EVANS v. CORNMAN
Legal provision: Equal Protection
Argument of Robert F. Sweeney
Chief Justice Warren E. Burger: Number 236, Evans against Tillye Cornman and others.
Mr. Sweeney, you may proceed whenever you’re ready.
Mr. Robert F. Sweeney: Mr. Chief Justice and may it please the Court.
It is not without some regret that the State of Maryland arises this morning as the appellant in this case because we are not without sympathy for the plight in which the appellees have found themselves.
They are citizens of the United States of America.
They reside within the geographical boundaries of the State of Maryland.
They pay certain taxes to the State of Maryland and most understandably, they are desirous of having the right to vote.
I might also say that where there’s a matter of personal discretion, for the Attorney General of Maryland before the Governor of Maryland with whom I have discussed this, we, out of sympathy will extend that right to vote to them.
But we also submit to the Court, that in a government of laws and not of men, that this question is one that should not and cannot be decided out of sympathy for the plaintiffs or the appellees’ position but it is a question to which the laws of the United States, the Constitution of the United States and the laws of Maryland must be applied and a decision rendered after consideration of those laws.
I further suggest to the Court that the opinion of the District Court below, a District Court which we believe is one of the finest District Courts in the United States, notwithstanding its occasional err as in the instant case.
That the opinion of the District Court below was decided from an overabundance of sympathy for the plaintiffs and that that opinion, we respectfully submit is mistaken in fact and erroneous in law.
At the outset, let me state that appellants and appellees alike concede that the land in question here is that over which the Government of the United States has exclusive legislative jurisdiction.
It was not the policy of the State of Maryland in ceding jurisdiction to the federal government on any of the many federal reservations scattered throughout our state to reserve to ourselves concurrent jurisdiction, except that reservation which has become almost standard, the reservation as to serving process.
The question as to whether or not a resident of a federal enclave over which the United States exercised exclusive legislative jurisdiction, whether those individuals were entitled to vote was considered by the Court of Appeals of Maryland as recently as 1963 when some residents of the Perry Point Naval Hospital in Cecil County in Maryland applied for the right to register, were refused that right and appealed to the court.
In the Court of Appeals decision in that case, Royer versus the Board of Election Supervisors, the Maryland Court of Appeals, carefully considered the long line of cases in which the courts throughout this nation have considered this same question and after consideration of those cases and after review of what we believe to be the pertinent federal law on this question concluded that these individuals residing on these reservations were not in fact residents of the state of Maryland.
It appears to us from our study of the law that dating from almost -- from 1811 down to as recently as six months ago in New Mexico, the courts throughout the United States have held that persons residing on federal reservations over which there is exclusive legislative jurisdiction vested in the Congress by virtue of Article I, Section 8, Clause 17 of the Constitution, those persons are not residents of the state.
They are not -- do not have the same political right as to the residents of the state which surrounds them and that the sovereignty and the authority and the dominion of those states, of the state surrounding these reservations does not exist over the individuals residing therein.
In this long line of cases considered by the courts throughout the country, there are but three representing a minority view or there were but three representing a minority view until the decision of the District Court.
Two of those three are not really applicable to the case at hand because one of those involved a state which had reserved to itself concurrent jurisdiction.
Another involved a state which -- a state statute and only one, the decision of the -- an Intermediate Court of Appeals in California followed the line of reasoning which was adopted by the District Court in this case.
May it please the Court, the arguments which we present today would appear to be, the first arguments addressed to this Court on this specific question, on the question of whether or not the residents of these enclaves must be granted the right to vote.
But the question itself is not a question of first impression to this Court.
It is not a question of which this Court has not taken notice on prior occasions.
Because the Court in surplus trading in 1930, in holding that certain blankets in the hands of a traitor on the federal reservation were not subject to state taxation.
This Court, set out at great length in this opinion and adopted, we believe the language of some of the state courts which had held and quoted the language of the state courts which had held that the residents of these federal enclaves were not entitled to vote, to be treated for voting purposes like the citizens of the states surrounding them.
The District Court decision from which we have appealed starts out by restating the premise that where the United States exercises this exclusive legislative jurisdiction over land within the state that the persons residing thereon are not, are not residents and need not be granted the vote.
Then having, we believe, correctly stated the law, the Court goes on to examine the so-called retrocession statutes, various statutes by which the Congress of the United States, from 1928 on, has purportedly retroceded to the states certain jurisdiction over the inhabitants of these reservations and the Court after review of these statutes then concludes that the United States in fact having retroceded its jurisdiction in what it says is all or substantially all of the important matters of state sovereignty and authority that this jurisdiction is not exclusively federal but is concurrent between the state and the federal government and it being concurrent to state, the District Court said is required to extend that most precious right of all, it says the right to vote to the petitioners.
We submit, Your Honor, first of all that an examination of these retrocession statutes will quickly reveal that they do not retrocede to the State of Maryland or to any other state the all or substantially all of the state sovereignty over these areas nor do they give to the state concurrent jurisdiction with the federal government in the important areas of sovereignty.
What do they do, quickly stated, one extends to the residents of these enclaves, the benefits and the detriments of the State of Maryland’s wrongful death statute.
