KEY v. DOYLE

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Argument of Floyd Willis Iii

Chief Justice Warren E. Burger: We will hear next in 76-1057 Key against Doyle.

Mr. Willis, I think you may proceed when you are ready.

Mr. Floyd Willis Iii: Mr. Chief Justice may it please the court.

Very briefly, I would like to mention the statement of the case to this court.

This case involves a D.C Board, main statute, Section 18-302 and that statute basically provides that a devise or bequest of real or personal property to a minister, priest, rabbi, a public teacher or preacher of the gospel or to such religious order and so on.

He is not valid unless it is made unless it is made within 30 days before the death of the testator.Sallye Lipscomb French executed a will and left religious bequest and did not survive that will for 30 days.

Thereafter a complaint for instructions was filed by Judge Doyle and the case was heard before the Superior Court on motions for summary judgment.

The religious legatees being defendants as well as the heirs at law.

The lower court found that 18-302 is in fact unconstitutional for both First and Fifth Amendment reasons.

Appeal was taken to the District Court of Appeals, that court found that the statute was unconstitutional for due process or Fifth Amendment reasons.

Unknown Speaker: And did not deal with First AmendmentFloyd.

Mr. Floyd Willis Iii: Did not deal First amendment Judge Riley filed a concurring opinion which he dealt with the First amendment.

Unknown Speaker: Are you going to sometime in your argument summarize the reasoning of the majority of the Court of Appeals as to why it violated the Fifth Amendment?

Mr. Floyd Willis Iii: Yes your honor.

Unknown Speaker: And somewhere in your argument will you discuss the jurisdictional question which you did not cover in your brief despite our rule that you last -- that it be covered.

Mr. Floyd Willis Iii: Yes, Your Honor, that was a next thing, I was going to get to now that I have.

Unknown Speaker: Was there a reason you did not cover in your brief.

Mr. Floyd Willis Iii: In inadvertence, Your Honor, it is sort of hidden way down at the bottom of one of the, one of your rules and we just did not do so.

We did a make statement that 1257 (1) is a basis of the jurisdiction but we did not argue and we apologize to the court for not having done so.

Unknown Speaker: But you knew it was there when we postponed rather than noted jurisdiction.

Mr. Floyd Willis Iii: Frankly the significance of that escaped us to and we are now prepared to argue and our argument would be very brief basically based on Palmore, that this court does in fact have appellate jurisdiction.

Because of 1257 (1) and because of the language in 1257 (1) which states that the -- for purposes of this section and I think the language must include the whole section, paragraphs, one two and three, so that the highest court of the state include District of Columbia, Court of Appeals.

And in Palmore, I believe Your Honors decided basically that since Congress had not said that the appellate right of Mr. Palmore were because the statute was in fact, made the District of Columbia equivalent to a state statute then it must follow in our reasoning that the statute is in fact a statute of United State, and were it not so, I think that the additional language that I earlier cited would have no meaning.

In addition to that, Your Honors, I feel that there are substantial Federal questions involved here and that our jurisdictional statement could be treated as a petition for writ of Certiorari.

Now with respect to the issues involved in this case, it is submitted that this statute does not infringe on the Establishment Clause over the free exercise clause of First Amendment.

At first blush it certainly appears to involve religion, the statute is directed solely at religion.

Chief Justice Warren E. Burger: Well does not it include school teachers of some kind?

Mr. Floyd Willis Iii: Well I do not think that has been lower courts opinion your honor it said.

Chief Justice Warren E. Burger: You were addressing the statute as a whole on my question goes to that, it says ministers, priest, rabbi, public teacher or preacher at the gospel.

Mr. Floyd Willis Iii: I think within the meaning of that statute and the legislative history that appears in a Congressional record that the statute is directed only at religious persons or institution.

Chief Justice Warren E. Burger: You mean public teachers of religion.

Mr. Floyd Willis Iii: I assume that is the case, I assume that someone who is not ordained what goes about preaching a religion preset.

Chief Justice Warren E. Burger: Well, then the next category preachers of the gospel would be redundant because there are lot of preachers at the gospel who are not ordained ministers, I suppose.

Mr. Floyd Willis Iii: Well that is conceivably, Your Honor, I am not totally familiar with the rules and regulations involving ordainment.

Justice Potter Stewart: I suppose if there were not a comma after public teacher, he went into -- that your attribute to the statute would be much clearer, public teacher or preacher of the gospel, that comma makes your construction of it a little more difficult or the construction that you tell us that the District of Columbia courts have put on.

Mr. Floyd Willis Iii: I think those are just consecutive statements of who the statute will applied to Your Honor and I think that is what the comma means.

Now, it certainly is something that has not occurred to us any of us before this the arguments below taken somewhat by surprised by that and I really probably do not have a good answer to it.

Justice Potter Stewart: The court in this case, that the section by its terms declare void only bequest and devises for the benefit of religious institutions or by the clergy.

Mr. Floyd Willis Iii: That is correct that has been the position of both Judge Newman and the DC Court of Appeals.

Now, the Court of Appeals decided this case only on the rationale basis doctrine.

