HOLT CIVIC CLUB v. TUSCALOOSA

Transcript: 

Argument of Edward Still

Chief Justice Warren E. Burger: We'll hear arguments first this morning in 77-515, Holt Civic Club against The City of Tuscaloosa.

Mr. Still, you may proceed whenever you're ready.

Mr. Edward Still: Mr. Chief Justice, and may it please the Court.

This action was heard by a three-judge District Court which was empanelled to hear a challenge to the constitutionality of an Alabama statute which empowers and directs each city in town in Alabama to exercise its police power within a one-and-a half or three-mile zone around the city or the town.

The adverse decision of the District Court against the plaintiffs was appealed to this Court under 28 USC Section 1253.

The Court reserved the question of jurisdiction and we have briefed that extensively.

And, if the Court does not have any further questions on that point, I'll move on to the merits of the case.

Justice William J. Brennan: Mr. Still, how old a statute is this Alabama statute?

Mr. Edward Still: The statute was passed in the early 1900s, one of them, a second one was -- I believe it was 1907.

A second one was passed in 1927, and I'm not sure about the third one.

Justice William J. Brennan: So, they're pretty old statutes to be challenged at this late date, aren't they?

Mr. Edward Still: They are old.

Justice William H. Rehnquist: You say, counsel, that the statute empowers and directs the municipal corporations of the cities to do these particular things.

Is that where the -- would you make that claim that it both empowers and directs with respect to each of the legislative activities that we're talking about here?

Mr. Edward Still: You mean the legislative activities of the city or the three statutes?

Justice William H. Rehnquist: Of the city.

Mr. Edward Still: Yes, sir, I believe that it does because Section 11-40-10 which is the primary police jurisdiction statute, contained in Addendum (b) to the brief, the grey brief, says that ordinances of the city or town shall have force and effect in the limits of the city or town and so, that is a mandatory statement there and I believe that they would have effect whether the city intended them to or not.

Now, city force might choose not to send its police out, but I believe that it is mandatory under state law.

Justice William H. Rehnquist: What page is Addendum (b) in the grey brief?

Mr. Edward Still: It is about three pages from the back of the grey brief, Your Honor.

It is, I believe, (b) (1) is the page.

Chief Justice Warren E. Burger: Of your first brief?

Mr. Edward Still: Of the grey brief, Your Honor, of the brief of the appellants.

That contains the new language of the statutes.

There's been a recompilation of the Alabama Code since we originally filed the suit, but the text of the statutes has not changed materially.

Justice William H. Rehnquist: It said in the second paragraph of the -- of Section 11, after defining the police jurisdiction, the second paragraph begins "ordinance of a city or town enforcing police or sanitary regulations."

Can't that just as readily be read to read "choosing to enforce regulations" as "being compelled to enforce regulations"?

Mr. Edward Still: No, sir, Your Honor.

I believe that that statute has been interpreted in Alabama as defining a class of statutes.

Police ordinances and sanitary ordinances are two classes of ordinances.

Other types might be financial regulations of the city, internal regulations of the city, for one reason or other, or zoning regulations.

Under Alabama law, zoning regulations are not police ordinances and so, in that way, this is a way of differentiating police and sanitation regulation, sanitary regulations from, say, zoning regulations or other types of ordinances that would not have an extraterritorial effect.

Justice Potter Stewart: It's descriptive in other words.

Mr. Edward Still: Yes, sir, it is descriptive of a class of ordinances.

Justice Potter Stewart: Any ordinances falling into those categories are effective and within the extraterritorial police jurisdiction of the municipality.

Yes, sir.

That is the way the statute has been interpreted in Alabama.

Justice William H. Rehnquist: Your can -- is the case that interprets it that way cited in your brief?

Mr. Edward Still: Yes, sir.

I believe that we cite both the City of Montgomery versus Roberson case and White versus City of Decatur.

City of Montgomery versus Roberson was a case that dealt with the power of the City of Montgomery to zone in its extraterritorial jurisdiction and the Alabama Supreme Court went into statutory construction in great lengths there to explain that these were just ways of describing certain classifications of ordinances and that zoning was not a police power within the normal meaning of the term as far as cities go because we had to pass a special law allowing cities to zone in Alabama.

It was not considered to be in the normal grant of powers to cities by the State of Alabama.

The case alleged both due process and equal protection grounds in the original complaint.

We have briefed the question of due process and you will notice that we have cited only two cases, and that is United States versus Texas and United States versus Alabama, Judge Johnson's concurring opinion there.

The question of due process is so fundamental that it generally has not had to be raised in voting rights cases and, yet, if we think about it, the process that is due to all of these citizens is that if they are governed, they should be allowed to have some voice in the government over them.

The question is usually not presented to this Court in a due process context, but I believe that it should be in this case because even ignoring a comparison between the -- what the City of Tuscaloosa does to its citizens and what the City of Tuscaloosa does to the people in the police jurisdiction, the fundamental question under due process would be what should it do to the people in the police jurisdiction if it does not allow them to vote.

It is --

Justice William H. Rehnquist: What if the State of Alabama provided that the City of Tuscaloosa shall be governed by a five-man commission appointed by the Governor of Alabama so that the city -- the residents within the city boundaries of Tuscaloosa would have absolutely no say in the composition of that commission.

Would that be a violation of due process?

Mr. Edward Still: No, Your Honor, I do not believe that it would because, in that case, the city -- the state would have essentially abolished local government except through commissioners of some sort, agents that it appointed from the central government.

It has done that in the past with the Port of Mobile in the late 1800s.

I think that would be a fundamentally different situation here than one in which there is a local government which is elected and in which these people are not allowed to participate.

The boundary between the due process and the equal protection which it is --

Justice William H. Rehnquist: Yes, that boils down almost to an equal protection claim.

If you say that citizens in Tuscaloosa can vote but citizens in the police jurisdiction can't vote, it seems to me that's more of an equal protection claim than a due process claim.

Mr. Edward Still: Yes, sir, and that is the question that we have briefed most extensively but, as I said, the question usually does not arise even that it's a due process claim, but we have raise that in this case and I think it is a sufficient grounds.

Justice Potter Stewart: It's arisen a good many times.

I think, before I came in the bench this morning, I glanced over and I -- it's not an article, it's a comment in the Chicago Law Review of last fall, in which it has pointed out that some-35 states have this sort of system, in whole or in part, and that it dated back to the late 19th Century and that, repeatedly, due process attacks on extraterritorial government by municipalities were rejected.

Mr. Edward Still: Yes, sir, Your Honor, they were.

Justice Potter Stewart: Perhaps it isn't quite so obvious as you indicate.

Mr. Edward Still: Well, I was talking about a more recent --

Justice Potter Stewart: The article went on to say, I should say, if -- in your behalf that, in the ling of the modern developments of the equal protection law, the result might be quite different.

Mr. Edward Still: Yes, sir.

I think that it might.

Most of those challenges were raised, as you point out, in the late 1800s at a time when we didn't--

Justice Potter Stewart: Well in the early years of this century anyway.

Mr. Edward Still: Yes, sir, or the early part of this century.

The equal protection questions is, I think, a fundamental one that we're dealing with here, as the Chicago Law Review comment pointed out, there are 35 states that has some-sort of extraterritorial power for their cities.

Only four states: Alabama, Montana, North Dakota, and South Dakota have full police power extraterritorial jurisdictions.

The rest of them allow some sort of zoning or some sort of business regulation or nuisance regulation in an extraterritorial zone, but the full-fledged police jurisdiction that we're talking about in this case is only in four states.

