FOLEY v. CONNELIE

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Argument of Jonathan A. Weiss

Chief Justice Warren E. Burger: We will hear arguments next in 76-839 Foley against Connelie.

Mr. Weiss, you may proceed whenever you are ready.

Mr. Jonathan A. Weiss: Mr. Chief justice and may it please this Court.

This case involves exclusions of all non-citizens from all jobs in the New York State Police Department as troopers etcetera.

By such exclusion various constitutional precepts are violated.

First, there is a group at consideration.

Aliens; Aliens have been considered by this Court and just be so a discrete insular minority.

They are on one hand, vulnerable because of their peculiar status, on the other hand they contribute by their presence here to the country.

Chief Justice Warren E. Burger: Who were the constituents in the discrete insular minority that Justice Stone referred to?

Mr. Jonathan A. Weiss: In that case they were not aliens, they were -- you are talking about footnote 4, I take it.

There was any group that could be classified particularly as having specific characteristics, it was a generic classification.

In this case, we have what has been characterized by this Court as an example of that minority --

Chief Justice Warren E. Burger: In fact what were they in Justice Stone's --

Mr. Jonathan A. Weiss: I do not recall this, Your Honor, I do recall they were not aliens.

Justice William H. Rehnquist: That was in the Carolene Products.

Mr. Jonathan A. Weiss: Yes, it is footnote 4 in Carolene Products.

Justice William H. Rehnquist: I think the footnote was kind of not necessary perhaps to the decision of that case.

Mr. Jonathan A. Weiss: No, I agree Your Honor, and I was not relying upon the footnote number 4, Carolene Products but rather description.

Justice William H. Rehnquist: In Justice Blackmun's opinion to the Court.

Mr. Jonathan A. Weiss: That is right.

Which differs back to that and gives it cognitive content that is the reference we made, where the dispute as to whether there is an appropriate reference back but that is the law concerning aliens.

These are individuals of course, who have undergone federal scrutiny here pursuant to a federal statute.

Chief Justice Warren E. Burger: Do you think there is a difference between a discrete insular group whether minority or otherwise, when they are -- let us say American-Indians or Negros or women or men who cannot change their condition, that is one kind of a discrete insular group.

Do you think aliens fit into that kind of a definition of the group?

Mr. Jonathan A. Weiss: They can, they cannot.

The question is, when is that distinction important?

In this case for example, some of the aliens cannot change their status for the purpose of this case and lead themselves of the exclusionary burden.

There are others who perhaps could.

So for the purpose of this case, that is not a functional distinction but it could be a distinction that could come into play in other cases.

Chief Justice Warren E. Burger: As I understand the record Mr. Foley could not become a citizen in time to meet the age requirement.

Mr. Jonathan A. Weiss: That is correct and therefore this is a status which he and others like him are unable to change.

There may be other individuals because the category is so broad that could in fact change their status and they too would form this rubric but that distinction could not be made to the purpose of this case, it might be made for different statutes and different considerations at different times.

I think it is also important to note what is at stake here, what right we are talking about excluding these non-citizens from.

Unknown Speaker: Mr. Weiss, could I ask one question?

Your client could not change his status in time to qualify, but this is a Class Action, is it not?

Mr. Jonathan A. Weiss: That is correct.

Unknown Speaker: Now is the class limited to plaintiffs who could not change their status because of the age qualification or does it apply to all aliens?

Mr. Jonathan A. Weiss: Apply to all aliens Your Honor.

Because that is how the statute sweeps and that includes those two if you want possibly distinguishable sub-classes, those that can and those that cannot.

The right at stake here is employment.

This Court has consistently held and in conjunction with alien rights that employment is a crucial right.

In particular, this is employment in a Police Department.

For whatever reasons may be evoked to justify such an exclusion it was seem to frustrate rather further these purposes.

To have an efficient police force you want to have the largest pool to select from of capable individuals by excluding aliens whose contributions we welcome in other spheres, we cut down that possibility, we eliminate certain applicants who may be superior to those who would be accepted when you eliminate this group.

In particular, since we are a country, also heterogeneity and country traditional immigrants and there are large foreign speaking populations.

It can even be suggested as the Amicus has that there is a need to go into this pool of potential foreign speakers and people who have so ability to relate from time-to-time petition to immigrant proof.

Chief Justice Warren E. Burger: Are you suggesting that aliens who cannot speak English are also a discrete insular minority or group?

Mr. Jonathan A. Weiss: I would suggest they are, but not one that I would want in the police force.

That was not suggested.

The suggestion is that is truly probably to recruit for particular skills, regardless of race, creed or color.

For example, if you have a large Spanish speaking population you might want to recruit Spanish speaking policemen regardless of their race.

If you exclude yourself or have excluded from the pool a large population which speaks Spanish as well as English you may in fact illumining your ability to recruit able police officers with this what you are looking for.

What I am suggesting is that the Amicus suggestion may have some validity that there may be virtue even looking out for aliens to respond to particular community needs.