It decided that the statute had no objective of that to extend withstand a statutory scheme that would make it consistent with the constitution.

We submit that the statute just really part of the statutory scheme involving a testamentary transfer of property.

A power reserved solely to the Courts and solely to the states and that if the statute involves religion, at all it just does so indirectly, the statute's objective is to prevent the improvident gifts to buy a testator within this very brief period 30 days, since the making of a will and I think it has two- fold and a prophylactic basis.

It is to preclude the use of undue influence by religion for a limited period of 30 days

Justice Thurgood Marshall: But anybody else can use it.

Mr. Floyd Willis Iii: Undue influence.

Justice Thurgood Marshall: Yeah.

Mr. Floyd Willis Iii: Your Honor there are abilities to prevail when undue influence has been used independent of the statute.

Certainly, one can resort to the courts and prove that undue influence would have caused a testamentary disposition and by a caveat proceeding.

Justice William H. Rehnquist: Well, I suppose the legislature might have thought that the threat of eternal damnation was a higher degree of undue influence and then the kind of influence that might be brought by non clerical people.

Mr. Floyd Willis Iii: That is exactly what we submit, Your Honor I did not understand your honor, and the other premise of the statute is preclude the unwise distribution of one's estate at the expense of one's natural heirs, again limited solely to 30 day period.

I submit that surely the effect on religion, if there is any effect at all is less then existed in Brawnfeld wherein huge merchants maintained their day work discriminated against because of their religious beliefs and they were not able to stay in the status of workings on Sunday.

The statute is not designed to punish religion in our view, or to limit religious practices or beliefs, nor it is purpose to establish or de-establish religion.

It prescribes only for a very brief period testamentary transfers and such prescription is for a legitimate state purpose that is the legitimate fear of government that there is a mischief that can be perpetrated by as Mr. Justice Rehnquist says at least more readily by a person having the ability to express to a testator, the possibility of salvation.

We submit that the statute --

Unknown Speaker: Mr. Willis what happens in this case if this will were to be --or suppose it gave the entire estate to these religious beneficiaries and that were held to be a violation of the statue, what would be happen, would the earlier wills be revived or would the decision be regarded as dying intestate.

Mr. Floyd Willis Iii: In this case the decision would clearly be regarded as dying intestate, Your Honor, the statute there is a doctrine of independent relative or dependent relative revocation which suggests that the prior will made a similar dispositive scheme then the prior will could be used rather than intestacy.

It is stipulated that the doctrine does not apply in this case.

There were two prior wills, 1960, 1963.

Unknown Speaker: Which certainly indicates how thin the statute's application to this decedent is?

Mr. Floyd Willis Iii: Well, Your Honor the statute is not so thin because she did not in fact make the same sort of religious bequest in her prior wills, only in the will in which she failed to survive for a period of 30 days did which she make a substantial residuary bequest to religious institutions and actually she made those bequest to three religious institutions, John Hopkins University although it is not a church as such it is run by the church and maintained by the church and there has been some -- and as the Court of Appeals and District of Columbia said legal ledger domain that has enabled the statute to be gotten around on occasion by declaring that a bequest to a charitable institution which is owned and run by a religion is not the same as a bequest to a religion per se and much emphasis is put on that by the Court of Appeals of the District Columbia.

Unknown Speaker: In fact the statute is to avoid only so much of the will as devises the bequest to the Church or clergy, is it not, it is does not avoid the whole will if there were independent bequest.

Mr. Floyd Willis Iii: No only the bequests are declared to be invalid, those bequest to religious persons institutions etc.

Justice Thurgood Marshall: So if you gave it to four universities, two church oriented and two not --two church oriented would not get it.

Mr. Floyd Willis Iii: No, Your Honor, I do not think so.

We conceded that John Hopkins does not fall within the purview of this statute.

The John Hopkins is not in fact an institution a church institution as such but rather is an educational institutional that is incidentally operated by the church and we have done so because the DC law has been very clear that they would hold in that fashion.

There was also specific bequest of the Little Sisters of the Poor in this case, again a non-sectarian institution which is run by catholic order.

Justice Thurgood Marshall: So if you gave it two clergymen teaching at a university and two layman teaching at a university, the clergyman could not accept?

Mr. Floyd Willis Iii: Well there is some law in the District of Columbia that suggest that if you are in fact giving it to the individual because he is an individual rather than a priest that the statute would not have its effect.

Justice Thurgood Marshall: It sounds like what if done, the DC court gets through, then it would not be anything there?

Mr. Floyd Willis Iii: They made serious (Inaudible) and that is one of the reasons we feel that it has if any effect at all, only a very minimal effect on the exercise of religion, the 30 day period for one and the fact that the statute has been gotten around on many other occasions.

Now, I just kind of lost my place.

We also submit that the statute does not violate the Fifth Amendment.

Unknown Speaker: I just wonder if -- let us assume that we disagreed -- why to we reach the religious issue.

Mr. Floyd Willis Iii: We submit that you do not have to reach the religious issue.

