl Warren: It is in conformity then, isn't it?

Mr. Thomas K. Gilhool: It is not contrary to the Act, Mr. Chief Justice.

It is certainly inconformity in the very clear sense.

Justice William J. Brennan: Well, Mr. Gilhool, can you sustain your constitutional argument without addressing your -- that argument to this provision of the federal Act?

Mr. Thomas K. Gilhool: I think so, Mr. Justice Brennan.

Justice William J. Brennan: Why?

Mr. Thomas K. Gilhool: Simply because as I've indicated, 602 (b) does not seem to be at stake here.

602 (b) does not establish residence requirements.

It does not legislate residence requirements.

It merely permits the states so to do.

It is the act of the state, Pennsylvania and its 45 sister states and the various territories and districts of the United States that are in question here.

It is not the Act of Congress which is in question.

If the Acts of the state are struck, the Act of Congress 602 (b) --

Justice Abe Fortas: Well, as I understand it Mr. Gilhool --

Mr. Thomas K. Gilhool: -- would not be effected.

Justice Abe Fortas: As I understand it, what you are saying is that, your attack here is on state action.

You then have to meet the question whether that -- whether the specifics of your attack on state action are made academic or your points are answered by reason of the fact that the state action is within the scope of action, that Congress permitted by expressed legislation.

Mr. Thomas K. Gilhool: They don't --

Justice Abe Fortas: You've got those two problems to me.

One is this -- considering this only as a state action as an invalid state action.

Two, if it would otherwise be invalid state action, is that invalidity remove by reason of the fact that the Congress legislate it and recognized the permissibility of a one year residence requirement, isn't that right?

Mr. Thomas K. Gilhool: That's exactly right, Mr. Justice Fortas.

I am -- I would suppose that it is a very clear that if an Act of a state is contrary to the constitution even should Congress go so far as to say that we bless your state in so acting as it has not gone on here that Act would remain unconstitutional unless of course its initial unconstitutionality arose simply under the Commerce Clause.

That is not the case here.

We're dealing with matters of different constitutional order.

Justice Abe Fortas: Well, do you really think that Congress could pass a law authorizing the State of California for example to exclude migrants from persons coming in -- to come into the State of California from other states?

Or do you believe that Congress could pass a statute to authorize in the State of California to pass legislation like the legislation in Edwards against California?

Mr. Thomas K. Gilhool: I believe that Congress could not --

Justice Abe Fortas: And the Congress did so and that State action would be valid?

Mr. Thomas K. Gilhool: I believe that Congress could not pass that law, Mr. Justice Fortas --

Justice Abe Fortas: Well, then why do make this conception on --

Mr. Thomas K. Gilhool: -- not constitutionally.

Justice Abe Fortas: Why do you make this blanket concession with respect to the Commerce Clause?

Mr. Thomas K. Gilhool: Congress perhaps under the Commerce Clause Mr. Justice Fortas could authorize California so to do but Congress' action in authorizing for example in the Edwards statute would fall on -- among other grounds under the liberty of the Fifth Amendment due process on which Mr. Justice Harlan in United States versus Guest suggested that this Court had held the right to travel from state to state was protected.

It would fall as well --

Justice Abe Fortas: Well, he didn't do it so he have to take that position here?

Don't you have to take the position here for at least one of the positions which you have to take is that Congress cannot validly authorize the State of Pennsylvania or any other state to adopt legislation which has and whatever necessary degree as purpose or effect the chilling of the right of the people to travel from one state to another.

And then you've got the burden of demonstrating that this particular prohibition of Pennsylvania Law and plan fall -- would fall within that prohibition.

Mr. Thomas K. Gilhool: That certainly is my position here, Mr. Justice Fortas.

This Court has made it eminently clear that the right of which you speak does exist.

Connecticut --

Justice Hugo L. Black: That what right exist?

Mr. Thomas K. Gilhool: The right to travel freely from state to state.

Justice Hugo L. Black: On which provision of the Constitution?

Mr. Thomas K. Gilhool: The Court has not explicitly referred it to a particular provision of the Constitution.

Justice Hugo L. Black: Well, which one --

Mr. Thomas K. Gilhool: In --

Justice Hugo L. Black: -- would you refer to --

Mr. Thomas K. Gilhool: In Edwards versus --

Justice Hugo L. Black: -- knock out an Act of Congress in order to do it?