Another extends to them the benefits and the detriments of our workmen's compensation laws and of our unemployment insurance laws, the two that seem to be a third dealt with the right of the state to tax the lessee’s interest in commercial properties, rented by the Government to entrepreneurs within the reservation.
The two retrocession statutes that were --
Justice Thurgood Marshall: How about state income and sales and gasoline taxes?
Mr. Robert F. Sweeney: I was just about to say, Mr. Justice Marshall that two that were of most interest to the District Court were the Buck Act and the Lee Act which gave to the states the right to exact income and sales taxes, that's the Buck Act and the Lea Act which gave to the states the right to levy taxes on motor fuel sold in the enclave.
These obviously were of great interest to the District Court and I submit to Your Honors, it is because of the application of the Buck Act and the application of the Lea Act that the District Court reached its conclusion.
The Buck Act gave to the State of Maryland the right to levy certain taxes on the residents of these enclaves.
It gave the state the right to levy income taxes and it gave the state the right to levy sales and use taxes.
Further, the District Court noted that although the State of Maryland has absolutely no jurisdiction of any kind to try one situated in a federal reservation for any crime, any criminal violation of the state law, the District Court noted that the Congress had enacted as long ago as 1825 the Assimilative Crimes Act and the Court says then, this substantially means that the state criminal laws are enforced on the reservation and it was really because of these, because we exact income and sales taxes and because of the Assimilative Crimes Act that I believe the District Court found that we had all or substantially all of the sovereignty over these individuals as we do our residents of the state.
And it is in this, Mr. Justice Marshall that we say that the Court has been mistaken in the facts.
First of all, I think this Court can take judicial notice of the fact that the income taxes and the sales taxes of any state are levied for the purpose of providing the moneys which are used for such public projects as highways, schools, colleges, libraries and we believe that enacting the Buck Act, giving us the right to impose sales and income taxes on these residents, the Congress of the United States was merely saying to the State of Maryland and to the other states that we recognize that these individuals who were employed by us within the geographical borders of your states are utilizing certain state services and we recognize the inequity of your proving these services for them without any return on your part and so we believe, Your Honors, that the passage of the Buck Act was merely an exercise in congressional equity giving to the state that which the state was already entitled from the services which we supply to the appellees and I might also point out, as the District Court did not, that when the Congress of the United States enacted the Buck Act, they appended to that Act a phrase which said, that nothing contained herein shall be held to have surrendered the exclusive legislative jurisdiction that the Congress of the United States exercises under Article I, Section 8 over the lands here in question.
I believe that this, may it please the Court, is strongly persuasive of the fact that the District Court erred when it held to the contrary.
Justice John M. Harlan: May I ask you a question Mr. Attorney General.
Mr. Robert F. Sweeney: Yes, Mr. Justice Harlan.
Justice John M. Harlan: I suppose the foundation of this constitutional challenge is the Equal Protection Clause, isn't it?
Mr. Robert F. Sweeney: Yes.
Justice John M. Harlan: How would you describe the state interest, what state interest is being served in making this distinction between those on the enclave who are otherwise residents of the enclave and others?
What is the state interest?
Mr. Robert F. Sweeney: The state's interest in this cause is this --
Justice John Paul Stevens: Well, you've got it in the law, you have it on your books, I know but you have to defend it in terms of some kind of a rational or some kind of an Equal Protection --
Mr. Robert F. Sweeney: The simple fact that it is unjust and discriminatory to the other citizens of Maryland, those who reside within our geographical borders but off the reservation.
It is unjust to them to extend, for us to extend the vote to persons living on the reservation over whom we have absolutely no sovereignty, over whom we have absolutely no authority and no dominion, accepting that authority and sovereignty granted to us which we hold at the sufferance of another sovereign.
We can do absolutely nothing on this reservation and that's the interest, the state interest in this question.
Are we to be required by the District Court or by the courts of the United States to give the right to vote to people who are completely immune from a state criminal prosecution of any kind while on the land on which they reside?
The Assimilative Crimes Act that my brother in his brief says as the District Court, that substantially the same end is achieved, that the federal government, under the Act of 1825 and as amended will enforce on the reservation the laws of the state and we say that there is a material difference between having the laws of the State of Maryland enforced on that reservation by the United States attorney, that first of all, it means that the State of Maryland does not decide whom it shall prosecute.
A state prosecuting officer does not decide, shall I now process this case.
Shall I step --
Justice Thurgood Marshall: And the state does not pay the expense of a prosecution or a court or a jury or a prosecutor or a policeman?
Mr. Robert F. Sweeney: Beyond question but these are the burdens of sovereignty.
Justice Thurgood Marshall: As to the people themselves, not the government.
But as to the residents on it, with exception of not paying real property taxes, what else is that they don't have to do for the state, that every other citizen does?
Mr. Robert F. Sweeney: In the traditional phrase, thank you for asking that question, Mr. Justice Marshall.
We believe that an examination of the laws of Maryland will reveal that there are substantial burdens which are carried by the people of Maryland from which the defendants, from which the appellees are exempted.
First of all and this Court will know as students of the law and as men versed in government, that a substantial body of law of every government is contained in the regulations and rules of the governmental agencies aside from that which appears on the statute books.