Unknown Speaker: What if we disagreed with the lower court on that it violates the Due Process Clause?

Mr. Floyd Willis Iii: If you reach the issue that it violates the due process.

Unknown Speaker: What if we decide -- the lower court said that this violates the Due Process Clause?

Mr. Floyd Willis Iii: And also the First amendment of the lower court, the Superior Court of District of Columbia.

Unknown Speaker: Well, I know the Court of Appeal did not.

Mr. Floyd Willis Iii: The Court of Appeals did not.

Unknown Speaker: Let us assume we agree with you that the court was wrong on the due process then what do we do?

Mr. Floyd Willis Iii: You reverse and remand the case back, I believe.

Unknown Speaker: Without talking about the First Amendment do we?

Mr. Floyd Willis Iii: I would hope that would be the case although I have certainly prepared here --

Unknown Speaker: Or you have already argued the First Amendment?

Mr. Floyd Willis Iii: I understand that and I argued that because I felt that it was likely that Your Honors would want to hear the First amendment argument.

The lower court certainly made that argument and the concurring opinion of Judge Riley certainly made that argument.

Unknown Speaker: We have no idea how the lower court views the First amendment issue.

Mr. Floyd Willis Iii: It does bear in this fashion though, Your Honor on a procedural or a substantive due process or equal protection, the question becomes in is there a fundamental issue involved that requires strict scrutiny as opposed to the rational basis and getting to rational basis, if in fact the statute does create a classification, these classification do not offend constitutional safeguards of the Fifth Amendment, because the classifications are clearly related to the statute's objective.

That is, as I have already said to protect the testator during this very brief period when they might be inclined to leave their property in a unwise fashion and also I believe to preclude the church from exercising its unique abilities to influence gifts to religion.

Chief Justice Warren E. Burger: How does that apply, if one of the members of the professional football team 27, 28 years old makes a will, leaving everything to a church, then the airplane carrying them down to Houston, Texas for a football game crashes 10 days later, does that have any set statute rationale as applied to that situation or that is the is the purpose of the statute rationale?

Mr. Floyd Willis Iii: The purpose of the statute is I think is rational your honor and that is the test.

Under--

Chief Justice Warren E. Burger: That is the reason, I picked the 27 year old professional football players that I suspect he was not anticipating death at the time he made that will.

Mr. Floyd Willis Iii: That is correct, Judge Newman, for instance picked that a 25 year old Ferrari driver.

Chief Justice Warren E. Burger: Then it might be more dangerous.

Does it make any sense, is there are any elements of under influence as applying to an accidental death occurring?

Mr. Floyd Willis Iii: I do not think so, Your Honor.

I think that clearly is one of those unfortunate situations that runs a foul of the statute but I do not think that makes it unconstitutional.

Chief Justice Warren E. Burger: In any event we would not have to decide that in this case because we do not have a 27 year old professional football player.

Mr. Floyd Willis Iii: No, I do not think, I agree with you, Your Honor.

I think that is an issue that has to be decided by this court and was addressed by the lower courts, that the statute may very well apply to the people in the prime of their life who do not contemplate death and it may very well allow people who die 31 days after of a terminal illness to escape the effect of the statute.

Unknown Speaker: The Federal State and Gift Tax laws used to, I think they do not any more contain an irrebuttable presumption that any gift made within one year of death was in contemplation of death and that presumably would be applicable to the Ferrari driver or the football player, would it not?

And nobody else further knows to protect the constitutionality of those provisions.

Mr. Floyd Willis Iii: The irrebuttable presumption was specifically decided to be invalid by this court.

Unknown Speaker: The (Inaudible).

Mr. Floyd Willis Iii: The Hyner(ph).

Later the IRS that went to a rebuttable presumption and that certainly is also something it could be argued here that why not and I think Judge Newman said this why not have a rebuttable presumption so that there could be some kind of procedural due process review so that, Justice Burger's example would the free from the effect of the statute.

Well, I submit to you there is a couple of reasons, one the testator is always dead, so the motives of the testator are never going to be able to be discovered and two it is awfully hard to imagine at a due process hearing, the person who exercised that undue influence coming in and conceding it.

I think it would be a futile act to have a due process hearing on to that situation.

If, in fact this is an irrebuttable presumption and I think in order for it to be a irrebuttable presumption, that is the only time, we are going to have to have a due process theory to determine.

Justice Thurgood Marshall: Where would the influence be if somebody left the money to the Principal of Bishop in Kenya?

Mr. Floyd Willis Iii: I think if that person was in fact a resident of the District of Columbia that statute that bequest would be declared invalid.

Justice Thurgood Marshall: Nobody knows who he is.

Mr. Floyd Willis Iii: I guess there will have to be some feeling that he was in fact a religious person, Your Honor that would, he would be I believe allowed to come in on a due process basis and show that the statute did not apply to him, just as somebody would be allowed to show that no -- the date on this will is in fact 31 days before.

Justice Thurgood Marshall: Do you mean, a Bishop is surely, not a clergymen?

Mr. Floyd Willis Iii: Bishop is not a clergymen, I always thought that all Bishops were clergymen.