But that in no question the ultimate resolution has to be the merit of the individual to serve the police force, they must pass those tests and the more people we have applying ability the more likely we are to have a better group to in fact carry out the law enforcement duties.

Chief Justice Warren E. Burger: Various assessments made from time-to-time, some governmental and some private are that we have from the range of 8 million to possibly as high as 12 million illegal aliens in the country.

Do you think, illegal aliens are discrete insular group?

Mr. Jonathan A. Weiss: Once again Your Honor I am sure they are, but not one I think we should have in the police force.

The police force deals with people who must enforce a law and one of the screening characteristics one should have in police force, if exclude those people who have committed illegal acts.

We would not want the discrete minority --

Chief Justice Warren E. Burger: Obviously whether it is 8 million or 12 million or 6 million obviously this is a large group of people who need some attention from law enforcement people and to pursue your theory this is a -- if you went in to the illegal aliens for policeman, for law enforcement people you would have the group with some compatibility and empathy toward that group, thereby enlarging the pool as you put it.

Mr. Jonathan A. Weiss: Well, the argument could also be made that for that reason you have to hire ex-felony convicts because they have some identity with the --

Chief Justice Warren E. Burger: But this is not their argument, I am taking you, it is your argument.

Mr. Jonathan A. Weiss: No, what I am suggesting that there are certain standards which should be met.

They should include very clear skills of handling weapons, language to understand the law, and also I would think a policeman should as a servant of the law expect to have lived up to the law.

So anybody was painted by illegality.

The issue is not --

Chief Justice Warren E. Burger: Would it make any difference to the points you are making, if the alien had been in the country for ten years and just ignored the opportunities to become a citizen?

Mr. Jonathan A. Weiss: In so far it continues to commit a crime I would think --

Chief Justice Warren E. Burger: No, I am not talking about illegals, I am talking about your man now.

The person in your class, your client, if the person had been in the country for ten years with abundant opportunity to become a citizen would that make any difference?

Mr. Jonathan A. Weiss: Would it make any difference in this case, in my opinion, it would not because it would merely be a different plaintiff for the same class.

We have these two classes that are covered by the statute, those who cannot change their status and those who can.

I also suggest that perhaps even for those individuals who cannot change their status, the clear implications of Mauclet that they too would be covered by this court's decision.

Particularly, since as Your Honor suggested in Mauclet, the employment right is also crucial factor in establishing whether or not some unconstitutional discrimination.

Justice Thurgood Marshall: As to the illegal alien, is it not true that when he shows up he will no longer be an applicant?

Mr. Jonathan A. Weiss: I would think that he would be an applicant for deportation more likely than the State Police Force.

Unknown Speaker: Mr. Weiss, you really are speaking only of the resident legal aliens, are you not?

Mr. Jonathan A. Weiss: Yes.

Unknown Speaker: Secondly, we are concerned here with the so-called New York State troopers.

As I understand that if that is divided into three separate departments, the one assigned by the Governor and so forth and the other one highway petrol officers and then third, the civilian guard detective forces or CID or something.

Would your case be any different, would you be here, if we were concerned only with the New York City Police Department, would you be making the same arguments?

Mr. Jonathan A. Weiss: I would think after Dougall v. Sugarman the case would be very similar.

Yes, I think I still be here in New York City but in New York State because it has the whole statewide applications, (Inaudible) would be probably a clear example but I think I have a similar case in the city.

Unknown Speaker: I asked this because you have referred to a class as policeman, that for some reason, viz-a-viz, a the municipal reaction rather than a state reaction.

So you make the same argument.

Mr. Jonathan A. Weiss: Yeah.

Unknown Speaker: Lastly, in New York State there is a permit to carry a gun under certain circumstances obtainable?

Mr. Jonathan A. Weiss: I believe that -- you mean for private citizen?

Unknown Speaker: Yes.

Mr. Jonathan A. Weiss: Yes, I believe in both New York State, New York City is obtainable.

Unknown Speaker: Restricted citizens or aliens also there?

Mr. Jonathan A. Weiss: Your Honor, I do not know.

Unknown Speaker: You have so New York statutes that restrict everything to citizens I wonder.

Mr. Jonathan A. Weiss: Well, New York State as we suggested in brief, that one period passed, a whole series of aliens exclusion and alien discrimination statutes covering a whole or I say crazy quilt of possibilities.

You list some and you do not know about handguns.

If the Court wants I can submit a brief statement a couple of days after argument.

Justice William H. Rehnquist: Do you know of what is called the Sullivan law.

Mr. Jonathan A. Weiss: Yeah.

Justice William H. Rehnquist: Is that a New York City ordinance or State?

Mr. Jonathan A. Weiss: Yes, I believe this is New York City ordinance.

My impression Your Honor is fairly clear that it is the city and my counsel here agrees with me in that.

The New York City Sullivan law and prohibits carrying handguns, I do not believe implies mistake.

But I can again clarify that.

Justice Thurgood Marshall: But the Sullivan law is a felony, is it not?

The city has felonies?

Mr. Jonathan A. Weiss: I think the Sullivan law is a misdemeanor but I am not sure on that but I am pretty sure it is a City law.