The persons living on federal reservations within the State of Maryland are totally and completely exempt from the regulatory authority of the 220 various agencies, boards and commissions of state government and from an unknown number of county governments in the county or municipal governments in the county in which they are situation.
Now, are these mere words or are these matters of substance?
Let me, if I may point out several instances which I believe will show that this is a question of substance.
Chief Justice Warren E. Burger: I thought this is a good point to terminate.
We are going to take a recess until an indefinite time after lunch.
Mr. Robert F. Sweeney: Thank you, Your Honor.
Chief Justice Warren E. Burger: Mr. Sweeney, you may pick up where you left off.
Mr. Robert F. Sweeney: May it please the Court.
Just prior to luncheon recess, Mr. Justice Marshall had asked me what authority the state could not exercise over the residents of federal enclaves.
Just to hit the highlights of some of that authority, I mentioned that they are completely exempt from the regulatory authority of the 220 odd boards, agencies and commissions of the state and of all similar county agencies which means that for example the State of Maryland is completely without power to enforce within the boundaries of the federal enclave the liquor control statutes of the state or of the county.
The State of Maryland is completely without authority to enforce within the confines of the enclave such state health department regulations as those which require compulsory vaccination obviously of paramount concern to the health of all in the vicinity, on or off the enclave.
The doctors who practice their profession on the National Institute of Health and the attorneys who practice there are free to do so without being required to subject themselves for licensing or examination by the State Board of Medical Examiners or by the State Board of Law Examiners and are not subject to the authority of the lawyers for example, not subject to the rules and procedure laid down by the Maryland Court of Appeals.
Justice Byron R. White: So there's a lawyer, are there any lawyers on the enclave that is practicing law, just taking drop-in clients from the public --
Mr. Robert F. Sweeney: I am aware of none, Mr. Justice White.
Justice Byron R. White: They're all employees of the Government aren't they?
Mr. Robert F. Sweeney: Yes, they are sir and I mentioned these merely to show that these are the areas over which we have no authority.
We have no dominion, not that these specific instances operate to the --
Justice Byron R. White: What if it were a crime to practice law without a license in Maryland and someone on the federal enclave was permitted by the federal government to open a law office there and just engage in practice, would you say that Maryland couldn’t stop him?
Mr. Robert F. Sweeney: I say this, Mr. Justice White, that there is a total absence of authority for the proposition that the federal government may prosecute on a federal reservation under the Assimilative Crimes Act for violation of a state regulation even with that regulatory measure has criminal sanction attached to it.
So in the instance that you gave, perhaps, it would fall within the area of a substantial crime but in the great majority of regulatory measures, even though our statutes might provide that violations of any of the regulations of the Health Department or the Department of Natural Resources amount to a misdemeanor, if it is in fact a regulatory agency and I am citing the interdepartmental report on the status of federal enclaves, there is absolutely no authority for the proposition that the federal government may prosecute under the Assimilative Crimes Act.
Justice Byron R. White: Because there are a lot of legislative acts of the legislature of Maryland that have to be obeyed on the enclave?
Mr. Robert F. Sweeney: You mean those, yes, under the act, under the Crimes Act.
Justice Byron R. White: Yes, so you do have some legislative authority over the residents of the enclave?
Mr. Robert F. Sweeney: Beyond dispute and I think I --
Justice Byron R. White: And quite a few enclaves, as a matter of facts, have quite a few powers over the residents so as a pure thought that you say the federal government has exclusive jurisdiction even though they’ve ceded a good deal of it back to the state?
Mr. Robert F. Sweeney: We say that -- I'm sorry, go ahead sir.
Justice Byron R. White: Do you say that because you think the federal government could take it back?
Mr. Robert F. Sweeney: I think that again there is a question of law that to which there is no answer at this time.
Justice Byron R. White: But assume they could take it back, nevertheless at the present time that federal government is not exercising exclusive legislative authority over the enclave.
Mr. Robert F. Sweeney: We say that they are, that the only authority --
Justice Byron R. White: How can it be exclusive if several, if substantial blocks of the Maryland laws apply to enclave residents?
Mr. Robert F. Sweeney: Because one, Article I, Section 8 says it’s exclusive and two, that which we exercise, we exercise by virtue of the federal congressional enactment.
We are exercising their powers and not our own.
In that sense, it is not concurrent so it's a question of semantics but the powers we exercise are saved by their sufferance.
Justice Byron R. White: But when you, now, one passes or amends its murder statutes or its burglary statute or something else, that applies to enclave residents.
Mr. Robert F. Sweeney: It does, under the Assimilative Crimes Act.
Unless there is a similar federal statute and if there is a similar federal statute, then that prevails or unless the state criminal statute is contrary to the public policy of the United States.
Justice Byron R. White: And whenever you raise your sales tax, enclave residents pay it.
Mr. Robert F. Sweeney: Yes, they do.
But again as I've mentioned earlier, that in our position is merely in return for the services which we provide and with mention of sales taxes, let me make one --
Justice Hugo L. Black: How many voters are there?
Mr. Robert F. Sweeney: I'm sorry sir?
Justice Hugo L. Black: How many voters in that enclave?