Justice Thurgood Marshall: Well, that is a valid point.

Would you say he could come in?

Mr. Floyd Willis Iii: Well, if he could show, if he could make a showing that he was not a clergymen, that his title of Bishop did not in fact mean that, I think he would be entitled to --.

Justice Thurgood Marshall: Take the whole lot of money and get --.

Mr. Floyd Willis Iii: As I have indicated, I believe this to be a rational classification, largely because of the unique ability of religions to prevail this kind of influence.

While it is true and it is something that the lower courts address themselves to, that there are other classes of people who may have an equal opportunity, that is access wise to influence the testator; our submission is as Justice Rehnquist has suggested to that, none of them possess the ability to suggest salvation in return for a substantial request.

Also, suggested there is way, the harsh aspect of this statute could have been voided, particularly in the case of Sallye Lipscomb French, her wills were written by a lawyer, she was 87 years old.

It appears likely that her life span was a short one.

She certainly could have made an inter vivos trust which would exist for 31 days or 35 days, which would dispose off the identical property that she disposed off by her will, and it could have been.

So that there was a way that the harshness of the statute could have been avoided.

If in fact, she was a rational person not affected by undue influence then she could have elected to do so and she is not a welfare recipient who is not going to be put in the position of having to go to lawyer and write a will, as has been the problem in some of the illegitimacy cases that your honors had decided.

I submit that in the irrebuttable presumption area the case decided by Your Honors of Weinberger v. Salfi is controlling.

In that case as you may recall there was a irrebuttable presumption as such that one who marries a person entitled to welfare benefits and not welfare social security benefits, and that marriage fails to survive for a nine month period, that the widow is in fact not entitled to the survivor benefits and your honors have decided that, that statute is in fact a prophylactic one as this one is a preventive one that does not require anything other than the showing that in fact they do not meet the standards that are required under that statute and that is the same I believe the facts here, except we are only dealing with 30 days, we are not dealing with nine months.

Mr. Salfi, in fact died of a heart attack and the suggestion is that it could have been shown if allowed by Mr. Salfi, that he was a healthy man and his marriage was entered in to not for the shame but rather as a genuine marriage.

I submit also now that we have already talked about a little bit that there is no reason to apply the strict scrutiny standard, I submit the statute has a clearly secular purpose, that is to protect the testator and the heirs and to prevent a particular class, a defined class from exercising undo influence within a very limited period.

Its primary effect, I think neither advances nor inhibits religion and I emphasize the words 'primary effect' and there is no excessive entanglement with religion in this case, no more so certainly than in the tax case was.

And in that situation as I indicated the primary effect portion of that standard is one that most closely be reviewed.

The question becomes in my view, in our view, he is the incidentally impact on religion that is the denial of this bequest.

Here assuming that there is an incidental impact, which results from the non-fundamental interest of a scheme of testamentary disposition obviously one which does not have a fundamental right attached to it; there is some question as to whether or not there is right to testamentary disposition without state procedures in any of event, is that incidental impact sufficient to trigger strict scrutiny, and I submit that in the standard that Your Honors have previously made the 'primary effect' clearly eliminates incidental impact and consequently that there is no compelling state interest that must be shown by the heirs at law or ordinarily by the District of Columbia government but they have declined to become involved in this after the superior court case.

Further, I suggest that what the courts below have done is they have substituted their own judgment for what is purely a legislative function.

There is a rational basis for the statute, they do not like the statute and as a consequence, they declare the statute to be violative of the Fifth and Fourteenth Amendment.

The statute may no longer be as valid as it once was, it is an 1866 statute, the same Congress that passed the Fourteenth Amendment and Judge Pomeroy in a dissent in a case from Pennsylvania, In re estate of Cavill (ph), said that in an age when the hope of salvation may be less vivid and the fear of damnation less acute than formerly it was, one may disagree with the wisdom or necessity of the provision before today but wisdom whether that this of court or the legislature is not determinative of legislative power, thank you.

Chief Justice Warren E. Burger: Thank you Mr. Willis.

Mr Bauersfeld.

Argument of Carl F. Bauersfeld

Mr. Carl F. Bauersfeld: Mr. Chief Justice, may it please the court.

I would like first to address myself to the jurisdiction question.

The Appellees renew their motion to dismiss this appeal on the ground that the court has no jurisdiction over the appeal under Title 28 USC Section 1257.

This motion is based upon the fact that allows any statute of the Congress is a statute of the United States, Congress did not intend laws applicable only in the District of Columbia to be statutes of the United States for purposes of this courts appeal jurisdiction under Section 1257 of Title 28.

We rely on the case of the American Security and Trust Company v. the Commissioners and the other case is cited in our motion to dismiss and also in the brief.

In the American Security case the court had under consideration, the provisions or Section 250 of the judicial code enacted in 1911 which provided that any final judgment or decree of the Court of Appeals may be reexamined in cases in which the construction of any law of the United States is drawn in to question by the defendant.

The court in the American Security case held that Section 250 of the judicial code should not be applied to purely local laws applicable only in the District of Columbia.