I think it is carrying, concealed handguns and I believe also it is a registration thing in various exclusions.

Again I am not familiar whether that has an alien aspect to it.

I think the exclusionary categories deal with a character and past criminal convictions and the like.

Unknown Speaker: Do aliens have the right to leave the United States without a passport?

I suppose, I have a passport from my alien country.

Mr. Jonathan A. Weiss: I believe that resident alien with a Green Card can -- with permission from the council come and go from the United States.

Unknown Speaker: Permission from the council.

Mr. Jonathan A. Weiss: Council of the United States I believe, you have to notify them when you are going and coming back, which you go out for more than a particular period of time, you surrender that status.

And therefore they have to be notified that you are leaving and we get permission.

Unknown Speaker: If an English alien for example wishes to go back to England for a holiday, does he have to get permission from anyone?

Mr. Jonathan A. Weiss: I do not know Your Honor, I believe so, I do not know.

I cannot answer that.

I do know that you have to maintain residence in connection with the United States for a period of time in order to retain your Green Card.

It is our essential conceptual argument here that the conjunction of Dougall v. Sugarman which says you cannot exclude non-citizens from public employment in New York State.

In re Griffiths which holds that you cannot prevent aliens from being lawyers, combined make an a fortiori case that you cannot exclude people who want to apply for various law enforcement jobs.

A policeman or trooper carries out the law under supervision, under directions and in conjunction with a whole paramilitary organization has been characterized by the State.

Unknown Speaker: On the other hand is it not a member of your group expected to excel and to go up a scale on the hierarchy, perhaps the for long, he might be a Captain or a Major whatever you call him and we observed exercising in a lot more policy decisions.

Mr. Jonathan A. Weiss: If it is possible for policeman at the top to exercise policy decisions it might be possible for one of those class eventually be considered for that position.

At that point however I believe in addition the Head of the New York State Police makes individual determinations as to who should be promoted.

So if there were anything which could conceivably be relevant in connection with the alien age, that would then be concerned at that time.

But any event this statute does not speak to a specific narrow group of possible policy makers, the New York State Police Department, but rather to every single conceivable applicant to the New York State Police Organization.

As a consequence, since this is such a broad exclusion, it implies in the face of defining narrowly who can be excluded and for what reasons, since it frustrates the purposes of having a police force since it folds against the whole line of presence that this Court has issued and have been generated by this Court's decisions, we submit that the exclusion from the State Police Department for all non-citizens must be declared unconstitutional.

I would like to reserve whatever time I have for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Weiss.

Ms. Gordon.

Argument of Judith A. Gordon

Ms Judith A. Gordon: Mr. Chief Justice, and may it please the Court.

The issue presented for determination on this appeal is where the permanent resident aliens may be excluded from membership, this one officer status of the New York State Police under New York Executive Law Section 215 (3) consistently with the aliens rights under the Equal Protection Clause.

Contrary to the suggestions in appellants brief in portion of his argument here today, there is no issue with respect to aliens who are in the alleged dilemma of being caught between the federal five-year durational residence requirement for naturalization and the generally applicable 29-year-old age requirement for appointment to the State Police.

Chief Justice Warren E. Burger: You say there is none.

Ms Judith A. Gordon: There is no such issue Your Honor and that is for the reason that the case was brought as a Class Action of all permanent resident aliens, and I should note here Your Honor that of course there is no issue with respect to any other types of aliens, temporary resident aliens or illegal aliens.

In any event, the class as defined and stipulated too by appellant is of all permanent resident aliens who but for the citizenship limitation in Section 215 (3) would be eligible to apply for position with the State Police for membership in the State Police.

Chief Justice Warren E. Burger: Did the District Court certify a class action?

Ms Judith A. Gordon: Yes, Your Honor and that is the class essentially as I have given it to you and it appears in the District Court opinion, the majority opinion at pages A 3-4 of the Appendix to the jurisdiction of statement.

There is of course no reference in that definition of the class to the subjective expectations of the individuals involved as to whether or not they would want to become citizens, likewise, there is no reference in that class action order to the probably or improbable likelihood of the frustration of those expectations assuming that the individuals had them by the operation of the general age requirement.

Now the record below in addition does not support any such alleged dilemma, the age --

Chief Justice Warren E. Burger: What is the page number that you gave us?

Ms Judith A. Gordon: It is A 3through 4 of the appendix to the jurisdictional statement.

Your Honor I would call to your attention that in this case, the opinions are contained in the Appendix to the jurisdictional statements and that the Appendix filed on this appeal the beiges copy has some documents of records that were not previously filed thought.

Justice William H. Rehnquist: Well, Ms. Gordon this class is a little different at least and it is a little broader than the one you identified, it talks about the plaintiff and all other alien residents in the State of New York who have applied or will apply for the position of State trooper.

Now that does not talk about permanent resident aliens nor illegal aliens, it sets all I suppose imply but it is not stated.

Ms Judith A. Gordon: Your Honor I think that it expressly implied and the -- I am just trying to find the original stipulation Your Honor.