Mr. Robert F. Sweeney: In this particular enclave, perhaps my brother could tell you, Mr. Justice Black.
Justice Hugo L. Black: You know by how many?
Justice Hugo L. Black: 38.
Mr. Robert F. Sweeney: 38, my brother says.
Justice Hugo L. Black: Are there any other enclaves like that in Maryland?
Mr. Robert F. Sweeney: Oh!
Yes, sir, there are many.
Perry Point Naval Hospital I mentioned earlier and there are the military establishments, the military residents of which are --
Justice Hugo L. Black: How is the state really being injured?
Mr. Robert F. Sweeney: I beg your pardon, sir?
Justice Hugo L. Black: I'm trying to see what this fight is really about.
Mr. Robert F. Sweeney: The state’s being injured in that we are being required to extend the vote in the State of Maryland to persons living on an area over which we do not have sovereignty.
Justice Hugo L. Black: Is that the only theoretical injury?
Mr. Robert F. Sweeney: Yes, it is and that is the only theoretical injury but I think it is more than theory.
To me, it's a basic and fundamental --
Justice Hugo L. Black: Why is it?
Why is it more than theory?
Mr. Robert F. Sweeney: Because --
Justice Hugo L. Black: Do they trade over in Maryland any?
Do you know?
Mr. Robert F. Sweeney: I would assume that they do.
Justice Hugo L. Black: Buy most of the goods over there, groceries and so forth?
Mr. Robert F. Sweeney: Well, in some cases yes, on some of the military establishments, of course they would buy from post exchanges and also on the military base itself.
Justice Hugo L. Black: But they live on the enclave?
Mr. Robert F. Sweeney: They live on the enclave.
Justice Hugo L. Black: Have residences?
Mr. Robert F. Sweeney: Yes, sir.
Now as this question of taxation, may it please the Court and it is yes, it is certainly the Buck Act which led the District Court to its conclusion in this case.
Their theory being, you would levy income taxes on them and sales tax that substantially what you take from other citizens, we're going to make you give them this right.
And I say --
Justice Hugo L. Black: Can you collect income tax from them?
Mr. Robert F. Sweeney: Yes, sir.
Justice Hugo L. Black: Income tax and sales tax?
Mr. Robert F. Sweeney: Yes, sir by virtue of the Buck Act.
Justice Hugo L. Black: I'm trying to figure out where really Maryland is injured.
It seems to me like this is, if I may be permitted to say it's much ado about nothing.
Mr. Robert F. Sweeney: In number, yes.
In principle, may it please the Court, our position is that we're in substantially the same position as if the District Court had said to us, you must give the right to vote to aliens who are resident in Maryland and who pay income tax.
Justice Hugo L. Black: Well, there are not quite like aliens are they?
Mr. Robert F. Sweeney: I understand that they're not but they're alien to Maryland by a long line of holdings of the state courts and by approval of this Court or by citation of this Court in Surplus and other cases.
They are alien to Maryland and that they are not residents of Maryland.
Justice Hugo L. Black: I don't suppose you forbid them to trade in Maryland?
Mr. Robert F. Sweeney: We do not sir.
Justice Byron R. White: Tell me Mr. Sweeney, is the Buck Act something that makes this Maryland sales tax like federal law?
Mr. Robert F. Sweeney: No, what the Buck Act does is say to Maryland, you can collect taxes from them, these specific taxes, not all taxes, these specific taxes.
It concludes as I mentioned earlier by saying this is not to be taken as the termination of exclusive federal jurisdiction therein.
It's permitting us to --
Justice Byron R. White: I know but is it -- I'm familiar with the idea that it may have a federal law but what it is, is borrowed a state law.
What I'm trying to get at, are you arguing that all of these Maryland laws that apply in the enclave are really borrowed federal law?
Mr. Robert F. Sweeney: I'm saying that we exercise all of them only at the sufferance of the federal context.
Justice Byron R. White: Well, I take it you ought to be making the same argument if the federal government said to you, you may collect all -- you may apply all of your laws on this enclave and you may collect property taxes.
Mr. Robert F. Sweeney: No, sir.
I would not make the same argument.
Justice Byron R. White: But why not?
It would still be exclusive federal jurisdiction.
Mr. Robert F. Sweeney: No sir, I'm sorry.
Then we -- our suggested solution to this is the passage by the Congress of a Bill such as was introduced first under President Eisenhower and has been considered by a succession of Congresses which would retrocede to the state all of the jurisdiction on these areas, all of it which the federal government does not need for the specific purpose for which they are utilizing these premises.
Then, then we say we will have concurrent jurisdiction, not exclusive but concurrent and if it is in fact, truly concurrent, then I think under the weight of the cases throughout the United States, they would be entitled to the franchise.
But not here, not where we are not free to apply our administrative law, not where we are not free to elect for ourselves will we prosecute or will we forebear prosecution.
Let me, because I do not wan t--
Justice Hugo L. Black: How large is this enclave?
Mr. Robert F. Sweeney: In size?
Justice William O. Douglas: The record says 317 acres.
Mr. Robert F. Sweeney: Thank you, Mr. Justice Douglas.
Justice John M. Harlan: Are there people working on the enclave who reside outside of the enclave?