The equal protection question, first of all, the first mater that we get to in that regard is, what is the proper standard of review?

The City of Tuscaloosa has raised the point that the -- only a rational relationship must be shown between the means and the end that the state has chosen, and they cite for authority on that point Salyer Land Co. versus Tulare Water Storage District.

That case utilize such a test, a rational relationship test, rather than a strict scrutiny test because this Court first determined that the Tulare District was not a general purpose government and, therefore, the strict scrutiny rule did not apply because it was not really the right to vote in the fundamental sense, that we know it, that was involved in the case.

The City of Tuscaloosa is not such a limited purpose government in the police jurisdiction.

The only things the city cannot do in the police jurisdiction that it can do in the city limits of Tuscaloosa is collect ad valorem property taxes and to zone, as I pointed out a moment ago.

It may also collect only one-half of the usual license fee that it charges inside the city.

Justice William H. Rehnquist: If the City of Tuscaloosa were to attempt to enacts the police jurisdiction, would some sort of consent on the part of the residence in the police jurisdiction be required, some sort of a referendum?

Mr. Edward Still: Some sort of consent is required under Alabama law, Your Honor.

The statutes provide for three or four different methods, each one of them either requires a referendum among the affected voters residence of a particular area or their consent on a petition.

There are different statutes for different cities, but every one of them requires both the consent of the city and the consent of the affected voters in a particular area.

Now, in some cases, there are additional requirements.

Justice William H. Rehnquist: What if in this situation the city had sought to enacts the police jurisdiction that you're complaining about and the citizens in the affected area had refused to be enacts.

Would your case be any different?

Mr. Edward Still: No, sir.

I don't believe so.

The city is constantly growing.

As the city has pointed out in their brief, it's grown about quintupled in size over the last 25 years or so.

The -- I don't think that the case is any different if these people had been given a choice about whether they wanted to be in the City of Tuscaloosa and chose not to be because they are still treated differently than the people in the City of Tuscaloosa.

Justice William H. Rehnquist: Well -- but doesn't the ci -- doesn't the State of Alabama have some concern with the added law enforcement problems right around the ring of an urban area that enable it to do some things that it might not be able to do way out in the country?

Mr. Edward Still: Yes, sir.

I believe that the state may have a legitimate concern.

But, either under the rational relationship test or the compelling state interest test, we've got to look at the end that they're seeking which is protection of these people from marauders of various sorts by the police and the means that they chose to do so.

The means that they have chosen to use in this particular case are to allow a different government that these people do not have a vote in to govern them, and that's the due pro -- that's the equal protection question and he due process question.

We're not attacking the end of the regulation, the state saying that these people need some sort of protection.

We are simply attacking the means by which they have done it because, as the Chicago Law Review article or comment pointed out, there are many different ways in which these people who live in areas right outside cities could be governed.

As I pointed out, 46 states do not have the type of jurisdiction that we're talking about in Alabama.

So, they have figured out some way to protect these people without depriving them of the right to vote by the government that is supposedly protecting them.

There are 15 states that have no sort of extraterritorial jurisdiction at all.

They utilize such things as township governments or direct police protection by the county government.

Now, I think those things could be used in Alabama under the Alabama constitution, not -- perhaps not townships per se, but direct government by the county government could be used.

Justice Potter Stewart: You rely primarily on the reapportionment cases in this Court, don't you?

Mr. Edward Still: Not so much the reapportionment cases, Your Honor, but that line of cases beginning with Kramer versus Union Free School District which are not so much reapportionment cases as they are voting rights cases.

Justice Potter Stewart: Yes.

And, in Kramer, the complaint was that that unmarried man, if that's what he was, was not allowed to a vote in a School Board election.

Mr. Edward Still: That's correct, Your Honor.

Justice Potter Stewart: In that School Board election in the State of New York, as I remember it.

Mr. Edward Still: Yes, sir.

Justice Potter Stewart: What he asked for in his complaint was that he be allowed to vote, wasn't he -- wasn't it?

Mr. Edward Still: Yes, sir.

He was seeking the right to vote in that particular case.

That's because that was the only practical remedy.

No matter what he did, there was no way he could isolate himself from the pervasive effects of a school in our society today.

That was the whole basis of the Court's decision.

Justice Potter Stewart: And he was going to be taxed if the tax levy or bond issue was passed by the --

Mr. Edward Still: Well, he was going to be taxed indirectly.

He did not own any property to be taxed.

Justice Potter Stewart: He was a tenant, as I remember.

Mr. Edward Still: That's right.

He lived with his parents and he was a non-property owner.

Justice Potter Stewart: I don't --

Mr. Edward Still: And so --

Justice Potter Stewart: You may remember I dissented in that case, so I don't --

Mr. Edward Still: Yes, sir, I do.

Justice Potter Stewart: But, in any event, the relief he was asking was that he be allowed to vote.

Now, the relief you're asking is that this whole extraterritorial jurisdiction be held to be totally invalid, isn't it?

Mr. Edward Still: Yes, sir.

That's correct, and that's because we have a choice in this case which no one else has had as a practical matter.

Mr. Kramer, as I said, didn't have any practical way to pull himself out of society and say the schools aren't going to affect me.

Cipriano in the City of Phoenix case was going to be affected by the utility rates no matter what he did.

As long as he was hooked up in -- directly or indirectly to the city's utilities, he was going to be paying for the bond issue that the property owners were passing.

In Evans versus Cornman, the only practical thing to do was to extend the right to vote to those people who lived out at the NIH enclave in Montgomery County, Maryland because if you had said “well, Maryland must withdraw their authority over them, you would've had to have declared unconstitutional the Federal Assimilative Crimes Act and several other federal Acts, an entire federal scheme of regulation.

Justice Potter Stewart: But, in any event, those cases would seem to indicate that the constitutional injury perceived by the Court was in prohibiting those plaintiffs from voting.

Mr. Edward Still: Yes, sir.

Justice Potter Stewart: And, that was the constitutional injury.

Now, you don't allege any such constitutional injury.

Mr. Edward Still: Yes, sir, we allege the flip side of that because these residents of the Holt area are not allowed to vote, they -- and, they are governed then they are deprived of a constitutional right.

Now, we have a choice --

Justice Potter Stewart: Mr. Still, you're not asking for redress for that constitutional injury.

You're not allow -- asking that you be allowed to vote.

Mr. Edward Still: No, sir.

We did not ask for that in the complaint, but I think that the Court -- District Court could have granted that particular relief if it had found that we have stated a cause of action.

I think that it also, as a practical matter, could have granted the relief that we sought because that relief would actually be less disruptive of the state's regulatory system than would extending the right to vote.

Justice William H. Rehnquist: Well, in Reynolds against Sims, could the Court have granted the relief of relieving the City and County of Denver of any jurisdiction of the State of Colorado?

Mr. Edward Still: No, sir, I don't believe that they could.

Justice Potter Stewart: It was Lucas --

Justice William H. Rehnquist: Why is that --

Justice Potter Stewart: Lucas against 44th General Assembly.

Mr. Edward Still: Yes.

Justice William H. Rehnquist: Lucas, yes.

Why is that different from this?

Mr. Edward Still: Because, in this particular case, if we remove the City of Tuscaloosa's jurisdiction over these people, they will still be governed by the County of Tuscaloosa and by the State of Alabama and, yet, they will not be governed by the City of Tuscaloosa.

