Cases by Issue - Direct Injury

FEC v. Akins - Oral Argument

Fri, 09 Jan 2009 14:50:04 +0000

Case:

FEC v. Akins

Media File:

96-1590_19980114-argument.mp3

Related Transcript:

1997_96_1590_argument.xml

Transcript:

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument next in Number 96-1590, the Federal Election Commission v. James E. Akins.

General Waxman.

Mr. Waxman: Mr. Chief Justice, and may it please the Court--

In holding that the American Israel Public Affairs Committee, or AIPAC, was a political committee within the meaning of the Federal Election Campaign Act, the court of appeals misinterpreted this Court's decisions, and it did so in a case it should not have reviewed on the merits, for the respondents do not have standing.

AIPAC is an association engaged in issue advocacy and lobbying.

The FEC investigated a complaint filed by individuals who disagree with AIPAC's policies, and the FEC concluded that AIPAC had, quote, likely made inkind contributions aggregating over 1,000 in a calendar year.

The commission then considered whether AIPAC was thereby a political committee under the act, in which case it would be required to disclose all receipts and disbursements over 200 dollars, whether or not they were related in any way to a campaign, and it would be limited in how much money it could receive, and from whom.

The commission, interpreting the statute in light of this Court's decisions in Buckley and Massachusetts Citizens for Life, concluded that, because campaignrelated activity was not a major purpose of AIPAC, its incidental campaign spending did not require it to comply with the act's restrictions on political committees.

In concluding that the FEC acted, quote, contrary to law, the court of appeals erred in two ways.

Let me just say a few words about the merits and then address the standing issues.

In Massachusetts Citizens for Life, this Court deemed it, quote, undisputed that an organization making nearly 10,000 in campaignrelated spending was not a political committee because its major purpose was issue advocacy, not election activity.

In so holding, this Court relied on its earlier conclusion in Buckley that, quote, to fulfill the purposes of the FECA, the term political committee need only encompass organizations that under... that are under the control of a candidate, or the major purpose of which is the nomination or election of a candidate.

Unknown Speaker: General Waxman, I... you're addressing the merits, and do you mind if I raise a preliminary question before we really wade into the merits of the major purpose test?

Mr. Waxman: I'd be grateful, Justice O'Connor.

Unknown Speaker: Has the FEC changed its notion of who are members within the meaning of the statute so that the expenditures that were made here might be ones that were for publications that went to members, in which case the statute wouldn't be involved at all?

Mr. Waxman: Justice O'Connor, a great deal has happened with respect to the membership issue and the law relating to who consti... what... who is or is not a member since the FEC made its decision in this case, and let me--

Unknown Speaker: Under the FEC's current interpretation and application of who's a member, would the mailings here have gone to members?

Mr. Waxman: --The FEC has recently within the last 3 weeks issued a proposed... a notice of proposed regulation in which it has set out for public notice and comment an alternative set of definitions of membership, and what constitutes a member, and under one of the alternative definitions that the FEC is proposing, the AIPAC members, insofar as the record existed in this case at the time, would not qualify as members, but as--

Unknown Speaker: In that case the statute wouldn't be invoked at all, if that were--

Mr. Waxman: --Well, no, what... I guess what I... what I meant to say is, the FEC has not yet settled on a firm definition of membership.

It did after the decision in this case, but that regulation was struck down by the court of appeals in a case that it decided a few years after the FEC made a decision in this case.

In response, the FEC--

Unknown Speaker: --Well, in that case I thought that the... I thought that the Chamber of Commerce case intervened between the threejudge panel in this case and the en banc in this case, is that not--

Mr. Waxman: --That is correct, and--

Unknown Speaker: --So at the time you were arguing political committee at the en banc, the D.C. Circuit had already decided the membership question in the Chamber of Commerce case, and to me it was just a total mystery how come these two never met from the same court.