Justice William H. Rehnquist: But on A3 and A4 that is what it says.

Ms Judith A. Gordon: If Your Honor looks at the beiges Appendix D22.

Justice William H. Rehnquist: D22?

Ms Judith A. Gordon: Right.

The older page is in the beiges Appendix, D page, it is in the page 22 Your Honor will find the stipulations awarded by Judge Pollock which defines the class as consisting of all permanent resident aliens who but for the enforcement of New York Executive Law 215 (3) would otherwise be eligible to compete for employment as a State trooper.

Justice William H. Rehnquist: And I suppose all permanent resident aliens implies that they are not illegal aliens.

Ms Judith A. Gordon: Yes, and that they are not temporary aliens, Your Honor.

Justice William H. Rehnquist: And certainly permanent means they are not temporary?

It does not mean they are illegal.

Ms Judith A. Gordon: Right, and as I was just indicating to you because the age of the appellant was not raised below, because his entering status was not raised below and it was the date of his permanent resident status was not raised below, there was no dilemma hypothicated before the District Court -- and obviously the District Court majority so proceeded in fact if you look at Judge Mansfield's dissent, you will find the reference to the alleged dilemma footnoted in his opinion as a point raised in the appellant's reply brief before that court after the case was --.

Justice William H. Rehnquist: And this class --

Ms Judith A. Gordon: And this class, in other words there was no --

Justice William H. Rehnquist: Inevitably include some in that dilemma.

Ms Judith A. Gordon: It might very well includes some in that dilemma but the dilemma, the specific one that appellant seeks to argue even if you concede him the facts that he now alleges in his reply brief namely that he cured a permanent resident status in 1974 and that he will be 30 years old in 1980 he now alleges.

Justice William H. Rehnquist: But this class by definition of those who would otherwise be eligible to compete for employment would include all resident aliens up to age 29.

Ms Judith A. Gordon: That is correct.

Justice William H. Rehnquist: And obviously would include therefore many who could not become nationalized citizens before they were too old to apply.

Ms Judith A. Gordon: That is correct it would.

Justice William H. Rehnquist: It is inevitably --.

Ms Judith A. Gordon: If that might be so except with respect to this named plaintiff it is not so because based on his new facts as alleged since he will not to be 30 until 1980 and since he can become citizen in 1979, he could be fully qualified to compete in the next examination series, that is the point.

That is our point on that with respect to that issue.

Chief Justice Warren E. Burger: Well, if the effect becomes critical or may there not be some problem with the breadth of the class certification.

Ms Judith A. Gordon: If that is the issue Your Honor it would become -- there would be a problem with the breadth of the class certification and it is our position here that the class certification cannot be modified to admit of what are essentially new allegations by the plaintiff.

However, I think that it is somewhat difficult for me to quite understand the force of the appellant's argument with respect to the alleged dilemma.

If plaintiff were actually in a dilemma it would connote that he wanted to become a citizen.

The distinction that he is -- that appellant has attempted to draw throughout this litigation is that aliens qua aliens are excluded and that is the kind of distinction that was made in Dougall, the kind of distinction that was made in Griffiths and indeed the basis on which the District Court determined the issue.

Chief Justice Warren E. Burger: But what if what if this court were to hold that all though as to aliens who fulfill their residency requirement and could becomes citizens before their 29th birthday, there is no denial of Equal Protection worked by the New York Statute as to those in the class that appellant alleges he is in, those who can not become citizens by their 29th birthday there is a discrimination.

What does a court do with the class certification?

Ms Judith A. Gordon: It would seem that the court would have to avoid it Your Honor except that I think.

Chief Justice Warren E. Burger: How do we avoid it.

Ms Judith A. Gordon: Well, you would obviously have to -- it was my view Your Honor that you could not change the class certification and the class certification framed the issue in the case and accordingly this dilemma was not reached.

If the class action certification had to be modified and frankly I do not think that that is necessary for the determination of this case because since Mr. Justice Stewart points that there are bound to be some individuals, this dilemma is illustrative of some potential class members but if the certification were to be modified it would seem that the case would have to be remanded Your Honor.

Justice Thurgood Marshall: And if you win you do not worry about it at all?

Ms Judith A. Gordon: That's right Your Honor.

Justice Thurgood Marshall: And that is why I think you should be gaining.

Ms Judith A. Gordon: Your Honor.

Unknown Speaker: Ms. Gordon, can I ask one question about the qualification.

Ms Judith A. Gordon: Yes.

Unknown Speaker: Age 29 is the minimum or the maximum age at which at which you can become a state policeman or get on the list of those who can work up and become a citizen.

Ms Judith A. Gordon: Technically Your Honor 29 would be the age, 29 to the 30th year would be the age for appointment from the list.

However, the statute 215(3) in which that limitation is incorporated provides a discretion to the superintendent to extend the maximum age to 35 and indeed it makes mandatory for up to six years, extensions by virtue of the performance of military service and that is another aspect which we indicate in our brief would relieve petitioner appellant of his dilemma.