Mr. Thomas K. Gilhool: In Edwards versus California Mr. Justice Black, in an opinion written by Mr. Justice Douglas concurring it was rested -- in which you concurred it was rested on the privilege as an Immunity Clause of the Fourteenth Amendment.

As I indicated earlier, Mr. Justice Harlan has suggested that it rest upon the liberty of the Fifth Amendment.

It is variously otherwise been suggested in a large storage for example cited by the commonwealth just a little while ago.

In an opinion by Mr. Justice Brennan that in fact the Equal Protection Clause itself protects the essential constitutional purposes of comprising one nation from which of course the right freely to travel from state to state is drawn.

Justice Hugo L. Black: Do you mean a person has a right to travel whenever he desires from state to state that the constitution forbids anybody to regulate their traveling?

Is that what the case --

Mr. Thomas K. Gilhool: The case is Mr. Justice Black suggest that it is in no sense an absolute prohibition.

Justice Hugo L. Black: That is a reg -- it can be regulated then, doesn't it?

Mr. Thomas K. Gilhool: But not unreasonably, Mr. Justice Black and --

Justice Hugo L. Black: Not unreasonably, --

Mr. Thomas K. Gilhool: And --

Justice Hugo L. Black: -- you finally get back to unreasonably.

Mr. Thomas K. Gilhool: And --

Justice Hugo L. Black: And what does that mean in your vocabulary?

Mr. Thomas K. Gilhool: It means or in this context just what it means in the equal protection context.

That is in this case there is no permissible purpose to be discovered which the state might be pursuing by enacting the duration of residence requirement.

It means that the postulated purposes are in fact not served by the duration of residence requirement.

Justice Hugo L. Black: You mean that this Court has a right to strike down any statute which is number or majority of being to unreasonable in that judgment, does it?

Mr. Thomas K. Gilhool: No more, no less, Mr. Justice Black that it did --

Justice Hugo L. Black: That's what you've said, isn't it?

Mr. Thomas K. Gilhool: No --

Justice Hugo L. Black: That the constitution which is filled with expressed "thou shall" and "thou shall not".

Say in somewhere in its emanation the idea that this Court, the majority of this Court can at its will strike down any law as unconstitutional that if or a majority of its members think is unreasonable.

Mr. Thomas K. Gilhool: If it means that, Mr. Justice Black.

Justice Hugo L. Black: Is that what it means?

Mr. Thomas K. Gilhool: No more or no less than it did mean that in Edwards versus California.

Justice Hugo L. Black: Well I'm not talking about Edwards, I'm talking about -- you're talking about unreasonable statutes.

Mr. Thomas K. Gilhool: And --

Justice Hugo L. Black: Do you think this Court has that power under the Constitution?

Mr. Thomas K. Gilhool: Certainly, I must concede Mr. Justice Black that the right to travel rest upon no express provision of the Constitution.

This Court has on other occasions particularly where it is clear from --

Justice William O. Douglas: Of course, the majority in the Court that Edwards put it on the Commerce Clause.

Mr. Thomas K. Gilhool: Yes, Mr. Justice Douglas.

However in Guest, it was the dissenting opinions -- excuse me, the concurring opinions resting it upon privileges and immunities which were cited in the opinion of the Court in a fashion that suggest that the concurring opinions have been adopted --

Justice Potter Stewart: My difficulty with the -- my difficulty was that Mr. Gilhool was -- my difficulties are two.

Insofar as it rests on a Privileges and Immunities Clause, the Fourteenth Amendment only prohibits state interference with privileges and immunities, not congressional, federal congressional interference.

Fourteenth Amendment is directed to this -- only to the individual states not to this Act of Congress or any other Act of Congress.

And insofar as it rest on the Commerce Clause, it rested there because the states do not have power to regulate Interstate Commerce.

But again the Congress explicitly does have that such power and has enacted this legislation.

Now, perhaps you're suggesting that this -- the right to travel rests on Article IV, Section 2 of the Constitution, are you?

Mr. Thomas K. Gilhool: That's -- that is certainly one source to which this Court has looked.

Justice Potter Stewart: Well, how do you --

Mr. Thomas K. Gilhool: And from --

Justice Potter Stewart: Do you submit?

Mr. Thomas K. Gilhool: Yes, I do submit that.

Indeed, we can go back to Mr. Justice Washington in the very early case of Corfield and Coryell reflecting the thoughts that that were common at the time we moved from an article of confederation to a constitution.