The opinion pointed out that the same phrase used in the statute may have different meanings in different connections.

In other words it is the context in which Congress uses the phrase that is important and it is we say here that the context in the present situation, it is unreasonable to believe the Congress in cases from the District of Columbia Court of Appeals where a statute is limited or confined to the operation in the District of Columbia are determined to be invalid is not to be -- come to this court by direct appeal.

In Palmore v. United States, the court pointed out that jurisdictional statutes are to be strictly construed in authorizing appeals to this court.

That case interpreted certain provisions of the District of Columbia.

The Court reformed a Criminal Procedure Act of 1917, that act clearly indicated that distinctions between the statutes of the United States and statutes of the District of Columbia are of jurisdictional importance.

If the new District of Columbia courts organized under article 1 or to be able to function as purely local courts and United States District Courts for the -- and the United States District Court for the District of Columbia was to be able to function as an exclusively Article III Court by section 1702 (C) of that Act, Congress added section 1363 to Title 28 of the code and that section provides for purposes of this chapter referring to District Court jurisdiction, references to the laws of the United States are acts of Congress do not include laws applicable exclusively to the District of Columbia.

Congress has recognized not only in the District of Columbia Court Reform Act in 1970, but generally, that enactments for the District of Columbia are separately distinct from those that are applicable to the entire United States.

It is done this by enacting two separate codes.

The District of Columbia code specifically provides that it contains all the general and permanent laws relating to or enforcing the District of Columbia except such laws as are applicable in the District of Columbia by reason of being laws of the United States, latter laws of course are -- appear in the United States code.

Now in the American Security and Trust Company case, the court recognized that the jurisdictional statute, it was interpreting there was passed to reduce the number of deals to this court; the position which was contended for by the appellant in that case would have had the effect of increasing the number of appeals contrary to the intention of Congress.

Unknown Speaker: Then they could come here only by way of certiorari.

Mr. Carl F. Bauersfeld: Yes sir.

Unknown Speaker: Not at all by appeal ever.

Mr. Carl F. Bauersfeld: From the district court from the District of Columbia, yes that would be my position.

Unknown Speaker: And that is an usual posture for any court, isn't it?

Mr. Carl F. Bauersfeld: Well at the present time, the appeals may only come here; cases may only come here to this court from the United States Court of Appeals for the District of Columbia circuit by certiorari.

Unknown Speaker: If it holds a state act and constitutional, doesn't the state have the right of appeal rather than certiorari?

Mr. Carl F. Bauersfeld: I think under 1254, that it may only come here by certiorari; certainly if a state court holds a state statute unconstitutional it has no right to come here.

Unknown Speaker: Yeah and if the federal constitution --.

Mr. Carl F. Bauersfeld: Yes, if it is the state statute.

Unknown Speaker: The general principles of a federal court holds a federal statute United States unconstitutional review is by certiorari.

Mr. Carl F. Bauersfeld: Yes sir.

Unknown Speaker: But if a federal court holds a state statute unconstitutional review is by appeal.

Mr. Carl F. Bauersfeld: I stand corrected Your Honor.

Unknown Speaker: My only point is I think you place this court in a position by itself and it maybe your argument would have to be that is what Congress intended.

Mr. Carl F. Bauersfeld: That is what my argument is your honor, it is not a court with the same magnitude as United States, Court of Appeals.

Unknown Speaker: What is involved in this case and you argued to us that you want to cut down on the number of appeals to this case to utilize and use an undue influence?

Mr. Carl F. Bauersfeld: I did not understand that sir.

Unknown Speaker: Well, if I understand it, and what you are suggesting is that even when the District of Columbia, Court of Appeals as in this case declares a district statute, unconstitutional, a statute, whose operation is confined to the district, unconstitutional under the federal constitution.

That they are only review here, in this court from the District of Columbia Court of Appeals is by certiorari.

Mr. Carl F. Bauersfeld: Yes sir.

Unknown Speaker: And you are urging on us what that we should treat this as a petition for cert and then deny it?

Mr. Carl F. Bauersfeld: Well, I was going to get that, let me add.

Unknown Speaker: That is your first submission on the jurisdiction.

Mr. Carl F. Bauersfeld: I have not finished yet.

Unknown Speaker: Well, I am sorry.

Mr. Carl F. Bauersfeld: But to further answer your question, if the District of Columbia code is considered a state statute, the laws are equivalent to state then the in validation a state, in effect the state law and if it were a state court, the state court could not come to this court by appeal.

Unknown Speaker: For jurisdictional purposes the District of Columbia Court of Appeals is a state code as well.

Mr. Carl F. Bauersfeld: Well, it is made applicable --

Unknown Speaker: We decided that.

Mr. Carl F. Bauersfeld: Yes.

Unknown Speaker: Well, if you deal with it as a state court then if it sustained under your approach, if it sustained a District of Columbia code provision against a federal challenge it would come here by appeal.

Mr. Carl F. Bauersfeld: That would be correct but if it holds a statute unconstitutional, just like if a state court holds a state statute on constitutional then there would be no appeal to this court, that was the point I was trying to say.