Mr. Waxman: --Well, I... I agree that it is, like many other things in this case, somewhat mysterious, but I think what the en banc court of appeals concluded, and I think correctly, is that for purposes of deciding this case, the FEC's determination was that the people that AIPAC considered members were not, in fact, members, and that the FEC is now in the process of determining... of fixing on a definition of membership which it has not yet done, but still takes the position that membership can be defined in a way to exclude all people who pay 50 dollars a year in dues to AIPAC.

Unknown Speaker: But wasn't AIPAC itself always taking the position that it was a membership organization communicating with its members?

I mean, it was not--

Mr. Waxman: Oh--

Unknown Speaker: --It was not in this litigation.

It was--

Mr. Waxman: --Absolutely AIPAC took that position, and in fact the joint... the general counsel's brief and report that are reprinted in the joint appendix devote a very substantial portion of time addressing AIPAC's contention that these papers... these people were just its members, and therefore these weren't expenditures or contributions in any regard.

The commission concluded otherwise, and the commission is now propounding a rule which, if adopted--

Unknown Speaker: --General Waxman, isn't it--

Mr. Waxman: --would permit them to adhere to that insofar as AIPAC still has the same rules with respect to membership as it did at the time.

Unknown Speaker: --But isn't it true that, if they follow the definition of membership that the D.C. Circuit has followed in the case Justice Ginsburg referred to, then these people would be members?

Mr. Waxman: Well, I don't... I don't think that the... my problem with answering the question, Justice Stevens, is that the D.C. Circuit did not apply, as we understand it, a rule with respect to who was a member.

The D.C. Circuit simply struck down the commission's prior rule, which required, as a bright line test, that no matter how many dues anybody paid, and no matter how affirmatively they tried to be a member--

Unknown Speaker: They had to vote.

Mr. Waxman: --there was a bright line requirement that you had to be able to vote for at least one member of the governing body.

That was, in many ways, the ratio decidendi of the commission in this particular case, and that was struck down.

But in Chamber of Commerce, the D.C. Circuit left open the possibility that an organization like AIPAC, which requires only 50 dollars to establish oneself as a member, might properly be deemed to be not a member by the FEC, and in fact in the petition for... in its... in its opinion denying rehearing in Chamber of Commerce the court of appeals emphasized that it is open, still open to the commission to define membership in a way... I mean, it wasn't addressing this particular case, but to define membership in a way that would or wouldn't include AIPAC members.

Unknown Speaker: So--

Mr. Waxman: Particularly tricky here is that--

Unknown Speaker: --Well, so jurisprudentially, what do we do, faced with this question, or uncertainty?

Mr. Waxman: --Well, we--

Unknown Speaker: Is there some way we can safely reach the merits, and if so, how?

Mr. Waxman: --I think you can and should reach the merits.

No one in this case, even AIPAC in response to the disposition at the administrative level, has challenged the membership issue.

It's not been briefed anywhere.

It's a factsensitive question, and it may very well be true, Justice O'Connor, that if the court of appeals opinion is sustained, or you otherwise dispose of this case in a way in which the commission will have to reevaluate it, that antecedent question will have to be litigated again.

But right now, it seems to me the law of the case, as it comes up, and it's not a question presented--

Unknown Speaker: Well, but the organization--

Mr. Waxman: --is that AIPAC... these people were members.

Unknown Speaker: --But the organization is not a party, but they did file an amicus brief in which they do challenge the point.

Mr. Waxman: They... well, they file an amicus brief in which they say they're not members--

Unknown Speaker: Right.

Mr. Waxman: --in any sense in which the Federal Election Campaign Act could constitutionally be interpreted.

Unknown Speaker: I thought you--

--Also, they--

--wanted us to reach the merits.

Mr. Waxman: Well--

Unknown Speaker: You just said that we should reach the merits.

I--

Mr. Waxman: --We think that this... we think that this, that the lower courts should not have reached the merits of this case because these respondents don't have either Article III or statutory standing, but if you do reach the merits, we think that the commission's interpretation of this Court's opinions in Buckley and Massachusetts Citizens for Life is, quote, sufficiently reasonable to... to uphold it.