Mr. Robert F. Sweeney: Yes, sir.
Justice John M. Harlan: And those people can vote?
Mr. Robert F. Sweeney: Beyond question.
They are fully in every sense citizens.
Justice John M. Harlan: Is there any requirement with respect to those living on the enclave which requires them to live there and they wish to vote?
Mr. Robert F. Sweeney: I know of none, Mr. Justice Harlan and it's a point that I wanted to make.
With all due respect to these individual plaintiffs, they have opted to remove themselves from Maryland’s jurisdiction.
They live there by their choice and I --
Justice Hugo L. Black: I guess that is why they give them that building -- they have to pay rent.
Mr. Robert F. Sweeney: Yes, sir, they have I am sure comfortable and desirable quarters, have reasonable rentals close to their place of employment.
The people who work at the next laboratory desk next to them, however and who don't have those same quarters live off the reservation and are subject to all of Maryland’s authority and to those, we have freely given every incidence of citizenship.
May I say a word about the question of property taxes?
Again because the District Court and because this Court obviously is so interested in the question of taxation, that we do not and cannot collect property taxes from these individuals on this.
Under no circumstances could we assume the federal government retains title to it.
Justice Byron R. White: There isn't any, there probably is not privately owned real property in it anyway, so having the right to collect property taxes wouldn’t --
Mr. Robert F. Sweeney: No, sir.
I fully understand it.
But the District Court makes much of the fact that we collect income tax on these residents and if we collect sales tax from it, it says therefore they pay their cost of government and they are in substantially the same position as one who lives off the reservation.
They even go on to cite in there that although they don't pay the county taxes which are primarily real estate taxes that the federal government through the impacted areas school assistance program makes up the deficit through impacted area funds.
I would like the Court to --
Chief Justice Warren E. Burger: Counsel, your time is up.
Mr. Robert F. Sweeney: Thank you very much Mr. Chief Justice.
Chief Justice Warren E. Burger: Mr. Schifter?
Argument of Richard Schifter
Mr. Richard Schifter: Mr. Chief Justice and may it please the Court.
The basic issue as focused on very early in the argument by Justice Harlan is the contention of the plaintiffs that the action of the State of Maryland in classifying these plaintiffs as nonresidents of the state constitutes an arbitrary unreasonable classification in violation of the Equal Protection Clause.
Justice Thurgood Marshall: Is that the provision of the Constitution you are resting your case on?
Mr. Richard Schifter: That's right, Your Honor.
Justice Thurgood Marshall: Equal Protection?
Mr. Richard Schifter: Equal Protection.
Justice Hugo L. Black: Or something might turn on what tests the equal protection use.
Is it the conventional or rationality test?
If it's the compelling interest test, which the argument in this Court has held flatly complies in voting cases, this case is --
Mr. Richard Schifter: I believe, Your Honor that we can assert our right on both tests and in that connection, I would like to point us that it might be usable for us to focus on the specific facts surrounding the acquisition of exclusive jurisdiction by the United States over the track of an issue here.
The track in which we are dealing is a track lying in Montgomery County to which the United States acquired title in the 1930s and then built national institutes of health on them.
The plaintiffs in this case moved on to the track in the 1940s, became registered voters, some around 1950 and later.
Others moved onto the track in the 1950s.
It was only in 1953 that the legislature of the State of Maryland ceded jurisdiction and thus created the exclusive jurisdiction right of the United States to this area under the Forts and Dock-yards Clause of the Constitution.
Justice Hugo L. Black: When was the date, 1940?
Mr. Richard Schifter: 1953.
Justice Hugo L. Black: That's the first time that it occurred?
Mr. Richard Schifter: That's right Your Honor.
Justice Hugo L. Black: What?
Mr. Richard Schifter: That's right, Mr. Justice Black.
What happened here was the United States first acquired title and only years later in 1953, did the State of Maryland cede jurisdiction and thus vest in the United States the exclusive jurisdiction claim under Clause 17, Section 8, Article I.
Justice Hugo L. Black: Was there any objection raised by Maryland, the State of Maryland?
Mr. Richard Schifter: No, it did not.
The State of Maryland, in 1953 ceded jurisdiction.
Justice Hugo L. Black: Voluntarily?
Mr. Richard Schifter: Yes, voluntarily.
Justice John M. Harlan: Do you think that the Congress of the United States to pass the law?
Giving to people the right to vote in federal --
Mr. Richard Schifter: Yes, Your Honor, the United States can do that.
The contention of the state --
Justice Hugo L. Black: Why wouldn't that be enough?
Mr. Richard Schifter: I beg your pardon?
Justice Hugo L. Black: Why wouldn't that really be enough if they live on the enclave?
Why wouldn't that give them all they need with reference to voting, if they've got it from the government which has the enclave?
Mr. Richard Schifter: Your Honor, the United States, however, the Congress of the United States has not done so.
Justice Hugo L. Black: Well it could, couldn't it?
Mr. Richard Schifter: Oh!
Yes, they could.
Justice John M. Harlan: Are you as clear about that?