Mr. Justice Washington there wrote with reference to Article IV Section 2 that surely the right to move from state to state and settle is protected by that clause.

Justice Potter Stewart: But certainly, you would acknowledge I should suppose that Congress has some power to regulate interstate commerce even of people?

Mr. Thomas K. Gilhool: Certainly, Mr. Justice, certainly.

I think it's important to note that it is not just the right to travel freely from state to state and to settle that is implicated by the durational residence requirement.

But in a real sense it is also the freedom to associate.

It is clear on this record that these particular plaintiffs came to Pennsylvania to be near their families.

It is clear from this record that 60% of the applicants for public assistance who are rejected because of the durational residence requirement had come to Pennsylvania for similar reasons.

I have argued in brief that the public assistance statute and the statute shared among all of the state's territories and districts of the United States rehearse as its purposes in rather universal virtually verbatim language.

All of these statutes make it very clear that the purpose of public assistance is to enable citizens to maintain themselves, to enable citizens particularly in ADC Program, to enjoy those familial liberties with respect to children and the power and rights and duty to raise them that are shared by other citizens.

And to enjoy the independents that are shared -- that is shared by other citizens.

As each Court that has looked at this statute and some 27 judges below have carefully considered this statute and have found of those 27, 23 that this statute has no justification before an equal protection challenge.

Each of the judges below in the opinions that are before the Court found that the clearly stated purposes of public assistance are not served by this durational residence requirement but rather are flaunted as clearly as can be by this durational residence requirement.

On any traditional test of equal protection then I suppose that nothing is clearer than that the classification invoked here, there is no reasonable relationship to the purposes of this Public Assistance Act in which it is found.

Justice Hugo L. Black: Why do you suppose Congress thought of this?

Mr. Thomas K. Gilhool: Mr. Justice Black, as I attempted to argue earlier, it is clear from the legislative history of 602 (b) that Congress in no sense made a judgment that this would be a fair thing to do.

Congress was faced with a historic condition in which 27 of the 28 states who have old age pensions had residence requirements ranging from 10 to 25 years.

Congress has the legislative history indicates acted to address that extraordinary unfairness as the legislative history indicates that Congress apprehended it to be.

The regulations of the Department of Health, Education and Welfare promulgated pursuant to that statute.

And initially of course by the Social Security Administration have from the very beginning on the basis of that legislative history recommended to states that residence requirements be eliminated.

I think it is without question clear that as that on the matter of fairness, Congress was moving in the direction of eliminating residence requirements.

They felt able at that historic moment to move against the large evils that faced them then --

Justice Potter Stewart: This case involves only --

Mr. Thomas K. Gilhool: -- at the place of limitation.

Justice Potter Stewart: Excuse me.

Excuse me, I'm sorry.

Mr. Thomas K. Gilhool: Please Mr. Justice.

Justice Potter Stewart: This case -- do I understand correctly involves only that the kind of welfare that is Aid to Dependent Children, is that what's on your case?

Mr. Thomas K. Gilhool: No, Mr. Justice Stewart.

This was a class action below.

The class was determined to be all citizens of Pennsylvania, citizens of United States, and residence of Pennsylvania without regard to category each of the five public assistance categories.

She were refused assistance solely because of the residence requirement.

Justice Potter Stewart: Well, now --

Mr. Thomas K. Gilhool: The named plaintiffs as you suggest.

Justice Potter Stewart: 42 United States Code Section 602 (b) applies only to legislate -- welfare -- dealing with dependent children, doesn't it?

Mr. Thomas K. Gilhool: The 2 (b) series of the other Titles of the Public Assistance --

Justice Potter Stewart: Are the same?

Mr. Thomas K. Gilhool: -- Section, they are not the same as to year.

They do not place a one year limitation.

They place a limitation substantially as follows.

Five -- the state may exact no residence requirement greater than five out of the nine preceding years and one year continuous residence.

Justice Potter Stewart: So, with respect to each kind of welfare program.

Except I think we were told medical assistance the Federal Congress has authorized federal participation and required in fact the Secretary to approve the state plan that does not exceed a certain specified residence requirement, is that right?

This is not in other words confined to dependent children?

Mr. Thomas K. Gilhool: No, it's not.

Justice Potter Stewart: It's applicable to all kinds of welfare plans.