The one thing that--

Unknown Speaker: --General Waxman, just... I don't understand.

First you're saying, don't reach the merits because there's a standing hurdle, but if you should find there's no standing hurdle, skip over another possible hurdles... this is my concern.

This question, political question, is not easy, and it could be a really important thing to a lot of organizations that just have mailing lists, that don't have duespaying members.

Why should we decide that question in a case where it may well be that this particular organization qualifies as a membership organization, so the question is really academic for AIPAC?

Why shouldn't we hold off on such a question until we're sure we have the kind of entity that would be affected by it?

Mr. Waxman: --Well, it is, of course, open to this Court either, a) to address the membership issue, and announce a determination as to who... whether these people were or weren't members based on the administrative record, or to--

Unknown Speaker: Send it back.

Mr. Waxman: --hold that there was not... vacate the court of appeals decision and send it back.

What is intolerable--

Unknown Speaker: I don't see why we have that choice, because the membership issue as such is not what has come to us.

Mr. Waxman: --The membership issue certainly is not one that has come to you.

What--

Unknown Speaker: It seems to me the only thing we could do, if we are going to advert to that issue at all, is to say, it is in a state of ferment, and the one thing that seems clear is that there is going to be a redetermination, whatever the result may be, of what membership means at the commission level, and we ought to send this case back so that... so that if it ultimately comes to us it will come to us on a concept of membership, which is... which for the foreseeable future will be the permanent one and will give us a good reason to go the length of the adjudication that you want.

Mr. Waxman: --Well, I do acknowledge that there is some appeal to that approach, but I would just ask the Court to look at this from the perspective of the commission.

The commission is now in the position of having been told by the en banc court of appeals that virtually any voter in the country can haul it into court whenever it makes a determination that a group, whether it's a civic or religious, or my family, or any other group has made more than 1,000 dollars in political spending, and therefore is required to file with the courts as a political committee, and... so in other words, that... virtually any voter can bring the FEC into court, because that's the standing rule they've applied, and that this... that the commission's efforts to apply the major purpose test that this Court enunciated is wrong, and in fact any group, incorporated or otherwise, that makes more than 1,000 dollars of what the commission would deem to be inkind, coordinated or independent expenditures is a political--

Unknown Speaker: So you say in just--

Mr. Waxman: --We're in an impossible position.

Unknown Speaker: --And you say in deciding those questions we wouldn't have to express any definitive view on the membership question.

Mr. Waxman: Absolutely right.

It is a question... for purposes of the law of the case, there has been a determination by the commission in this case that AIPAC's, the people that AIPAC was communicating with were not members.

If we are wrong and, in fact, the major purpose test doesn't apply, on remand the FEC will have to consider and take AIPAC's views whether or not, in light of the court of appeals decision in Chamber of Commerce AIPAC's members are, in fact members under the act.

It is a very tricky--

Unknown Speaker: General Waxman, I understand your anxiety about standing, and that sounds perfectly sensible, but I... what I don't understand is why you don't have a second step and say, if you should decide standing, then send it back to the commission.

The commission doesn't know yet what its membership thing is, but when it gets its act together this case may well be moot as far as a political committee is concerned, so I certainly understand why you want to urge standing first.

What I don't understand is why you're not telling us, but if we're wrong about standing, this case should not be... the ultimate question in this case should not be reached because it might fold at the commission level on what Justice O'Connor said at the very first is a threshold question, a preliminary question.

Mr. Waxman: --I guess the reason is that if you hold... if you conclude that there's no standing in this case, the decision in the court below is vacated and, in fact, the commission is back on its own.

Unknown Speaker: That I understand, but what I don't understand--

Mr. Waxman: But if you don't--

Unknown Speaker: --is the political committee--

Mr. Waxman: --If you don't, we are left with a decision on the merits of a critically important issue of law, which is, are groups that are organized for any number of hundreds of different reasons political committees?