Unknown Speaker: Let us see if I follow you, did not the Palmore say that a D.C. Code provision was not a state statute, for purposes of (Inaudible)?

Mr. Carl F. Bauersfeld: It did say that sir but of course, I am getting back to my context argument in that, in that event there.

It did said that in the question.

Unknown Speaker: May I just inquire, are you arguing that a District of Columbia statute is neither a state statute nor a statute of United States or are you arguing that it is a state statute.

Mr. Carl F. Bauersfeld: I am arguing in effect that it is a state statute.

Unknown Speaker: I see, why do not you argue that it is neither?

Mr. Carl F. Bauersfeld: Well, I say.

Unknown Speaker: You are asking as to overall Palmore in effect or say it applies only to the --.

Mr. Carl F. Bauersfeld: No, I say, as used in Palmore, that is correct but in the context here Congress, I am saying never intended to confer upon this court appeal jurisdiction on direct appeals because while the District of Columbia Court of Appeals is the highest court, it is considered same as the highest court of a state, that does not necessarily mean that the statutes enacted are also of the highest court.

Unknown Speaker: I understand that but why can not you reach the same conclusion and what is wrong with the argument that these are a species of legislation which are neither statutes of the state or statutes of the United States was the meaning of that --.

Mr. Carl F. Bauersfeld: Well, of course that is absolutely correct because there cannot be statutes of the state because they are not enacted by the state, they are enacted by the Congress.

Unknown Speaker: And then not a Statute of United States by analogy to those Section in the later chapters, that does not literary apply to this case, this is a different chapter.

Mr. Carl F. Bauersfeld: We say that Congress did not intend in creating the District of Columbia Court of Appeals, intent to allow Appellate Jurisdiction to this Court under the -- every time it holds a Statute that is in District of Columbia Courts unconstitutional.

To do so would really expand its jurisdiction.

In enacting the District of Columbia Court Reform Act in 1970, Congress intended to have the newly created art of the one courts function as local or State Courts.

It intended the United States District Court to function as an Article 3 Court and by adding Section 13(63) to the US Code, it tempted to restrict the District Court's Jurisdiction to acts having general application.

It would seem to power that this Court's Appellate Jurisdiction should be limited to cases involving Statutes of the United States having general application rather than acts of Congress that are confined to the District of Columbia.

It is in this context that we urge the Court to deny jurisdiction.

In Palmore versus The United States, this Court treated the jurisdictional statement as a petition for certiorari.

It is submitted that the Court should not follow that procedure in this case because this case presents neither a substantial federal question nor an issue that needs further elucidation by way of precedent.

The D.C Statute here involved the so called Mortmain Statute is unique in the United States and that it voids only religious testamentary gifts.

The Pennsylvania Statutes in the other so called Mortmain Statutes are not merely so discriminatory.

And that they also prohibit gifts to other charitable organizations.

Here, the District of Columbia stands to gain tax revenue by continued validity of the Statute because the District of Columbia Court provides that the bequest would escheat to the District of Columbia if the testator had no living heirs.

Yet the District of Columbia did not appeal from the decision of the Superior Court.

The United State has never entered an appearance in the case, although each was given notice under rule 47, the rules of the District of Columbia Court of Appeals which is in analogous to 28 USC Section 24(03) where you have to notify the Attorney General in cases where there is a constitutional question in order to the Statute being drawn in question.

So apparently neither the District of Columbia nor the United States consider that the issues in this case are substantial else they would be here today.

Further there is a bill now pending before the City Council of the District of Columbia to repeal this particular Statute, it is bill 2-171 introduced in June 1, 1977.

Justice Thurgood Marshall: Will it affect this case, will it?

Unknown Speaker: Only on whether or not you consider the federal question, a substantial question.

Justice Thurgood Marshall: I do not see it can affect this case at all?

Unknown Speaker: Their non-appearance might reflect the conviction that the Court of Appeals was right?

Mr. Carl F. Bauersfeld: It may well sir.

Passing to the merits of the case we urge the Court to affirm the decision of the Court of Appeals.

Court below held the Statute invalid as establishing classifications that have no rational relationship to the purpose of the legislation and thus deny equal protection of the laws.

Unknown Speaker: Whose right are you depending here the church's or the testators involved?

Mr. Carl F. Bauersfeld: I would say both Your Honor.

The Court of Appeals place their decision of the rights of the legatees, Churches.

Unknown Speaker: And your client is one of the legatees?

Mr. Carl F. Bauersfeld: Yes your honor, well I represent the Calvary Baptist Church.

Unknown Speaker: So you are saying the legatees are being unconstitutionally discriminated as against other legatees?

Mr. Carl F. Bauersfeld: Yes, sir.

Unknown Speaker: And on the First Amendment question whose rights that the District Court feel had be entrenched, the testators or the churches?

Mr. Carl F. Bauersfeld: I think both, my best recollection your honor what has been ----

Unknown Speaker: Are you going to argue that question or it is ---

Mr. Carl F. Bauersfeld: Yes I thought if I had time---

Unknown Speaker: I just asked you, whose rights are you going to ---

Mr. Carl F. Bauersfeld: I think that as far as First Amendments rights are concerned it violated both.