The reason I asked the question is because I am pretty sure there is obviously no doubt about it and --
Mr. Richard Schifter: Mr. Justice Harlan, under -- as far as the House of Representatives is concerned, I believe that this particular right could be said to be vested in the Congress of the United States.
It would not be the case perhaps with regard to other offices.
Justice John M. Harlan: Senators?
Not the case with the senators?
Mr. Richard Schifter: I would say it would be a more difficult issue in this case.
Justice Byron R. White: How about representatives?
Mr. Richard Schifter: It would be the same difficulty issue.
I think with regard to House of Representatives, it would be most--
Justice Byron R. White: So in any case, you don't think Congress could -- franchise the residents to vote in state elections?
Mr. Richard Schifter: Constitute?
No, certainly not.
And that therefore can only be done by asserting a right under the Fourteenth Amendment.
The position of the State of Maryland is basically that we're dealing here with a geographic area which is not part of the State of Maryland, the Doctrine of Extraterritoriality which was first enunciated by the State Courts in the 19th century particularly by Supreme Judicial Court of Massachusetts in 1841 in the opinion of the Justices and thereafter in Sinks versus Reese, 1869 by the Supreme Court of Ohio.
It is very significant to note that at both instances in the case of the decision of the Supreme Judicial Court of Massachusetts and again the decision of the Supreme Court of Ohio, a great deal of emphasis was placed on the fact that the residents of the enclave, as they existed then, had no obligations whatever toward the states in question, Massachusetts and Ohio and both Courts, placed the thrust of the decisions of the decision of both of these Courts was that because there was no obligation owed by an enclave resident to the state, it was for that reason that there was no concurrent or no right arising out of it to vote in that particular state.
As the District Court, three-judge court in this particular case pointed out, the situation was abruptly changed when a federal government in the late 1920s and 30s, enacted a series of statues which in effect extended the jurisdiction of the State of Maryland over the enclave and enclave residents for practically all purposes other than criminal jurisdiction and this is really what we are down to.
It is only as far as the enforcement of the criminal laws is concerned that there is a continuing, exclusive authority vested in the United States Government for all the rest of it in terms of the daily lives of the residents of the enclaves.
We are dealing with people who are in every other way subject to the laws and duties of citizens of Maryland.
Justice Hugo L. Black: How could they enforce a law with reference to speeding in the enclaves for instance in Maryland?
Mr. Richard Schifter: If that would be done, Mr. Justice Black by the -- in the United States Courts by the commissioners.
Justice Hugo L. Black: The what?
Mr. Richard Schifter: By United States Commissioners.
In other words, the speeding law would be enforced --
Justice Hugo L. Black: What control does Maryland have over the enclave, you said all but criminal and what does that include?
Mr. Richard Schifter: Taxation, as far as all taxes to which these people would be subject if they were not living on the enclave.
Justice Hugo L. Black: In other words, income tax --
Mr. Richard Schifter: That's right, income tax, sales tax, motor vehicle tax and --
Justice Hugo L. Black: So you can -- you do have that much interest in the election of officers.
Mr. Richard Schifter: That's right.
As a matter of fact, Your Honor I wish to point out that what we are dealing with here is a situation in which the plaintiffs are deprived of the right to vote for all offices from President of the United States on down to local members of the Board of Education.
And in each of these offices, save one, these residents have a very deep interest.
Chief Justice Warren E. Burger: Does this record show how many children there are resident in this enclave who are attending schools?
Mr. Richard Schifter: We have, Your Honor, the record only shows which of the plaintiffs have children and that they did attend schools.
Chief Justice Warren E. Burger: How many?
Justice Hugo L. Black: What schools do they attend?
Mr. Richard Schifter: Schools of Montgomery County, Maryland.
Chief Justice Warren E. Burger: That gives them quite an interest in Montgomery County.
Mr. Richard Schifter: Yes, it certainly does.
Justice Hugo L. Black: The preschool, public schools?
Mr. Richard Schifter: Yes, public schools of Montgomery County.
The record points out quite a number of the plaintiffs were members of the PTAs of Montgomery Country, that in every other way, they were part of the Montgomery County community and I wish to point out that prior to 1953, the issues as to whether they are or are not members of the Montgomery County really could not even have been raised.
It was simply that the state law ceding jurisdiction in 1953, simply drew a line along Wisconsin Avenue and Old Georgetown Road which said from here on end, there shall be no criminal jurisdiction by the State of Maryland over this particular area.
Justice Hugo L. Black: When did this particular controversy come up and how?
Mr. Richard Schifter: It came up in 1968, Your Honor.
Justice Hugo L. Black: 1968?
Mr. Richard Schifter: Yes and it developed in the following --
Justice Hugo L. Black: And Maryland made no effort to prevent that voting?
Mr. Richard Schifter: That's right until 1968.
Justice Hugo L. Black: Then how did it happen, was there a state law, or anything like that?
Mr. Richard Schifter: What happened was the following, the residents of another enclave in Cecil County, Maryland, had been prevented by the Board of Supervisors of Elections of their country from voting.
They went into the Maryland Courts and in 1963, the Maryland Court of Appeals in the Royer case decided against them.
Justice Hugo L. Black: Decided against people who wanted to vote?
Mr. Richard Schifter: That's right.