So, we actually have a practical choice that could be made in this case between the remedies.

But, as I say, if the District Court had found that we've stated the cause of action, had allowed us to go to trial and it found that we prevailed, it could have ordered a remedy of saying we declare the statute to be unconstitutional and we give the state legislature one year to come up with a new statute, and if it doesn't, then we will undertake to do something ourselves.

In much the same way that many times Reapportioning Courts have done so, they've declared the present scheme unconstitutional and then deferred to the state legislature to do so and, in fact, this Court requires it to do so if at all practical.

Justice Potter Stewart: But your lawsuit is analogous to what those voting cases and reapportionment cases would have been had the plaintiff in the reapportionment cases said this legislature is mal-apportioned, therefore, anything it does is null and void.

It's an invalid legislature, and the Court, at least by some reaction, has declined to accept the proposition that a mal-apportioned legislature cannot legislate.

Mr. Edward Still: Yes, sir, Your Honor.

And, in those cases in which people actually did claim that a mal-apportioned legislature did not have the power to legislate --

Justice Potter Stewart: We've had cases, for example, where a mal-apportioned legislature has enacted laws and those laws are attacked as invalid because they were enacted by an unconstitutional legislature and the Court, I don't remember any opinions dealing with it in a plenary way, but the Court, at least by some reaction, has rejected those claims.

Mr. Edward Still: Yes, sir, but in many of those case -- reapportionment cases, the -- I believe the plaintiffs, in addition, sought to have the present legislature just removed from office immediately and that--

Justice Potter Stewart: Well, they sought to ask this Court to hold constitutionally invalid state laws enacted by concededly mal-apportioned legislatures.

Mr. Edward Still: Yes, sir.

The point that I'm trying to make is just because you ask for the wrong remedy in your initial complaint, doesn't mean that that complaint is invalid.

If you state a cause of action --

Justice Potter Stewart: But, often, the remedy identifies the constitutional injury about which you're complaining?

Mr. Edward Still: Yes, sir, and we have identified the constitutional injury as these people being governed and not being allowed to vote.

Justice Potter Stewart: Well-- so, the -- if the constitutional injury is that you're not being allowed to vote then the redress for that injury is that you be allowed to vote.

Mr. Edward Still: It may be that the Court -- the District Court will hold that.

It may be that this Court will hold that.

We will accept that kind of remedy because, I think, if it happen that the State of Tusca -- that the State of Alabama would remedy that situation very quickly by passing a new statute, probably abolishing the police jurisdiction, but there are approximately 16,000 people who live in the police jurisdiction of Tuscaloosa.

There are 116,000 -- excuse me, there are 70,000 people who live in the City of Tuscaloosa.

We're talking about expanding the City of Tuscaloosa by one-fourth, approximately, by judicial fiat if you hold that these people have the right to vote.

We say it would be much less disruptive --

Justice Thurgood Marshall: Where do you get the judicial fiat when you got a state statute involved?

Mr. Edward Still: Excuse me, Your Honor?

Justice Thurgood Marshall: It's not the decision of this Court that would do it.

It's the state statute that would do it.

Mr. Edward Still: Yes, sir, but I'm saying that --

Justice Thurgood Marshall: Am I right?

Mr. Edward Still: Yes, sir, but I'm saying that the Court has a choice.

Justice Thurgood Marshall: And what you want us to do is to find that this state statute is unconstitutional and then dream up a remedy for you.

Mr. Edward Still: No, sir, I'm not asking this Court to --

Justice Thurgood Marshall: And, I mean dream because you haven't told us yet what you want, have you?

Mr. Edward Still: Yes, sir, I have.

We have asked that the --

Justice Thurgood Marshall: Or try it again toward the end?

Mr. Edward Still: I have asked that the city's jurisdiction over these people who do not live inside the City of Tuscaloosa be removed from them, that the City of Tuscaloosa are not being allowed to govern them.

Justice Thurgood Marshall: And how do you do that?

Mr. Edward Still: You simply tell the City of Tuscaloosa they can't send their police into that area anymore and they can enforce the order.

Justice Thurgood Marshall: It's your injunction?

Mr. Edward Still: Yes, sir, I believe that you could.

Justice Thurgood Marshall: Well, did you ask us to?

Mr. Edward Still: Yes, sir.

The original complaint --

Justice Thurgood Marshall: Did you ask it before right now?

Mr. Edward Still: Yes, sir.

The original complaint, if you'll look in the complaint, it asked that an injunction be issued to -- enjoining the enforcement of the police jurisdiction statute, the main police jurisdiction statute, and declaring two additional police jurisdiction statutes to be unconstitutional.

It doesn't ask that they'd be enjoined because believe that they are dependent upon the main police jurisdiction statute.

Justice Thurgood Marshall: And whatever they said you put on.

Mr. Edward Still: We have never been allowed to put any evidence on in this case.

It was dismissed by a single-judge District Court.

The Fifth Circuit reversed the case, sent it back to be heard by a three-judge District Court.

The three-judge District Court then dismissed on another motion to dismiss.

There is some evidence in the file in this case and the record in this case because we didn't take discovery and, presumably, the District Court did look at that, but it never mentioned it in its particular opinion.

Justice Thurgood Marshall: But you did have discovery.

Mr. Edward Still: Yes, sir.

We did take discovery.

The case was pending for three years in the District Court in two different times.

Justice Thurgood Marshall: Well, I notice you put great weight on the fact that you said embodied your complaint and, for other relief, you're not relying on that, are you?

Mr. Edward Still: That, Your Honor, is a standard way of doing things in Alabama but, as I pointed out, the federal rules of federal procedure allow the Court to grant such other relief as it may find proper.

If we have stated a cause of action before we get to the "where for" --

Justice Thurgood Marshall: That's just what I -- a minute ago, I used the word "dream up."

That's what you want the Court to do.

Mr. Edward Still: No, sir.

I'm not asking the Court to dream up.

I ask for a specific remedy and I think that --

Justice Thurgood Marshall: And are you limited to that now in your argument?

Mr. Edward Still: No, sir.

I don't believe it were limited to that because I think, under the Federal Rules of Civil Procedure, the Court is allowed whether I ask for such other further equitable relief as may be granted.

I think the Court is allowed to fashion such a remedy as would be equitable in the situation.

Justice Thurgood Marshall: Without any suggestion from you?

Mr. Edward Still: I believe that I --

Justice Thurgood Marshall: But you--

Mr. Edward Still: I have some right to make suggestions, but if the Court finds that I'm only entitled to (a) and I ask for (b), but (a) is encompassed within the cause of action that I ask for, that they will grant that sort of thing.

There are many cases in which people will ask for injunctions which, for one reason or another, might be barred by equitable principles or by the Constitution of the United States, Eleventh Amendment or something like that.

So, instead of issuing a mandatory injunction that says to the state "spend money," the Court come back and says "don't do this unless you do something constitutional."

They issue a prohibitory injunction.

Justice Thurgood Marshall: Well, what do you want us to do other than to issue these injunctions?

Mr. Edward Still: I want this Court specifically to reverse the case and send it back to the District Court which would then issue the injunctions and declare two statutes unconstitutional and enjoin the third statute from being enforced.

Justice Thurgood Marshall: And what else?

That's -- then satisfy you.

Mr. Edward Still: That would be sufficient, Your Honor.

That would be sufficient.

If --

Chief Justice Warren E. Burger: Mr. Still, when the Court noted probable jurisdiction in this case, as you've already observed, it indicated that four justices had enough doubt about jurisdiction so as to postpone the resolution, and you have elected to submit that on the brief.