Unknown Speaker: --But the thing would be vacated, because the... just as we would not reach political committee, neither should the D.C. Circuit, so I'm still puzzled why you don't say, standing is our first argument, but if we lose on that, vacate the district court's... the D.C. Circuit's decision, send it... have them send it back to the commission so the membership issue can be determined.

Mr. Waxman: The FEC is in an extremely unusual posture in this case visavis the substantive law of the Federal Election Commission Act, mainly because in this dance with Congress and the Supreme Court the FEC is very much following... we're... the commission is trying very hard to determine--

Unknown Speaker: But isn't it true that no matter what happens we're going to have to decide standing?

Mr. Waxman: --the extent to which groups are political... excuse me?

Unknown Speaker: Isn't it true... no matter what... with all these alternatives, we're going to have to decide standing anyway, aren't we?

Mr. Waxman: I... you certainly are going to have to decide standing.

Unknown Speaker: Why don't you argue standing?

Yes.

You--

Mr. Waxman: Why don't I argue standing.

Unknown Speaker: --Yes.

It's not your fault, but you've used up 15 minutes discussing an issue that isn't even considered in the briefs.

Why don't you go to the issues that are considered in the briefs.

Mr. Waxman: We think... we believe that the Court erred in holding that respondents held standing in this case, either under the statute or the Constitution, to challenge the commission's decision.

In cases like Heckler v. Chaney and Linda R. S. v. Richard D., this Court has reiterated a fundamental background principle that ordinarily complaints that an agency has failed to take enforcement action are not subject to judicial review, but under the court of appeals' interpretation, as I said, it's now open to almost any voter to bring the FEC into court whenever it decides not to file an enforcement action against a religious, civic, issue advocacy, or any other group that may have made incidental election expenditures.

We believe that Congress did not intend that result, but even if it did, for Article III purposes we believe that respondents have not carried their heavy burden to establish either that they have suffered particularized concrete injury in fact, or that they will likely obtain the single remedy that they allege will redress them.

That is, a retrospective order of disclosure, and nothing else.

The FEC... and this is... I think the court of appeals erred in assuming to the contrary.

Unlike most other agencies the FEC has no authority, no matter what the court of appeals or this Courts decide, to order AIPAC to produce anything.

In fact, Congress' preferred remedy for a violation of the act, a conciliation agreement, certainly need not require this disclosure and is exempt from judicial review.

Unknown Speaker: But isn't there this difference, General Waxman... and maybe I'm wrong on this and I just don't remember it that well... but if the FEC decides not to do anything, can't the litigants then proceed independently?

Mr. Waxman: In other words, if the FEC decides not to do anything, could the respondents sue AIPAC?

Unknown Speaker: Yes.

Mr. Waxman: Absolutely not.

Under 437g(a)(8), which is the judicial review provision that's at issue in this case, a third party... there is no third party right of action.

There is no private Attorneys General provision here similar to what there is in so many other cases.

Here, what happens is, the act provides that any person can make a complaint with the commission alleging that the FECA has been violated.

If the commission dismisses the complaint, and now I'm referring to the judicial review provision here, a party aggrieved by an order of the commission dismissing a complaint may file a petition against the commission in the District of Columbia, and under subsection (C) of that provision, in the event that such a complaint is filed, the authority of the Federal District Court and the court of appeals is simply to declare whether or not the FEC has, quote, conformed, acted in conformity with the law, or contrary to the law.

If the Court concludes that the FEC has acted contrary to the law, the case goes back to the FEC to allow the commission to conform itself to the law.

Only if it fails to do that may an individual bring a cause of action against the party that he or it alleges was violating the act.

This is a very, very unusual and limited review provision that reflects, we think, Congress' recognition of the fact that while it's important to regulate, for the benefit of the public, campaign expenditures, campaign spending, and disclosures, there are very, very First... important First Amendment--

Unknown Speaker: Did these plaintiffs comply with all of those steps?