Unknown Speaker: Or he has to join the army in the meantime.

Ms Judith A. Gordon: Well, oh yes, that is one thing he could do Your Honor but he could also -- I mean it would be frivolous to think Your Honor that had appellant pursued in a reasonable course, his application for citizenship and had he taken the test and the time came for appointment and he was 20 about to be 31 but could not be naturalized because of the former proceedings which are insurgent to that.

In other words, he was waiting to take his oath before a Federal Officer.

It would be frivolous to think that the superintendent would not extend his time since he can extend the age up to 35 to accommodate what -- were delays not within the control of the appellant.

Unknown Speaker: But it is discretionary even though he would not not on the list.

Ms Judith A. Gordon: It is discretionary Your Honor, yes.

Your Honors, a State at sovereign because it both creates and enforces its own laws.

A state police officer perform sovereign functions in New York because he in fact enforces New York Laws.

His powers to arrest throughout the state on his own initiative for all crimes and offenses.

His power to use force including deadly force.

His power to search.

His power to stop and frisk and to issue commands to the general population which must be obeyed which cannot be resisted by force are extraordinary and are unique to his office.

If the officer exercises these powers his acts result in the forcible detention of an individual and the seizure of private property.

In addition, his acts result in the initiation of the criminal justice process.

If he does not arrest the officer has like the juror at a criminal trial acquitted a potential defendant on facts which in the judgment of another might constitute a crime or arrest.

A police officer must decide which course of action to follow and he alone is responsible for his actions.

If his judgment is questioned he is entitled to a defense only of the reasonableness of his acts and are judged on the existing circumstances at the time his act took place and questioned.

He cannot rely on superior orders and he has no such defense under New York State Law.

Justice Thurgood Marshall: Ms. Gordon, you mentioned a juror.

Are aliens allowed to serve on juror?

Ms Judith A. Gordon: No Your Honor aliens are not allowed to serve on.

Justice Thurgood Marshall: That is in a group, that whole bunch of statutes he was talking about --

Ms Judith A. Gordon: Well, these quitted aliens are not -- cannot be grand or petty federal jurors or grand to our petty state jurors, the court recently affirmed Perkins versus Smith involving the State Court Juror which had a citizenship requirement.

The state police officer not only performs a governmental function when he protects and prevents crimes against private persons and property, but he performs specific functions in aid of the preservation of the State itself as a political entity.

He must guard against civil disorder, insurrection, subversion and breach of state security.

He guide for the life of the chief executive and all the dignitaries in the State.

In light of the importance of his functions and his identification with government, New York has designated him as a public officer since approximately since exactly 1917, when the State Police were created.

Now appellant does not dispute that the powers we have just described are in fact the powers exercised by police.

Unknown Speaker: Mrs. Gordan, you said the state has made him as a public officer.

What follows from that is there a definition somewhere in the constitution of the New York or elsewhere as what follows from being a public officer?

Ms Judith A. Gordon: Well, it is of some interest Your Honor that in this court's opinion in Dougall versus Sugarman, the court adapted a formulation of public officer which as New York State formulation public officer.

Unknown Speaker: Tied to somehow to the definition of New York State.

Ms Judith A. Gordon: Pardon me.

Unknown Speaker: Tied this on how its to the definition of New York State.

Ms Judith A. Gordon: Yes, well in New York State, a public officer is one who exercises a portion of the sovereignty of the State that is he is involved in the creation of the law, the enforcement of the law or like a judge in the interpretation of the law.

Now as a historical matter, categories of public officers have eventuated in New York essentially by accretion other than in the Common Law tradition, other than the few public office that are maybe designated in the constitution or by statute and the individual police officer, the State police officer is specifically designated to be that public officer because of these powers which invoke the sovereignty of the state.

Chief Justice Warren E. Burger: I see.

Of course, in making an arrest they surely invoke the sovereignty of the state.

Do they not?

Ms Judith A. Gordon: That is correct Your Honor.

He is in fact the embodiment of the sovereignty of the State.

Chief Justice Warren E. Burger: Even directing conflicts, I suppose.

Ms Judith A. Gordon: When the officer pulls you over to the side, I think better to look at this way Your Honor.

The response of the individual on a society to the officers command whether it is in the arrest or whether it is obedience to an order that he may give to a crowd or whether it is because he pulls you over to the side of the road, that response, that obedience is given to him because he is in these set of circumstances, the embodiment of the law, in that sense he is the sovereign and in that sense his order shall be obeyed.

Chief Justice Warren E. Burger: There are some judicial opinions I do not recall them at the moment which have said even if they were not holding means that police officer under breach exercises a broader discretion than a judge on the bench.

Ms Judith A. Gordon: Absolutely Your Honor and that is one of our points here because for example, it is only the Judge at a criminal trial who is both interpreter of the low and triar of fact, who exercises the complete panoply of incidents that the police officer exercises.

His functions, the police officers functions are discretionary because given the law, he must interpret it and he must apply it to the facts.