I just want to be sure that you're content to do that.

Mr. Edward Still: Yes, sir, I am, unless -- but I'm certainly ready, willing, and able to answer questions if anyone has any on the jurisdictional question.

Justice Lewis F. Powell: Before you go on, may I ask your reaction to the authority of the state to authorize extraterritorial jurisdiction limited to police power and let's assume further that there was no power to impose taxes, merely the authority to send the City Police into the county.

Mr. Edward Still: Well, Your Honor, it's a little bit more than just sending the police.

They also get to enforce their particular ordinances.

So, they get to choose -- the City of Tuscaloosa gets to choose what will be enforced, what will be imposed upon the residents of the police jurisdiction.

So, in that way, they can impose not only their police force, their agency, but they could also impose their will upon these people.

Justice Lewis F. Powell: You're talking about speed limits and parking restrictions?

Mr. Edward Still: Yes, sir, that sort of thing and all sorts of business regulations.

Justice Lewis F. Powell: And what else, what about criminal laws and city ordinances?

Mr. Edward Still: Yes, sir.

They are quasi-criminal ordinances, is what they're called in Alabama.

I never had exactly understood the distinction.

You still go to jail.

Justice Lewis F. Powell: It's different from state criminal provisions?

Mr. Edward Still: Yes, sir, some of them are.

For instance, in Alabama, just to take an off-hand example, it's not -- prostitution is not illegal under Alabama law, but prostitution is illegal under Tuscaloosa City ordinances.

It's illegal to solicit for prostitution under Alabama law.

It's illegal to keep a body house, but it's not illegal to be a prostitute or to actually engage in an act of prostitution.

So, the City of Tuscaloosa gets to impose its will upon these people in an area that would not otherwise be governed.

They've got solicitation ordinances about charities.

We've got an appendix to the, I believe, the jurisdictional statement.

Justice Lewis F. Powell: I've seen it.

Mr. Edward Still: Which list all of the ordinances of the City of Tuscaloosa which, in effect --

Justice Lewis F. Powell: And the answer to my question would be the same even if no taxes were imposed on the residence of the county.

Mr. Edward Still: Yes, sir, I believe so because the police power is so pervasive.

Justice Potter Stewart: There are no taxes involved here.

Mr. Edward Still: No, sir, there are no taxes.

There are some license fees that are collected.

Justice Potter Stewart: License fees.

Justice Lewis F. Powell: Well, I was thinking of the license fees.

Mr. Edward Still: If it please the Court, I would like to reserve the remainder of my time for rebuttal.

Thank you.

Argument of J. Wagner Finnell

Chief Justice Warren E. Burger: Mr. Finnell.

Mr. J. Wagner Finnell: Mr. Chief Justice and if the Court please.

I first would like to more fully answer some of the questions that had been proposed by this Court.

For instance, the -- Mr. Justice Powell asked the question "suppose this will confine two police powers in the extraterritorial aspect."

Well, I say that it is so confined because, well, it's police insani -- ordinances of a police insanitary nature, maybe effective both within the city and within the police jurisdiction.

I know, really, other than the fact that the Court, the Municipal Court which is the same as the District Court in all respects, has jurisdiction out in this area, and that may be an aspect of police power but it -- other than that, I know of no other powers that are granted in the police jurisdiction.

As the Court, some of the members, have pointed out, there's no authority to tax.

There's no authority to charge a business license outside or privilege license for the purpose of general revenue.

Now, that's been clearly held by the Alabama Supreme Court.

Of course, within the city, you can't license for general revenue purposes and the business, the establishment, cannot contest on the ground that it's more than the cost of services might be.

But, outside the corporate limits, the Alabama Supreme Court has very carefully limited that to a charge commensurate with the cost of the services rendered.

That's been going on since 1881 in the City of Van Holt versus Selma.

The Supreme -- they were then making charges outside of the corporate limits and, there, the struck down an ordinance that made a charge more than the reasonable cause of promoting the health welfare and wellbeing of those persons in the police jurisdiction.

Later, when the so-called authorization to tax, it's been cited here many times, was adoptive of the state legislature in 1927, that's when it was adopted in another case which I don't have before me.

It's in my brief.

Squarely ruled on it and the Court held that this added nothing to the authority of a municipality to license within the police jurisdiction.

All this authorized --

Justice Potter Stewart: As I understood, Mr. Finnell, of course --

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: Police power has at least two meanings.

There's the constitutional meaning of meaning the state's reserve power to enact legislation within its appropriate -- within the appropriate reserve powers of the states and that's often compendiously known as the police power of a state.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: I understood my brother Powell's to -- question to be more limited that is, supposed it had been confined only to sending the city policemen out there, and that's quite a much more limited concept and was pointed out by your brother on the other side that this would involve also the extension of legisla -- of the city's legislative power out into the police jurisdiction.

Mr. J. Wagner Finnell: It does.

It --

Justice Potter Stewart: When you say this is confined to the police power, you're perfectly accurate and, if that term is understood as being the appropriate power of the municipality to govern itself, it's only part of the police power that is extended but it's certainly much more than simply sending the city policemen out there to enforce the law, the state law.

Mr. J. Wagner Finnell: Yes, certainly, it involves --

Justice Potter Stewart: It's an extension of the legislative power the municipality beyond its territorial limits.

Mr. J. Wagner Finnell: Absolutely, Your Honor.

It allows the ordinances that are effective within the corporate limits to be effective also outside and within a limited area.

Justice Thurgood Marshall: Mr. Finnell.

Mr. J. Wagner Finnell: Yes, sir?

Justice Thurgood Marshall: Suppose in the area outside of Tuscaloosa, which we're talking about, the people in a 14 sq. block area say, "look, we haven't seen a policeman in the last 14 years, and we need some policemen here."

How would they go about getting them?

Mr. J. Wagner Finnell: We had that complaint quite often, Mr. Justice.

Justice Thurgood Marshall: How would they go about getting them?

Mr. J. Wagner Finnell: They would call the police department or the police commissioner or simply come before the Commission Board, as they often do, and ask that the patrols be extended on a more regular basis.

Justice Thurgood Marshall: And if they refuse, what could they do?

Mr. J. Wagner Finnell: If they refuse to go into -- I don't think the city could be required to do that, Your Honor.

Justice Thurgood Marshall: Well, in -- the people inside of Tuscaloosa, couldn't they go one step further and say, "Dear Mr. Commissioner of Police, if you don't put them in there, we'll vote you out of office"?

Mr. J. Wagner Finnell: They could do that, Your Honor.

Justice Thurgood Marshall: Couldn't they?

And the people outside could not do that.

Mr. J. Wagner Finnell: No, sir, but --

Justice Thurgood Marshall: That is a difference, isn't it?

Mr. J. Wagner Finnell: Well, in the sense that if you're not talking about a person engaged in business --

Justice Thurgood Marshall: They'll come out and vote on it, a qualified registered voter.

Mr. J. Wagner Finnell: That's quite true.

They do not vote in the corporate limits, Your Honor.

They do not have that control.

Justice Thurgood Marshall: And they have no authority at all as to whether they shall have good or bad police.

Mr. J. Wagner Finnell: No, sir.

Justice Potter Stewart: Is there a county police force?

I suppose a county sheriff.

Mr. J. Wagner Finnell: There is a county sheriff and there is a county police force, and it is, of course, the duty of the sheriff to police in this area.