Justice Hugo L. Black: Now, what enclave was that?
Mr. Richard Schifter: That was Perry Point Naval Hospital, Veterans Hospital, Perry Point in Cecil Country.
Justice Hugo L. Black: How many voters there?
Mr. Richard Schifter: I suppose a small number.
Justice Hugo L. Black: Not in the size where the installation has --
Mr. Richard Schifter: 250 I am told.
It took, Mr. Justice Black, about five years before the news of the Royer case somehow got down to the Board of Election Supervisors in Montgomery Country and beginning early 1968 they decided to turn people down if they tried to register to vote if they were residents of the NIH enclave and in the months following when the point --
Justice Hugo L. Black: I assume Maryland is not objecting to them paying taxes ever?
Mr. Richard Schifter: No, it did not and it has been collecting taxes all along.
Justice John M. Harlan: Has there been an effort, a political effort in the state legislator to include these people in a state law?
Mr. Richard Schifter: Yes, Mr. Justice Harlan, there has been and it has failed.
It also, it was proposed as a provision of the -- proposed new constitution in the State of Maryland voted on in 1968 and the proposed new constitution failed too.
I would have to go outside the record.
I think I have an idea as to why there is some difficult as to why it's going through them.
Justice Hugo L. Black: Difficulty as to what?
Mr. Richard Schifter: Why the legislation is not going through.
I believe the delegation of Ann Arundel County has some doubts about military installations in that particular county.
Justice Hugo L. Black: You mean they didn't want them?.
Mr. Richard Schifter: That's right.
I believe that is a case.
Justice Byron R. White: They didn't want them voting?
Mr. Richard Schifter: They didn't want the military installation --
Justice Byron R. White: There wanted the military installation but they didn't want to vote?
Mr. Richard Schifter: Yes, I do want to emphasize an explanation however --
Justice Hugo L. Black: Did they want it?
Do I understand you said they wanted the installation but they didn't want them to vote?
Mr. Richard Schifter: That's right.
They are dealing among other things with the naval academy, Your Honor.
Justice Hugo L. Black: They didn't want it in Maryland?
Mr. Richard Schifter: They would not want the residents of these military installations to be voting at Anne Arundel County.
That is my understanding.
Justice Hugo L. Black: Has there ever been any objection to the installations being there?
Mr. Richard Schifter: I don't think so.
I do want to emphasize --
Chief Justice Warren E. Burger: But suppose the theory behind that is that their people without a permanent attachment to the State of Maryland?
Mr. Richard Schifter: Mr. Chief Justice, the issue that I would like to press home here is that that is not the point that we are making.
The State of Maryland retains the full power to define residents in terms of the bona fides of a particular persons living in a particular locality.
In the case of an Annapolis for example, the State of Maryland could perfectly well hold that a midshipman entering the academy for four years is not a bona fide resident of Maryland.
However, a member of the faculty who plans to spend his entire life there and lives on the enclave should be considered a permanent resident of Maryland.
The same is true at Fort Meade, somebody who is there on a temporary tour of duty can very well be denied his right to vote but somebody who again is there, as part of the permanent cadre should have a right to vote in the state of Maryland.
So the distinction can still be made, the issue that is raised here is whether a person living in a particular locality and planning to live there for the rest of his life should be deprived forever of his right to vote as long as he chooses to live at that particular locality even though he is paying taxes to the state and is as the court below pointed out also subject to the criminal laws of the state through the Assimilative Crimes Act.
The only issue, the only point of distinction as I have mentioned before is the point of distinction with regard to the enforcement of the criminal laws and to return to Mr. Justice Harlan's question, I would say that if the state were to provide that residents of the enclaves may not vote for a state’s attorney Montgomery Count, I would say that there would be a rational reason for depriving them of that right to vote because a state's attorney of Montgomery County does indeed have no jurisdiction over the enclave.
But every other officer of government for whom these residents may not vote under the theory of the other state, is a person in whom, in whose services have a vital interest.
Justice William J. Brennan: Now, I am not sure I quite understand your statement of fact but the state's attorney is the only officer without at least some if not complete jurisdiction over these would-be voters.
Why doesn't he under the Assimilative Crimes Act, he does not --
Mr. Richard Schifter: No he does not.
Justice William J. Brennan: I mean if there is a robbery or a murder or a rape or criminal assault and battery, the state substantive law applies out of the Assimilative Crimes Act?
Mr. Richard Schifter: It does but it is enforced by the U.S. Attorney in the federal courts.
Justice William J. Brennan: In the federal courts, I see.
Mr. Richard Schifter: Not in Assimilative Crimes Act.
This is why he is the only person that has no jurisdiction over them at their place of residence.
Justice Thurgood Marshall: I'm just wondering whether you're giving away too much.
Who enforces the income tax violation criminal?
If somebody on the enclaves refused to pay his taxes, estate taxes, who enforces that?
Mr. Richard Schifter: I assume that this would be done as far as the civil action is concerned.
Justice Thurgood Marshall: Criminal action.
Is it a crime in Maryland not to pay income tax?
Mr. Richard Schifter: I suppose it is a crime to falsify your return, Mr. Justice Marshall.
The enforcement I would assume would still be vested in the U.S. Attorney.