His guidelines, if you will in that respect are exactly the same as the Criminal Court Judge and indeed less complete than the juror because the juror functions under instructions and charges given to him by the judge and indeed less complete than the grand juror who functions under judicial advise and prosecutorial effect.

Chief Justice Warren E. Burger: Now do you think they are all very completely spelled out in our Fourth Amendment decisions?

Ms Judith A. Gordon: What is spelled out in Fourth Amendment.

Chief Justice Warren E. Burger: The guidelines.

Ms Judith A. Gordon: Yes Your Honor but this.

Chief Justice Warren E. Burger: Not really.

Ms Judith A. Gordon: The guidelines are no more spelled out for the police officer than they are for the Judge and I think that that is the quintessence of it.

Justice Thurgood Marshall: Would it not be do subject to exactly the same examination than anybody else to find out whether he knew what the law was, whether he knew how to conduct himself and to whether he knew how to act in the name of the state.

Would he not have to pay the exact same examination.

Ms Judith A. Gordon: Yes Your Honor.

He would have to --

Justice Thurgood Marshall: And if he passed it and he was there on the list he could not get the job.

Ms Judith A. Gordon: That is correct Your Honor because the preeminent concern here Your Honor is whether the State when it seeks to enforce its sovereign powers shall have the choice of selecting from members of its own political community or whether it shall be compelled to select from members who are strangers to that community and who are members of another sovereign community.

It is a question of --.

Justice Thurgood Marshall: How were they strangers.

Ms Judith A. Gordon: Because by definition --

Justice Thurgood Marshall: They pay the same tax as you do.

Ms Judith A. Gordon: That is correct Your Honor.

But they are --.

Justice Thurgood Marshall: They live right next to you.

Ms Judith A. Gordon: That is correct Your Honor.

Justice Thurgood Marshall: And they goes to school with you.

Unknown Speaker: Ms. Gordon I take it.

I am repeating my question now here, opposition.

If we were concerned here with the New York City Police Department, you would be making exactly the same argument.

Ms Judith A. Gordon: Your Honor I think that is correct but I think that that is the exact limitation to which I would go.

For example, State Police Officers are said to perform the highest law enforcement function because of their statewide jurisdiction but they do enforce all of the penal law of the state of New York as well as some other criminal statutes.

A police officer in a metropolitan police district while his geographic area would be narrower equally enforces the full panoply of the penal law within that jurisdiction.

Unknown Speaker: Do you know whether the statutes or whatever it is that govern the New York City Police Department require that officers be citizens.

Ms Judith A. Gordon: Yes, Your Honor.

Unknown Speaker: So you would do -- would you do the same thing or the two man police force in small town in up street New York.

Ms Judith A. Gordon: First of all Your Honor, the Administrative Code of the City of New York does in fact require police officers of the City of New York to be citizens and there was a case pending called Franko versus Bronstein (ph) on that issue in the state courts at the moment.

I would argue that the limitation would be applied in this way.

To the extent that the officer has full powers of arrest and must make judgments with respect to the broad guidelines such as are encompassed in the penal law.

I would suggest that he would be a appropriate person -- He would define a class of positions from which aliens can be excluded, although, we do not of course, necessarily reach that issue in this case.

It is his powers of arrest, his powers of search.

Unknown Speaker: I am very much aware we do not reach it in this case but I am trying to find out the extent of your argument.

There are other states that do not have this kind of a requirement.

It is happen so.

Ms Judith A. Gordon: Well that is an open somewhat question Your Honor.

We performed a survey at the request of the court and it appears that at least 34 States have the requirement.

The original 29 listed by in the opinions of the lower court plus New York and California which were not included plus several other states which operate by regulation, that is not to say that the balance of the states do not have similar limitations, it is only to say that in the course of our endeavors and apparently as verified by the FBI, they were not in statewide statues.

It is of some interest Your Honor to point out that while there would appear to be some states that do not have that limitation.

91 percent of the aliens live in States that do in fact have that limitation and accordingly I do not think that we could infer much from those states which might operate Police Departments without the limitation when in fact their alien population is so small as to not have a particular impact.

Unknown Speaker: You know the what the origin is of this past number of New York statutes that describe citizenship, for masseurs, barbers, everything else.

Do you know the historical basis for this.

Ms Judith A. Gordon: Your Honor, I had occasion to review most of those statutes following this court's opinion in Dougall versus Sugarman and it is my understanding that their backgrounds are various and that they are variously justifiable.

This particular statute that we are concerned with is it seems to me a common sense matter of history and tradition.

New York State has always required its Police Officers to be citizens and I believe that the support for that comes.

Unknown Speaker: No I do not think that is responsive to my question.

I am asking if you know they are (Inaudible) of these many multiple New York requirements, and I take the answer you do not.

Ms Judith A. Gordon: I do not Your Honor.

Justice Harry A. Blackmun: This one was enacted in 1917.

Ms Judith A. Gordon: Yes Your Honor.

Justice Harry A. Blackmun: In the middle of World War and shortly before we edited, correct.