Unfortunately, in Alabama, maybe our laws are not as good as they should be, but the county has more or less been a caretaking institution.

The deputy sheriffs do get out, do actually get called outside, but they spend much of their time supporting the Court's issuing subpoena, that sort of thing.

For instance, our laws for the sale of alcoholic beverage limit the right to have on premises sales to the police jurisdiction for the simple reason that the city police are equipped and able to enforce that area.

Justice Potter Stewart: Does the county police have -- do they have jurisdiction within the city?

Mr. J. Wagner Finnell: Yes, sir, they do.

It's countywide.

Justice Potter Stewart: Countywide including within the city.

Mr. J. Wagner Finnell: Countywide.

As a matter of course, they take the position, "it's none of our business in the city."

"You take care of it because it's expensive."

Justice Potter Stewart: That's a matter of practical division of labor.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: But they do have jurisdiction in the city.

Mr. J. Wagner Finnell: Yes, sir, they certainly do.

Justice Potter Stewart: And is there a state police force?

Mr. J. Wagner Finnell: Sir?

Justice Potter Stewart: Is there a state police force?

Mr. J. Wagner Finnell: We have -- the state highway patrol also has jurisdiction.

Justice Potter Stewart: Only highway patrol.

Mr. J. Wagner Finnell: That's all.

Justice Potter Stewart: That is -- does it -- its name seems to imply that it has jurisdiction only of traffic offenses.

Is that correct?

Mr. J. Wagner Finnell: They have other jurisdiction.

They primarily concern themselves with traffic, yes, sir.

Justice Potter Stewart: So how --

Mr. J. Wagner Finnell: The highway patrol.

Justice Potter Stewart: I'm familiar with the State of Ohio which is very careful.

It does not have a state police force.

It has a state highway patrol with very limited jurisdiction.

Mr. J. Wagner Finnell: No, we have other police too.

We have the criminal investigation division in the State of Alabama and some of the enforcement people for their ABC Board.

They are the police-type officers of the state.

Justice Potter Stewart: Specialized.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: But there's no general state police force, as you -- I understand you to say.

Mr. J. Wagner Finnell: Other than the highway patrol, no.

Justice Potter Stewart: But its name certainly doesn't indicate that it's a general police force.

Mr. J. Wagner Finnell: In practice, it is not either, Your Honor.

Justice Potter Stewart: Right.

Justice William J. Brennan: Mr. Finnell, you mentioned liquor licenses.

I take it the location of places that may engage in the business of selling alcohol beverages outside the city itself but within the three-mile area, that's determined by the government of the city.

Mr. J. Wagner Finnell: Of course, they have to have a county license as well as a city license.

Justice William J. Brennan: But can the city prohibit a tavern from opening in a particular loc -- a particular part of that whole area?

Mr. J. Wagner Finnell: The city could prohibit the sale of liquor, a liquor license.

Under our peculiar law, the ABC Board, the state agency, is vested primarily with the control of all the alcoholic beverages.

But, the law does grant to the municipality the right to approve or disapprove the granting of an on-premises liquor license as such.

A Bill writes, "no, we could not prohibit it anywhere, except to plead with the ABC Board."

But, the liquor license, yes, it could be prohibited by the municipal corporation in that area or it could be prohibited by the ABC Board, and that's -- people often go to the ABC Board with that complaint.

Justice William J. Brennan: And, conversely, if both the city and the county grant a license for a particular location, the residents in the neighborhood have no place to complain.

Well, I guess, they complain to the county would be there.

Mr. J. Wagner Finnell: Complain to the county or they can complain to the ABC Board, which is often done, yes.

Justice William J. Brennan: State --

Mr. J. Wagner Finnell: State Board.

Justice William J. Brennan: What about decision in whether, in a particular part of the three-mile area, there should be one-way streets or what the specific speed limit should be and stop signs and that kind of thing?

That's all done by the city?

Mr. J. Wagner Finnell: The city can do that and does do it in certain cases, and I would like to -- in connection with that, Your Honor, I'd like to answer a question, too, about the annexation procedures in Alabama because I think they're tied together.

For instance, we have no right to annex proctor to the city unless, in all cases, unless some -- the majority, the property owners themselves, agree.

We have many more -- let's say, more than one, several areas where there's a highly developed industrial or business area community and down the main street on one side will be corporate limits, on the other side will be police jurisdiction.

Of course, you direct traffic there.

They're all bound by the signs and, even where it's not adjacent to the -- they do that where it's necessary to do so to some extent.

For instance, now, the industries, if you look at the interrogatories here, that looks like a whole lot of money.

It looks like a massive control when you just read what's in the code, what might be placed out there.

But, when you consider the fact that all of the industries which gather around the city have traditionally elected not to come within the city, for instance, the BF Goodrich Company recently magnanimously gave the city a half-acre to build a fire station on, which they did not to serve BF Goodrich but to serve all their corporate limits that have grown up to and around the plant.

Incidentally, that allowed the company to do away with their own individual fire fighting proceedings, but the purpose is to serve those residents of the city around there.

And so, these people get a great deal of benefit out of this police jurisdiction.

It's not a help to the city.

It doesn't -- financial help, actually --

Chief Justice Warren E. Burger: This has puzzled me a little bit, Mr. Finnell.

Ordinarily, these days, people are complaining about too much cost for too little service in terms of taxes.

Here, these people are getting a rather expensive amount of governmental service without paying for it.

Is that correct?

Mr. J. Wagner Finnell: I agree, Your Honor, and I think that explains the --

Chief Justice Warren E. Burger: It doesn't -- that doesn't decide the constitutional question.

Mr. J. Wagner Finnell: No, sir.

Chief Justice Warren E. Burger: But --

Mr. J. Wagner Finnell: It certainly explains, I think, though why there's no person that had -- pays a tax, engaged in the likes of businesses of plaintiff in this suit.

Not one of them have chosen to sue or complain about it.

Justice William H. Rehnquist: Mr. Finnell.

Mr. J. Wagner Finnell: Yes, sir?

Justice William H. Rehnquist: On page 11 (a) of the jurisdictional statement where Section 9 is set out, in the second sentence of that section where it says ordinan -- beginning, ordinances of a city or town enforcing police or sanitary regulations, is that construed in Alabama as requiring, if a city is going to apply an ordinance in a police jurisdiction, it must also apply it in the city.

It can't apply it just in the police jurisdiction?

Mr. J. Wagner Finnell: Mr. Justice Rehnquist, I've been a city attorney for over 25 years.

We have numerous ordinances on the book that say this ordinance shall be effective in the corporate limits.

That's never been questioned.

I know of no case that says we must enforce them outside.

I know of no case that rules that we can't -- the city can't limit the operation to the corporate.

I think if we were required, I think if we had the obligation, that point was brought up over here, "do you have to send the police?"

I don't think we could survive without any revenue, other than to be able to show any Alabama cases require that you not only must limit it to the reasonable cause but you must show, affirmatively show, that in adopting your budget or it would be deemed to be unconstitutional.

Justice William H. Rehnquist: But could the city con -- the converse of what you're saying, could the city decide that "we want to enforce a particular type of ordinance just in the police jurisdiction but not in the city?"

Mr. J. Wagner Finnell: I don't-- Your Honor, I would say no.

The wording of the statute itself says they shall have effect in the city and in the police jurisdiction.

I've never heard of that being done.

Chief Justice Warren E. Burger: If a liquor license or any other license is granted where the location becomes a factor and you say the City of Tuscaloosa reserves the right to issue that license, does the county licensing process get into the fixing of the location, too, or just the city?