Unknown Speaker: Was the testator a member of the congregation or whatever is told of your church?

Mr. Carl F. Bauersfeld: Yes he was a member of the congregation.

Unknown Speaker: Certainly in many cases that holds a membership organization or association concert to rights of its individual members LACP -- affirming any one of the case.

Mr. Carl F. Bauersfeld: Before getting in to the merits perhaps I should restate the facts or bring out some additional facts.

The bequest that was made by Mrs. French left a number of bequest and in addition it left her residuary to three persons, one third John Hopkins University which is not involved here that bequest, (Inaudible) should be paid and then one bequest to the Calvary Baptist Church, of one third of residuary and one third to St. Matthew's Cathedral.

Mrs. French was a member of a the Calvary Baptist Church, her husband a physician, who predeceased her was a member of the Catholic fate.

It was stipulated in the case and the Court of Appeals held there is no evidence that the Appellees had made any attempt to influence her choice of legatees.

In addition, this bequest in this case involves only personal property.

It does not involve any real property.

The heirs at law here are collaterals are brother and nieces and nephews.

I am getting back to my argument on merits.

The Court of Appeals relies on the legislative history and stated that the purpose of the Statute was to preclude bequest, gifts to clergymen and to religious organizations by persons who might be unduly influenced by religious considerations.

It pointed out that the Statute voids only bequest and devises for the benefit of religious institutions or the clergy.

Testamentary bequest to charitable organizations are not included in the DC Statute.

Further the Statute is interpreted by the District of Columbia Courts and I believe this Court will power the interpretations of the District of Columbia Court distinguishes between bequest to religious institutions and bequest to charitable institutions owned and operated by religious institutions.

The Statute only validates bequest to religious organizations and for the religious purposes and to the clergy.

The Court concluded that there was no rational basis for presuming that a testator troubled by religious convictions is likely to make a bequest directly to a church rather than to a charity run by the church, the Statute thus treats similarly situated legatees entirely different.

They further pointed out that there were others, such as lawyers, doctors, nurses and charities who are in an equal position with to influence a testator, yet the Statute never covers them and the same lean out of religion where there is no grounds or difference is irrational.

As I stated before this Statute operates if the testator has no family or heirs and this if it does had no family heirs, the bequest is automatically void and escheats to the District of Columbia.

It was stated that the Courts of the District of Columbia had used the doctrine of dependent relative revocation in other cases to avoid the Statute and this is true, and it was pointed out that it was not used in this case.

The reason was not used in this case, and we never got to it.

The Court granted summary judgment on the other but in the record it shows that the gifts that Mrs. French made to -- by a former wills to the charitable organizations.

Unknown Speaker: Were identical?

Mr. Carl F. Bauersfeld: No they were not identical but they did include---

Unknown Speaker: Same legatees.

Mr. Carl F. Bauersfeld: These legatees and regarding the tax law irrebuttable presumption, even though if they had presumption for tax purposes they never avoided the gift, the gift remained.

Unknown Speaker: We just presumed to be for the purpose of taxes.

What was the name of the case in this Court involved in it back in the 30s, do you remember?

Mr. Carl F. Bauersfeld: I am sorry, just forgot sir.

Unknown Speaker: You can not remember anything.

Mr. Carl F. Bauersfeld: It was suggested also by council that the testator could have avoided this problem by making inter vivos gifts.

Well that argument I think conflicts with the decision of this Court in rational of decision in Trimble v. Gordon where that is not the issue, if she had done that then we would not have the issue here.

In his argument and his brief, it is the Appellant State that is questionable whether the Statute makes the classification at all and thus whether the equal concept of laws applies.

It is argued that it is a part of the law of District relating to testamentary dispositions, the appellees recognized that a state can legislate to regulate both testate and intestate succession.

However when the State does so legislate, it can not do so in a discriminatory matter and it is here, its laws must be consistent with the requirements of equal protection and the Statute here singles out gifts to religious institutions for religious purposes and to the clergy in a discriminatory matter.

The Appellant state that the Statute does not regulate a fundamental interest protected by the First Amendment and therefore that there is no need to show a compelling interest to justify the Statute.

It seems to me that it needs little or no argument to show that the free exercise of one's religion is a fundamental constitutional right protected by the First Amendment.

Now, the Court of Appeals did not reach the issue of whether the classification affects fundamental rights, since it concluded that the discriminatory treatment set forth in the Statute could not withstand the rational basis test.

However, the trial court concluded that there was no compelling State interest to justify the classification made by the Statute.

The Statute singles out religious organizations for religious purposes alone and precludes the right of the beneficiaries to receive the bequest.

Unknown Speaker: Now is this an argument that it violates the First Amendment?

Mr. Carl F. Bauersfeld: No this is still under the --

Unknown Speaker: Equal protection.

Mr. Carl F. Bauersfeld: The Equal Protection clause.