Ms Judith A. Gordon: Yes that is certainly the case and certainly the traditional local police forces in the state naturally goes back much further and it is quite apparent, the city of New York for example, I think much predates.

Justice Harry A. Blackmun: But you did not have a State Police Force until 1917.

Ms Judith A. Gordon: No not that I am aware of in the form of sense that we have talked about it.

Justice Thurgood Marshall: Ms. Gordon, your answer to my brother Blackmun's question suggest that you necessarily be dealing with the total of 50 State Police Forces similar to New York with respect to alien requirements.

I know of my own home state of Arizona which is vigorously eschewed the idea of any sort of a state police force.

They have a state highway patrol which simply enforces traffic offenses and it is my understanding that there are other states like that too.

So that you do not have 50 States who have a State Police Force like New York.

Ms Judith A. Gordon: That is correct and for example, California which does require citizenship for its State Police Officers, apparently does not require citizenship for its State Highway Patrol and possible elaboration of Mr. Blackmun's comment before the division of New York Police is not divided into a Highway Patrol, a specialized division covering more significant matters in a uniform force.

It is one division encompassing three functional units, namely the uniform force which provides a first line response and it consist of officers who go out and arrest and search and perform all the functions we have discussed.

One of those units is a through way patrol unit but its functions are not limited to giving tickets on the New York State through way, rather it has the criminal jurisdiction for that through way and it arrests and searches and may stop and give highway tickets but performs all functions of enforcement within that geographical area.

On addition, I would comment that while the BCI, the Bureau of Criminal Investigation is a plain close unit and it does have a specific state security function, its powers and it is pursuit of its investigations.

In other words, the exercise of its powers in the pursuit of its investigation is no different than the response required of the uniform officer who makes up the uniform force.

One last aspect on that would be that the governance detail perhaps akin to the secret service of the United States is itself a branch consisting essentially of uniform officers with several BCI personnel.

So that there is no allocation of higher and lower functions within these three essentially functional units of that department.

Chief Justice Warren E. Burger: If you do not prevail here.

If your friend prevails and reverse, do you think New York can keep these aliens off of the juries.

Ms Judith A. Gordon: Well, Your Honor.

Chief Justice Warren E. Burger: Or do you see no connection between them?

Ms Judith A. Gordon: Now It seems to me regardless of the outcome in this case that New York would be able to keep aliens off of juries as it-- that has a law on that point because of this court's decision in Perkins versus Smith.

Chief Justice Warren E. Burger: How about voting?

Ms Judith A. Gordon: MBut it calls, I was just to going to say that Your Honor, it calls into very serious question, the basis for making analytical distinctions within governmental offices.

For example, if as this court has at least impliedly held in its held in its prior decisions, voting and legislating can be functions consigned to citizens, even though the voter is remote from the law making process himself and his vote maybe one in millions in any given state or general election.

One to hold for the appellant it would appear to me, one would have to find that the police officers exercises for these extraordinary powers of his arrest and search, of his use of force, indeed, deadly forces power over life and death of any individual on the society, in the name of state is somehow less important that that voter's vote.

I do not think that that can possibly the -- an analytically sound distinction and accordingly it would appear to me as we have argued that once we determine that the juror performs a governmental office such that citizenship maybe required of him, we then must likewise find that the police officer similarly performs functions of significant and governmental nature such that his class may likewise be close to aliens.

I think by the way that this is one of the force of the dissent below.

The dissent characteristics voting and legislating as political.

It eschews the same characterization obviously for the police force and I do not think that that distinction again can be made because in a government of three equal branches, we cannot designate voting especially under the circumstances as I outlined, where it may have very little, if any potential ramification as more important that law enforcement.

Law and enforcement as we designated as more important then are the judicial function of interpreting the law and I think this is one of the erroneous assumptions that the dissent below makes.

I would say, several other points with respect to that dissent and that is with respect to the issue raised by Justice Mansfield and I think briefly by Justice Marshall before, that is aside from the designation of a class of officer holders is there anything about the alien by virtue of his status which makes him peculiarly unsuitable to perform the functions of police and while we all urge this is a secondary matter.

We believe that there are in fact such situations.

For example, the alien cannot vote.

To call upon him then for the vigorous enforcement of the law, laws which he has no voice in creating would appear to be egregiously anomalous.

Unknown Speaker: Or is that that was true in re Griffiths set that

Ms Judith A. Gordon: That is true.

Unknown Speaker: Anomaly of it be one.

Ms Judith A. Gordon: That s true except we do not ordinarily consider the attorney qua attorney as a law enforcer.

He may appear and for that reason he is not an officer.

Certain attorneys may indeed the governmental officers but not all.

Justice Thurgood Marshall: That would also apply to 70% of the elector who do not move.

Ms Judith A. Gordon: That is correct Your Honor but it is the capacity to be able to vote rather than that is an issue and aliens are incapacitate from doing so.

In addition it is a illustrative.

Unknown Speaker: What about those state officers who make the decision whether to prosecute or not?