Mr. J. Wagner Finnell: Primarily, I think it's a city.

Now, whether that's an abrogation on the part of the county of the responsibility, I'm not sure.

I think, though, it is the city is the one that makes the investigation, has the police investigation, the sanitary investigation, notifies the surrounding people and go through the whole procedure, Your Honor, and I -- whether the county could refuse, let's say they don't, I think they possibly could if they want to assume that responsibility.

Chief Justice Warren E. Burger: Does the budget of the City of Tuscaloosa segregate and identify the cost of the taxpayers of Tuscaloosa to provide these services for the appellants in this case?

Mr. J. Wagner Finnell: Since 1977, Your Honor, in the Burge case in Alabama, it will certainly do so.

That was the first time that had been an actual requirement, although Mr. Justice Livingston had indicated that some years ago in a case.

Chief Justice Warren E. Burger: There being no record on that in this case, is that a matter the Court could or did take notice of judicially as to how much services these people were getting for nothing?

Mr. J. Wagner Finnell: I think not.

I think it's probably inappropriate and outside of issues.

Chief Justice Warren E. Burger: But you can take the Court -- the District Court could have taken judicial notice of the budgets of Tuscaloosa.

Mr. J. Wagner Finnell: Take judicial notes, certainly, yes, sir.

Now --

Justice William J. Brennan: Mr. Finnell, along the same line, I'm bothered a little bit.

This case is here on a motion to dismiss, isn't it?

Mr. J. Wagner Finnell: Yes, sir.

Chief Justice Warren E. Burger: Among other things.

Justice William J. Brennan: Is there any factual controversy at all enforced?

Mr. J. Wagner Finnell: Your Honor, I would say no.

If you look at this case, and I think as both the district judge where it was heard, the single-judge and the three-judge Court did, although they did it and documented it as they went along, in the first place, the allegations of the complaint, if you strip it of the unnecessary allegations, first, there's an allegation in there that people in the City of North Port, which is an incorporated municipality and adjacent to the City of Tuscaloosa, are treated differently from people out in the police jurisdiction who are not in any other city.

That, apparently, is an attempt to show an unequal treatment.

I don't think it has any validity.

I don't think this Court would say so because, actually, these people are subject to their own rules, their own organized municipality where they're adjacent.

So, disregard that argument.

Justice William J. Brennan: Are we entitled to disregard it on a motion to dismiss?

Mr. J. Wagner Finnell: Yes, sir, I would think so.

I certainly would think so.

And, as far as the allegation for the right to vote, when these people live outside of the political subrogation, when they've never been a part of the political subrogation, when we're talking about a general municipal election, how could it be said that they have the right to vote?

This is not a special type election like Tulare or the other cases this Court went into.

This is a general municipal election.

Could it be said that because a person who lives outside of the State of Virginia, for instance, but has an abiding interest in that election could vote there or could it be said that a person living in a city of corporate -- corporate limits of the City of Tuscaloosa, who otherwise is qualified to vote, could be disqualified because he has simply no interest in the election?

The Interest Doctrine is not applicable.

These people have never been a part of the political subrogation.

They have no right to vote.

I think that, on the face of the complaint, is obvious.

If you lay that aside, lay aside the right -- the allegations that these people have a right to vote, which seems to me of course is not sought, it's alleged simply because if you deny the right to vote, if you're alleged you're denying the right to vote, you're alleged a substantial injury.

But, when you allege it only to grand jurisdiction and credibility on another matter, I would say lay that aside to vote, then you have, in the complaint, there's no attempt to challenge any particular ordinance and the brief of the appellant's state that we don't find it necessary to attack any particular ordinance or the effect of it nor do we find it necessary to show that any particular ordinance were threatened by any such particular order.

Justice William J. Brennan: Mr. Finnell.

Mr. J. Wagner Finnell: Now, that puts an issue just one question, as I understand it, and that would be this, whether or not a state statute granting any vestige of extraterritorial jurisdiction to its municipality is unconstitutional per se.

Now, that pure legal question, I think, was presented to the Courts and, although they documented their various findings beautifully as the district judge did, I think that does present a pure legal question that could be handled on a motion to dismiss, Your Honor.

Justice William J. Brennan: Mr. Finnell, on this -- again, considering the fact we have a motion to dismiss, have the plaintiffs alleged that they were denied a right to vote?

Mr. J. Wagner Finnell: Yes, sir, they did.

They said they uncon -- unlawfully -- they haven't alleged -- they haven't asked --

Justice William J. Brennan: I don't think they had.

I thought they've alleged that they were -- that not having the right to vote, their constitutional rights were being denied by being required to obey the laws that were enacted by the people who could vote.

It may be they haven't even alleged a right to vote.

Mr. J. Wagner Finnell: I had thought, Your Honor, that they allege they'd been denied the right to vote.

Of course --

Unknown Speaker: Do you think there are other --

Mr. J. Wagner Finnell: Well --

Chief Justice Warren E. Burger: It's a back-handed reference.

Mr. J. Wagner Finnell: It doesn't say they were denied.

It says that -- it's trying to state it in the abstract, "the denial of the right to vote in city elections."

Justice Potter Stewart: I guess it does.

Justice William J. Brennan: "Infringes on their constitutional right."

Justice Potter Stewart: I think it does.

Justice William J. Brennan: You think that's -- but they don't ask for the right.

Justice Potter Stewart: Yes.

Mr. J. Wagner Finnell: They certainly do not ask for the right to vote.

Maybe there's not a specific --

Justice William J. Brennan: There -- in paragraph 13, this certain individual say they've been required to purchase business license in order to engage in business, but doesn't the record show that they purchased them at half price, is that right?

Mr. J. Wagner Finnell: I beg your pardon, sir?

Justice William J. Brennan: What they pay for their business license is less than they would have to pay if they were residents of the city, isn't that right?

Mr. J. Wagner Finnell: That aspect of the ordinance was not struck down in the Alabama Supreme Court.

It cannot exceed 50 %, yes, Your Honor.

Justice William J. Brennan: It cannot exceed 50%.

Justice Potter Stewart: And it cannot exceed the cost of providing it, isn't that right?

Mr. J. Wagner Finnell: No, sir.

That's the Court's ruling.

Justice Potter Stewart: It cannot exceed the cost of providing it and, in no event, it can be -- can it be more than half of what a city resident is charged.

Mr. J. Wagner Finnell: The Court's --

Justice Potter Stewart: Isn't that it?

Mr. J. Wagner Finnell: Yes, sir.

The Court's ruling was to the reasonable cost, but they did uphold the state statute and limit it to one-half.

Justice Potter Stewart: Right.

Mr. J. Wagner Finnell: You see, the privilege light is the only vehicle afforded to collect this so-called charge to pay for the services.

It couldn't be levied against any private individual out there.

The ordinary citizen is -- really, lives in the best of two worlds.

He has some minimum police protection, some minimum fire protection, it doesn't cost him a dime, the county takes care of his schooling, takes care of his roads, he votes for all the elected officials, it sets up his balloting place.

Actually, it may not be an imperfect political situation, but I don't see that it's an unconstitutional situation under the Fourteenth Amendment.

Justice Lewis F. Powell: Will you describe again how the license tax is measured?

You mentioned the Goodrich Company.

How is the amount of the tax on it determined?