Justice William J. Brennan: That coincides with the answer you just gave me.
Mr. Richard Schifter: Yes, I cannot find any way out of that.
The states attorney just has no jurisdiction.
The U.S. Attorney would have to proceed in terms of enforcing the criminal laws of the state under the Assimilative Crimes Act.
Justice Hugo L. Black: Is the naval hospital across the street, an enclave?
Mr. Richard Schifter: I assume it is, Mr. Justice Black.
Justice Hugo L. Black: Same problem with that?
Mr. Richard Schifter: I assume it would arise there.
In the case of military personnel --
Chief Justice Warren E. Burger: Do you have many people living --
Mr. Richard Schifter: I assume we do not and the point is that in case of military personnel, the issue arises much less because they vote back home in their permanent place of residence.
In this particular case, we are dealing with a group of people who have made their home there for decades and who plan to stay there for good.
Justice Hugo L. Black: Well, I assume that's true over at Aspen?
A lot of them stay there for years.
Chief Justice Warren E. Burger: But do they live --
Mr. Richard Schifter: There still would be a tour of duty --
Chief Justice Warren E. Burger: -- are there residences on the naval enclave?
Mr. Richard Schifter: I beg your pardon?
Chief Justice Warren E. Burger: Do they have residences for the permanent staff -- medical staff on the enclave or do they live over in Montgomery Country?
Mr. Richard Schifter: I am not sure Mr. Chief Justice.
I suppose they do.
Justice Thurgood Marshall: But there are a number of residences around the hospital.
But I do not know whether the hospices or their doctors.
I understand they live outside.
Mr. Richard Schifter: I suppose some live there and others may live in homes on the reservation off the enclave.
With regard to the basic question of whether the absence of criminal jurisdiction can deprive a voter or a resident of a particular locality of the right to vote as to place of residence, I would like to direct the attention of the Court to the analogy in the cases involving American Indians who though they live in Indian reservations are and are not under the criminal jurisdiction of the states in most instances, do have the right to vote under the various decisions of the State Supreme Court since 1948.
We have referred in our brief to the decisions both in Arizona and New Mexico on this particular question.
The issue in that instance is the same one that arises here that in the absence of criminal jurisdiction of a state over the people living on the reservation, the right to vote can nevertheless not be denied.
Justice Byron R. White: What if someone opens up a liquor store on the enclave without complying with Maryland's laws for running retail liquor stores.
Can those who enforce those laws come and seize the liquor, perhaps the state's attorney couldn't prosecute you say but could they come on and close up the store?
Padlock it and seize the liquor?
Mr. Richard Schifter: I assume Mr. Justice White, they cannot.
They would have to proceed through the United States Attorney.
Justice Byron R. White: Why would that be?
Mr. Richard Schifter: I believe that this is inherent in the right of -- in the fact that the United States has -- starts out with exclusive jurisdiction --
Justice Byron R. White: So you're saying civilly too then that the enforcement proceedings of any kind of Maryland's laws, civil or criminal are in the hands of the United States Attorney?
Mr. Richard Schifter: Civil proceedings I would assume could be initiated in a certain court of Montgomery Country, Maryland against the violators --
Justice Byron R. White: Well, could they come and serve warrants?
Mr. Richard Schifter: Yes, they can.
Since the very beginning of the experience under the Forts and Dock-yard Clause, an exemption has always been written into--
Justice Byron R. White: For subpoenas and things like that?
Mr. Richard Schifter: Yes, both civil and criminal.
This goes back --
Justice Byron R. White: Serving summons?
Mr. Richard Schifter: Yes.
All that can be done and has been -- that was something that started way back early 19th century.
Justice Byron R. White: But you could probably take somebody's car away because it hadn't been inspected or didn't have a license on it, Maryland couldn’t do that?
Mr. Richard Schifter: No.
Justice William O. Douglas: I understand from the government, from the appellant's brief that they can't serve on a jury?
Mr. Richard Schifter: This as I pointed out, Mr. Justice Douglas is a circular argument --
Justice William O. Douglas: It is a fact I mean?
Mr. Richard Schifter: May I just explain.
The new state law provides that jurors shall be drawn from listed registered voters.
Justice William O. Douglas: I see.
Mr. Richard Schifter: And if they aren't on the list then they will be -- can't be jurors.
Justice William O. Douglas: But they can't be committed to a civil institution.
Is that right?
I gather that from the appellant's brief, that they can't be committed.
Mr. Richard Schifter: I suppose that we are dealing in that particular situation with a no man's land, will be very well be true.
Some of -- we have point out that in terms of the real factors involving people's lives, on a day to day basis, we're dealing here fundamentally with the point that the residents of enclaves pay the taxes that all other residents of Maryland similarly situated pay and are subject to the same laws that other residents of the State of Maryland are in terms of again, the daily life that the average resident of any part of the United States participates in.
The only opportunity that these people have to vote is to vote as residents of the enclave.
If they are deprived of the opportunity of voting on the enclave, they are totally deprived of the opportunity of voting anywhere.
Chief Justice Warren E. Burger: Thank you, Mr. Schifter.
Thank you for your submissions gentlemen.
The case is submitted.