Ms Judith A. Gordon: That may very well be one example of the attorney who was a governmental officer but I do not think the attorney's, the prosecutor's decision not to prosecute in a case, seemingly is akin to the police officers decision not to arrest and accordingly if we were to say that the prosecution --.

Unknown Speaker: Now what about the decision to prosecute.

If you got the power to decide that whether or not to bring a criminal charge that could result in life imprisonment or death, what about prosecutors, may they be aliens in your state?

Ms Judith A. Gordon: The issue was not yet been presented but it would seem to me Your Honor that one could fairly argue that they should that that should class should be limited to citizens because that power to -- use of the coercive of power of the state which is what the prosecutor does when he seeks indictment or files any information would seem to me to governmental and arguably limited to citizens, however the police --.

Unknown Speaker: And judges are Judges in the --.

Ms Judith A. Gordon: Judges are by law both Federal and State law Your Honor, public officers and are limited to citizens.

However, I would call to Your Honor's attention that while the prosecutors functions are drastic, perhaps the police officer's functions are even more drastic.

We do not normally have the situation where prosecutor must make an assessment as to how much force or deadly force to use in a given situation.

The state police officer exercises that function because he is indeed the representative of the state.

Chief Justice Warren E. Burger: In other words, the prosecutor has no discretion to pull the trigger and shoot someone under any circumstances but a policeman has it under many.

Ms Judith A. Gordon: Where that is the very activity or very power that is vested in the policeman, that is correct. Returning for a moment to the other characteristics which aliens have which we believe make them unsuitable or those which evidence that his citizenship to another sovereign and his subjections to the laws of that sovereign.

For example, an alien in the United States maybe conscripted by the country of his nationality.

However, in the United States he may plead treaty exemption, he may plead International Law, he may change his immigration status and avoid the draft in military service in the very country who people like appellant suggest have the laws which they with to enforce.

I think that is sufficient Your Honors.

Thank you.

Chief Justice Warren E. Burger: Mr. Weiss, do you have any further.

Rebuttal of Jonathan A. Weiss

Mr. Jonathan A. Weiss: Yes.

First as to where there are some Police Department who do not have the -- They have corrected and some are mentioned in Footnote four, with Judge Mansfield dissent.

I would just like to focus briefly on the question of sovereignty and relationship to taking an oath which we discussed in re Griffiths.

It should be noted by the way in passing that aliens who are in the army also serve the military police there.

So that aliens who pay taxes, who are subject to draft, who protect the government security, also protect the internal security inside the army which would seem to be a fairly strong analogy as good as --.

Chief Justice Warren E. Burger: Are you suggesting that the army, the military services could not exclude aliens from military police duty.

Mr. Jonathan A. Weiss: No, I am not suggesting, I am saying they do not Your Honor.

Chief Justice Warren E. Burger: That is under choice and discussion.

Mr. Jonathan A. Weiss: Yes, but that was issue as to whether or not there were police departments which in fact continued because of the uniform policy across the country.

This is illustration of a sovereign United States, that has chosen not to make a exclusions. The issue pertains to the army but of course, the much more difficult issues than in this case, these are both Federal and also national security but in terms of the congressional statement implicitly as to the reliability of aliens who served in a police force this would be a fairly powerful implication.

The discretion that a police officer has is not a political discretion, it is not a policy discretion, it is a discretion different in function and in nature, those acts and count thought of in the Dougall suggestion.

What you have there is political decisions to the policymaking sort, what you have here are factual applications.

It functions inside a give framework rather than gives the framework.

It functions in terms of facts rather than in terms of competing public policies.

As far as the representation of a sovereign by a police officer, I think it would be demeaning to this profession, if we would suggest that a police officer is more of a representative of the law, speaks more of the law than a lawyer.

A lawyer is an embodiment to the citizenry as all the law.

He speaks for the law to the citizen, he speaks through the law.

He is an all sort of the court.

So whatever degree, there could be some implication that the sovereign appearance of people acting on behalf of the state to exclude aliens that would apply much more strongly to lawyers than to police officers and that is a case which this court has already included its opinion.

Chief Justice Warren E. Burger: And of course lawyers can make arrests per se, can they?

Mr. Jonathan A. Weiss: They cannot but the police officers cannot be no republics, file affirmations in court and do the all sort of things.

Chief Justice Warren E. Burger: Well they might have, if they became notorious public.

Mr. Jonathan A. Weiss: They would have they have kind of different status to do it.

They still not be able to make affirmations.

Chief Justice Warren E. Burger: What is your view of the so called citizens arrest which has been (Inaudible) if not our law, would an alien not be able to make a citizens arrest.

Mr. Jonathan A. Weiss: I would not know the answer to that.

I would suggest that whatever agree this liability to the citizens arrest, which I do not think there is much anymore that a lawyer would not have particularly a higher role in that than anyone else.

And that if it is defined if a citizenship is, although an alien could not.

Justice Thurgood Marshall: Do you think an alien can make a citizens arrest?

Mr. Jonathan A. Weiss: I would think not by definition.

May a residents arrest.

I am not sure anybody could make one but I assume by definition, not.

Thank you very much.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.