Mr. J. Wagner Finnell: In that particular place, I believe, Your Honor, for heavy industry we happen to have and still have a flat fee and they pay, as my recollection is, they pay a license to $5,000 per anum, 10,000-- it is based graduated on the volume.

Justice Lewis F. Powell: Heavy industry?

Mr. J. Wagner Finnell: It's graduated on volume, but the maximum is $5,000.

They do several --

Justice Lewis F. Powell: By volume, you mean gross sales?

Mr. J. Wagner Finnell: Gross sales, yes, sir.

Justice Lewis F. Powell: And the same tax is applied to the city except it's twice as large, isn't it?

Mr. J. Wagner Finnell: That's right.

Justice Lewis F. Powell: City businesses?

Mr. J. Wagner Finnell: Yes, sir.

Justice Lewis F. Powell: And then you'd have a category for commercial enterprises and service enterprises and the --

Mr. J. Wagner Finnell: The lasting code sets out a different category for many of the businesses.

We tried to standardize --

Justice Lewis F. Powell: Same categories in the city as within this three-mile limit?

Mr. J. Wagner Finnell: Yes, if they happen to be there.

And, once they pay that half license then they're absolutely entitled to police and fire protection and, of course, the reduction in the fire rates probably absorbs that tax and, as I say, that's probably the reason they're not plaintiffs in this action.

Justice Lewis F. Powell: The no-county Court separate and apart from the Courts that exercised jurisdiction within the city, are they?

Mr. J. Wagner Finnell: Yes, sir.

Justice Lewis F. Powell: They are?

Mr. J. Wagner Finnell: The District Court would exercise jurisdiction within the city.

Justice Lewis F. Powell: Sir?

Mr. J. Wagner Finnell: The District Court -- we have what now --

Justice Lewis F. Powell: Does the District Court have jurisdiction over the county and city, both?

Mr. J. Wagner Finnell: Yes, sir.

Justice Lewis F. Powell: So, the same Court functions in both areas.

Mr. J. Wagner Finnell: It does, yes.

We could elect --

Justice Lewis F. Powell: In Virginia, we have separate Courts in the counties from those in the cities, but you have a different system in Alabama.

Mr. J. Wagner Finnell: Yes, sir.

The Circuit Courts, we have only one set of Circuit Courts, that's the Court of original jurisdiction.

Justice Lewis F. Powell: Well, how about Misdemeanor and Small Claim Courts?

Mr. J. Wagner Finnell: Yeah, that's as I say, that's all the District Court in the county and, under the new judicial article, you have either District or Municipal Court which are the same thing.

We could elect to go to the District Court and then our Court would simply be called a District Court.

It has the same requirements of judicial training, same costs, all set for the state coo.

Justice Thurgood Marshall: These people in this area, and I know they can vote for federal and state offices, but what local offices can they vote for?

Mr. J. Wagner Finnell: Well, Your Honor, they vote for the county commissioner, that is the governing body of the county, the ones that set county taxes.

Justice Thurgood Marshall: So, they vote the same way any other county person would vote.

Mr. J. Wagner Finnell: Yes, sir.

They vote for their sheriff, they vote for their coroner, they vote for the Circuit judges, they vote for the tax assessor, the tax collector, they vote for the School Board-- County School Board.

Off-hand, I don't think -- I think they are.

They vote constables, some of the BIC Committeemen, that sort of thing.

They're all on the ballot.

Justice Thurgood Marshall: I know it's not in this case and I -- but, why are you interested in upholding this statute?

It costs you more than you get out of it.

I'm talking about speaking for the city.

Mr. J. Wagner Finnell: Your Honor, I guess it's because when you get a law case, you just don't want to get whipped.

Justice William J. Brennan: Well, obviously, you're -- Tuscaloosa must like this or they wouldn't have enacted the ordinances that extend out in the county.

Mr. J. Wagner Finnell: Your Honor, it's been going on long before I was born.

I don't--

Justice William J. Brennan: Maybe the direct costs are one thing, but the indirect intangible costs are something else.

Tuscaloosa has an interest in -- both in protecting its own citizens from encroachment of various influences from out -- from right beyond its borders.

Mr. J. Wagner Finnell: Certainly, I may have been too -- that's a very important thing and I think if we gave it up we could have serious encroachment on the citizens of the city.

I think we might go back to the old days when, rather than having a corporate limit sign, you had rural boarding houses and salons out there, and that would not be desirable.

We recently had occasion to close up a disco in the corporate limits.

Fortunately, we were able to do so.

We'd had quest of minors being sold, two people killed leaving the place, that sort of thing.

Apparently, the state was unable to do it.

We were able to do it through the like, through -- not through the liquor license, but through the withdrawal of the dancing license which effectively shut it down.

Justice William J. Brennan: Mr. Finnell, that brings up the point that, it seems to me, may be of some importance.

This is a class action.

It's alleged to be a class action.

Mr. J. Wagner Finnell: It was filed as such.

Justice William J. Brennan: And, has there been any determination by the District Court of the -- who would belong in the class and whether the interest of all the members of the class are the same or not?

I can see how many residents that the police jurisdiction might have a different view from other residents within the district, and maybe they shouldn't all be in the same class.

Mr. J. Wagner Finnell: As I understand --

Justice William J. Brennan: Has that ever been considered by the District Court?

Mr. J. Wagner Finnell: The District Court -- as I understand it, you found that a class action was not -- no lower -- see, to those -- I don't think they really considered that.

Justice William J. Brennan: Some people might like to get licenses for half price and other people might want to open a boy houses, you say.

Mr. J. Wagner Finnell: That's right.

Justice William J. Brennan: And other people might be -- there are a whole lot of interests that might conflict.

Mr. J. Wagner Finnell: That's true, Your Honor, and if you make it a class all over the state, of course, you're dealing with different ordinances in each case because we are dealing with enabling legislation here.

Justice William H. Rehnquist: Well, didn't they certify the class consisting of people within the -- presently within the police jurisdiction of Tuscaloosa but refused to class-- certify a statewide class of defendants?

Mr. J. Wagner Finnell: Judge -- I believe Judge McFaton did that, yes, Mr. Justice.

Chief Justice Warren E. Burger: But I understood the question to be directed at the possibility, if not the probability, that many of the people in this area would not want the result sought by the appellant here.

Mr. J. Wagner Finnell: I think if the people in the police jurisdiction even knew that this case were going on, some of them would be horrified.

Justice Potter Stewart: Now, are you, like your friend on the other side, going to rely on your brief or the -- your argument on the question of whether or not this Court has jurisdiction?

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: The single District Court judge, of course, held that this was not a case for a three-judge Court.

He was reversed by the Court of Appeals for the Fifth Circuit.

Mr. J. Wagner Finnell: Yes.

Justice Potter Stewart: But, nonetheless, that question is still open here.

Mr. J. Wagner Finnell: I --

Justice Potter Stewart: And, particularly, was -- that was pointed out by the Court's order.

Didn't we postpone consideration of jurisdiction in this case?

Mr. J. Wagner Finnell: We did, Your Honor, and I very frankly don't think this Court will take jurisdiction on the Moody versus Flowers and Korean versus (Inaudible).

Justice Potter Stewart: The question is whether or not we have jurisdiction.

Mr. J. Wagner Finnell: Well --

Justice Potter Stewart: If we have, we have no option.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: If we don't, we also have no option.

Mr. J. Wagner Finnell: I -- the Fifth Circuit did not treat to standing or equity jurisdiction or some of the rather more important ones.