Here involved in this cases, there are maybe some other exotic ones we're doing -- we're not talking about all welfare plans except I think we were told medical assistance, is that right?

Mr. Thomas K. Gilhool: That's right Mr. Justice Stewart.

Chief Justice Earl Warren: And would your argument leads you to the conclusion that all of those are unconstitutional?

Mr. Thomas K. Gilhool: Yes, Mr. Chief Justice.

Our argument goes to each of the categories of public assistance.

And we urge that they are unconstitutional as a matter of equal protection common --

Chief Justice Earl Warren: Would you think that the purpose of Congress in fixing these different provisions as for residence would be the same in all cases?

Why -- for instance, why would they say not more than one year is applied to this category and have another kind of -- other provision as to residence for old age assistance?

Mr. Thomas K. Gilhool: Partly -- no doubt Mr. Chief Justice that reflects the history that the Congress faced in 1935.

Certainly as you suggest that differential residence requirement as between the categories, is not supported by any of the purposes that the states in the Commonwealth had advanced here.

For example, they have argued to the necessity of a residence requirement for budget predictability.

They have argued annual budgets.

And yet if one turns to other categories than AFDC, we are not talking about an annual residence requirement but about five out of nine years.

With the permission of the Court, I should like to address to perhaps three of the discreet observations offered by counsel for the commonwealth.

They speak of the importance and offer as constitutional justification for this statute of the necessity of some prior investments for participation in the community.

In this case as with budget predictability and the postulation of fraud and otherwise, the facts which are very clear on the record below of the nature of the public assistance program and who it is that receives it indicate that this residence requirement just doesn't do that.

It just doesn't measure or exact prior investment or participation.

40% of the persons rejected under the durational residence requirement had lived in Pennsylvania prior to this application, prior to their return to the state.

60% had returned to join relatives who have lived there.

Half had already lived in the state for six months.

Counsel for the Commonwealth called the Court's attention to the fact that Pennsylvania has reciprocal agreements with 18 other states and as to residence of Pennsylvania who have come from those states will grant assistance immediately without respect to the length of their residence in Pennsylvania.

In that case, they are not concerned with measuring prior investment.

They are not concerned indeed with budget predictability.

I suggest that the statute just doesn't measure prior investment or participation.

It is sought to the classification that makes no sense.

More fundamental perhaps, prior investment and participation is just not what the statute is all about.

The Social Insurance Titles and the Social Security Act were about that.

The public assistance titles were created explicitly to grant assistance to those citizens who would not find recourse in social insurance who had not been able to make that kind of prior investment.

Its very purpose as to the language of public assistance title federally and across the states indicates years to enable citizens to participate, to enable them to invest.

I'm reminded at the close of what has been a lengthy the argument on this durational residence requirement of something that Lord Acton said, “The law should be adapted to the benefit of those who have the heaviest stake in the country for whom misgovernment means not stinted luxuries or mortified pride but want and pain, and degradation, and risk to their own lives and to their children's souls”.

Mr. Justice Marshall and Mr. Justice White yesterday pursued with counsel for Connecticut the States burden to explain this statute.

We have argued in brief and would argue here in closing that this statute derived as it is from Elizabeth virtually unchanged from that day.

This statute resting as it does on asserted purposes that records below have again and again indicated not to be born out by the facts.

That this legislation which is a response to myth and to fiction and to fear and to hostility.

That this legislation is not legislation upon which the political process he's operate.

That the poor do not have the power and public assistance recipients particularly do not have the political standing or the political muscle to seek recourse in the legislature as generally we turn to the legislature for protection of rights such as these.

This Court, I therefore submit must carefully scrutinize the statute and I heard it's fine yet unconstitutional for the reasons stated.

Thank you.

Chief Justice Earl Warren: Attorney General Sennett.

Rebuttal of William C. Sennett

Mr. William C. Sennett: Mr. Chief Justice, may it please the Court.

I believe that the argument in this case over the period for the last several hours has demonstrated clearly and unequivocally what it is that appellees would have this Court do.

And that is substitute its judgment in this matter for the combined judgments of the Congress and the state legislatures of some 46 states because we do not agree.

They argue that residence who have not lived here for a certain period of time should be deprived of this particular type of benefit.

And I suggest to the Court that it has long been the established rule of this Court that you will not substitute your judgment in this area for that of the Congress and state legislature.

And finally, I would submit as the court below found in this case that there is no impairment of the right to travel by this requirement.

Thank you.