Unknown Speaker: Would you be making the same argument if all the Statute did was to bar gifts to lawyers made within 30 days of death?

Mr. Carl F. Bauersfeld: I believe, so yes, if it singled out just lawyers, yes.

Unknown Speaker: Or any other identifiable --

Mr. Carl F. Bauersfeld: Any other single person, yes.

Unknown Speaker: What if it singled out people who have apt to have access to a testator in the period immediately before it might expect to die, doctors, lawyers, priest ministers, rabbi?

Mr. Carl F. Bauersfeld: If it was broad and just not just singling out religion and --

Unknown Speaker: And family members.

Justice Thurgood Marshall: That is right.

Unknown Speaker: Well what about the set of cases that says, stick to my lawyer example, there is a minor cases that says a State need not solve all the problems at once, it can take a step at a time and they just stepped in to the layer, I just took the lawyer's step in my example, do you would --- you think that would still be invalid?

For the same reason, if you are arguing on ---but at least you do not think there is any difference between priest and lawyers in that regard --

Mr. Carl F. Bauersfeld: No sir, I do not.

Unknown Speaker: What about the argument of the possible promise of salvation provides justification for legislating of respective religious persons?

Mr. Carl F. Bauersfeld: You are directly involving the First Amendment in that instance and I think it is suspected --

Unknown Speaker: But then, that is simply because the First Amendment argument or was that also equal protection?

Mr. Carl F. Bauersfeld: Well I think they would overlap sir, but it is a First Amendment argument primarily.

Unknown Speaker: Even if it -- we assumed to factually accurate, that there is a greater risk of an unwise testamentary disposition to some in exchange for promise of salvation, you still say it violates both---

Mr. Carl F. Bauersfeld: Yes, I think it violates both because it discriminates.

Unknown Speaker: Well, what part of the First Amendment do you think that violates?

Mr. Carl F. Bauersfeld: We think it violates both, however the Court---

Unknown Speaker: How does that lead to an establishment of a religion?

Mr. Carl F. Bauersfeld: If I can get over, do you want me to get out of the Fourth the ---

Unknown Speaker: Yeah, I would like since we are on the subject, you say it violates both section of the First Amendment, how does this particular Statute lead to the establishment of a religion?

Justice Thurgood Marshall: May be if it is enough money?

Mr. Carl F. Bauersfeld: Well the Establishment Clause says that the (Inaudible) law which establishes or forbids a religion.

Unknown Speaker: And you are saying it violates forbid clause not the establishment?

The establishments, with all respect to you, brother, why it does not say forbid?

Says affected.

It says Congress shall make law respecting an establishment or prohibiting the free exercise there --.

Now may be we are in the Free Exercise Clause?

Mr. Carl F. Bauersfeld: I think we are in both and ---

Chief Justice Warren E. Burger: Anyway if you do not need both, if you can persuade us on one, do you?

Mr. Carl F. Bauersfeld: That is correct, and the Court below in the Trial Court held that it violated the Free Exercise provision of the First Amendment.

Chief Justice Warren E. Burger: The right of any testator to give, makes bequest to some, give legacies to anyone, to any church or all churches?

Mr. Carl F. Bauersfeld: Yes.

Unknown Speaker: And what authority is there for the propositions that the Chief Justice has justice suggested to you, that the free exercise clause confers the right to unfetteredly bequeath money to any church regardless of any State regulations?

Unknown Speaker: Let me suggest an answer that the free exercise preserves the right of a clergyman to persuade his member of his congregation to give it to the church.

Mr. Carl F. Bauersfeld: That was of course, the direct opinion of the concurring judge in the Court of Appeals, he placed it on that very right.

Unknown Speaker: You do not go along with that.

Mr. Carl F. Bauersfeld: Well I think it is easier to justify it on other grounds but I agree with it but I think it is just easier to justify on other ground.

Unknown Speaker: What grounds, equal protection?

Mr. Carl F. Bauersfeld: Yes the Court of Appeals reached it on the equal protection.

Unknown Speaker: I know that but what -- may be that is a slippery slope?

What do you think we should decide it on, if we go your way?

Mr. Carl F. Bauersfeld: Well, I would prefer you to decide it on the Equal Protection Clause, sir.

Chief Justice Warren E. Burger: I think, your time is expired now, I think your friend has one minute left.

Do you have anything further?

Rebuttal of Floyd Willis Iii

Mr. Floyd Willis Iii: Oh yes your honor I want to just brief on --

Chief Justice Warren E. Burger: Whether he is going to give us anything?

Mr. Floyd Willis Iii: Just on the issue of jurisdiction, I submit that what my brother says is not accurate because the Statute would not include the last paragraph that is 1257 would not include the last paragraph, if Congress did not mean for the State, this Court to have Appellate Jurisdiction over the District of Columbia Court of Appeals.

Comment was made that DC has not appeared, the District, the government has not appeared, I submit to you because of the diminimus effect of the Statute has on the District of Columbia and not because they feel it is unconstitutional.

The very distinction between this Statute and all other Statutes of alike nature is what makes this Statute more rational.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.