I didn't argue standing there because the district judge had felt that the case of Tulare versus the Water District was binding, but I distinguished that in the brief and I think it's distinguishable.

Justice Potter Stewart: Well, the single District Court judge, whoever he was --

Mr. J. Wagner Finnell: Judge McFaton, Your Honor.

Justice Potter Stewart: Judge Mc Faton held very clearly, in a long discussion in the opinion that's set out in the appendix -- in the jurisdictional statement, excuse me, that this was not a case for a three-judge Court, and --

Mr. J. Wagner Finnell: Yes, he held --

Justice Potter Stewart: If it's not, then this Court doesn't have direct appellate jurisdiction.

Mr. J. Wagner Finnell: I understand that, Your Honor, but he didn't -- he ruled that they did have -- speculated it did have standing.

Justice Potter Stewart: Well, yes, but you know what he said as well as I do, or if not better.

He said that this was not a law of statewide application.

It was no more than an enabling Act.

Mr. J. Wagner Finnell: Yes, sir.

Justice Potter Stewart: And --

Mr. J. Wagner Finnell: The point I was making is that the Fifth Circuit did treat on that part of it, but they did not even treat the question standing.

Justice Potter Stewart: No, but this isn't a question of standing.

It's a question of whether or not this Court has jurisdiction of this appeal.

Mr. J. Wagner Finnell: Yes and, of course, the standing goes to the jurisdiction, as I understand it.

Justice Potter Stewart: To the District Court's jurisdiction.

Mr. J. Wagner Finnell: I see my time is just about up.

There are two propositions that I do want to state that I believe ought to be central to the disposition of this case.

Certainly, they're essential to my argument.

One, that the right to vote is not at stake here.

What is at stake is the right of a state, under its police powers by statute, to extend any vestige of extraterritorial jurisdiction and, secondly, that when relief is sought under the Fourteenth Amendment, particularly in the interpretation of a state statute, it is only when an established or fundamental constitutional right is impinged upon by the state that strict judicial scrutiny, the compelling state interest test, or the choice of the least restrictive alternative is required.

Justice William J. Brennan: Mr. Finnell, may I ask, do you regard any of these defendants as state officers?

Mr. J. Wagner Finnell: I do not Your Honor.

In fact, I don't -- they may have been performing a state policy, but they're not performing a state function, as required in --

Justice William J. Brennan: If they're not state officers, that would be another reason why a three-judge Court was not required, wouldn't it?

Mr. J. Wagner Finnell: Well, it certainly would so.

I was really prepared to argue all of that, but I didn't have the opportunity.

Justice William J. Brennan: Well then, in any event, there was no service made on the Governor and the Attorney General?

Mr. J. Wagner Finnell: No, sir, none was made.

Justice William J. Brennan: Did you raise any objection along that line at all?

Mr. J. Wagner Finnell: I did not, Your Honor.

Rebuttal of Edward Still

Chief Justice Warren E. Burger: Thank you, Mr. Finnell.

Mr. J. Wagner Finnell: Thank you.

Mr. Edward Still: May it please the Court.

The --

Chief Justice Warren E. Burger: What do you have to say about the -- even though you've waived it, I'd like to have your comment on the lack of pervasive statewide impact here.

Mr. Edward Still: The law, as I pointed out in the beginning of my argument, requires that each city enforce its police ordinances and sanitary ordinances in the police jurisdiction.

It is not simply an enabling statute.

It is a statue which requires that this be done statewide.

Every city in the State of Alabama, every town in the State of Alabama must enforce its police powers in that police jurisdiction zone.

Justice William H. Rehnquist: Mr. Still, one of the cases you cited in response to a question from me earlier was Roberson against the City of Montgomery, and I have gotten that case.

And, there, the Supreme Court of Alabama describes the city's contention under Section 9, which is the state section.

The city contends that it has authority to enforce its zoning ordinances under Section 9.

Now, that sounds like an enabling Act.

Mr. Edward Still: Well, as I point out, Your Honor, that may be a poor choice of words on the part of the Alabama Supreme Court.

I think the question --

Justice William H. Rehnquist: But we're bound by it, aren't we?

Mr. Edward Still: Yes, sir, but I think the question presented in the Roberson case was whether or not zoning is included within the term "police power," and so --

Justice William H. Rehnquist: Do you agree that if this is nothing more than an enabling Act, that it's improper for a three-judge Court to decide the case?

Mr. Edward Still: No, sir, I do not because I believe even an enabling Act -- I believe that the complaint, fairly read on its face, shows that the statute is being enforced or is being utilized by numerous jurisdictions around the State of Alabama and I don't think we have the factual controversy.

It's never been put in into contention by the City of Tuscaloosa either through a motion to dismiss or through an answer which has never been filed in this case, that this does not have a statewide impact.

This is not like the case of Board of Regents versus New Left Project in which the regulation, on its very face, only applied to the Texas Regent System and not to the other colleges and universities around the state.

I appreciate the Court's attention.

Thank you very much.

Chief Justice Warren E. Burger: I have just a question for you, which I suggest you need not answer if you don't want to and you won't be prejudiced for not answering.

As I suggested to your friend, most of the complaint these days about government are paying too much and getting too little.

And, here, the people of this -- that you report to represent here, that you do represent, and the others in that area are getting a lot of free services, are they not?

Mr. Edward Still: They are getting some services, Your Honor, which perhaps might be less than if they were in the c -- costing them less than if they were in the City of Tuscaloosa.

Chief Justice Warren E. Burger: They may have to pay twice as much for the licenses, for example.

Mr. Edward Still: That, it would be.

But, they are not allowed to vote, and they consider that deprivation of the right to vote and, at the same time, the imposition of the government over them to be a commodity that doesn't have a particular price.

Chief Justice Warren E. Burger: This is a little bit like George III, running the area from a distance.

Mr. Edward Still: Something like that, Your Honor.

I've tried to stay away from Revolutionary War Rodrick in this case, but it's something like that.

Justice William J. Brennan: It's strange though that the -- if that was what is so, the Revolutionary War Rodrick strains it in drafting your periphery relief.

You didn't even ask for the right to vote.

It kind of pause your case a little bit.

Mr. Edward Still: No, sir.

And, I say, Your Honor, my clients made a choice about which they wanted and just as --

Justice William J. Brennan: They don't seem to be outraged about the inability to vote.

That's the impression that comes across.

Mr. Edward Still: No, sir, we pointed that out and if you'll read paragraph 10 of the complaint, we specifically say "we are denied the right to vote."

And then, we say in paragraph 11 --

Justice William J. Brennan: You don't say "we are denied the right," they don't even say that.

They say "the denial does such and such."

Mr. Edward Still: No, in paragraph 11, it says "the denial does such and such."

Justice Byron R. White: Paragraph 10 just points this out.

Mr. Edward Still: Yes, sir.

Justice William J. Brennan: Does it?

I'm sorry.

Mr. Edward Still: Paragraph 10 says people who live in the police jurisdiction are denied the right to vote, denied the right to participate in referenda, initiatives and recalls, that sort of thing that are allowed to other citizens in the City of Tuscaloosa.

Paragraph 11 goes on to say, as a consequence of that denial of the right to vote and the --

Justice Byron R. White: Well, paragraph 10 points out as a factual matter that these people are not allowed to vote, but you never say that there's anything wrong with being not allowed to vote.

Mr. Edward Still: I believe that we do, Your Honor, because we say that not being allowed to vote and being governed is the conflict that creates the constitutional problem in this case.

Thank you.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.