Mr. Waxman: --These plaintiffs filed an administrative complaint with the commission under 437g(a)(1), and when the commission voted, 6 to nothing, not to proceed further on their complaint that the... that AIPAC should be required to file these reports and register as a political committee, they brought a suit in the district court against the Federal Election Commission under these provisions.

And I think... one of the things that demonstrates why there is so little standing in this case is reflected by the fact that in their original complaint, filed in the district court, these respondents alleged, among other things, that they were voters, and that they had been injured in the fact that they had been deprived of certain information they might have wanted to have as voters.

Their amended complaint deleted that allegation, and alleges standing on the grounds that they are political competitors in the court of public opinion.

Unknown Speaker: If Congress, instead of using the word aggrieved, had said, any person who suffers the following injury, and then just listed the things that you'd said, can do whatever it says there, would that have violated the Federal Constitution?

That is, would we have lacked standing under the Constitution?

Mr. Waxman: Yes.

I mean, I think a point here--

Unknown Speaker: Yes because... so it's constitutional, do... because I thought person aggrieved in a statute, the word aggrieved traditionally traces back... though that isn't clear, it traces back to Sanders Brothers, and cases that did use that to refer to a private Attorney General, at least arguably so, and then that's why I wonder if it's constitutional.

Mr. Waxman: --Well, I think there are... I think there are cases that... there are cases going both ways.

Unknown Speaker: There are.

There are.

Mr. Waxman: But the question here is, we think that even if the Court were to construe this review provision as extending prudential standing to the limits of Article III, as in Trafficante and Hardin and cases like that, there still would be no constitutional standing here because they haven't demonstrated injury in fact.

Unknown Speaker: Well, they say that what they would like is, they want information, and they think that if the FEC enforces the law, in their view of what it is, that they will get information that Congress by statute has given them an entitlement to.

Now, why isn't that a real injury--

Mr. Waxman: It's--

Unknown Speaker: --assuming they really want it?

Mr. Waxman: --Well--

Unknown Speaker: I assume they do.

Mr. Waxman: --It's not injury in fact if we're talking about them in their capacity as voters who, after all, are... the electorate is certainly within the zone of interest of the disclosure provisions of the Federal Election Campaign Act.

They have not made any allegations that they are any different than any other voters who allegedly want this information--

Unknown Speaker: If we took the voter away... if we took the vote, if we closed every voting booth in the United States, every voter in the United States would be affected.

I assume they'd have standing.

Mr. Waxman: --Of course.

Unknown Speaker: All right.

So the simple fact that everybody is affected doesn't always show they don't have standing.

Mr. Waxman: I... it... it certainly does not always show they don't have standing, but I think it's instructive to compare this statute or their claim of standing here with a claim of standing under the FOIA, for example.

FOIA provides a personal right in an individual to ask the Government, to have that individual ask the Government for information, and if the Government doesn't provide that person information, that person is injured within the meaning of the statute and can bring a lawsuit, and there's no issue of redressability, because if the Court agrees with the individual he gets the document that exists.

The Federal Election Campaign Act doesn't create rights in particular individuals to get particular information.

It creates an obligation on certain persons and parties that are regulated by the act to provide kinds of information to the Government which the Government then makes available to the public generally, so--

Unknown Speaker: But the public, each member of the public may not have a right in the sense of having a means by which necessarily it can compel the disclosure of the information, but each member of the public has an interest in getting that information.

Mr. Waxman: --Well--

Unknown Speaker: And I understand your redressability point as a separate point, but simply with respect to the particularized injury, why isn't the interest, the statutorily provided interest in getting information sufficient on that first point?

Mr. Waxman: --Because I don't think... and we do think that the stronger argument, the clearer argument against Article III standing is redressability both because of the discretionary nature of the decision, the particular aft powers and lack thereof of the commission, and particular facts in this case, but with respect to Article III injury in fact, these... even the court below acknowledged that there would not be sufficient particularized injury in all voters.

The court of appeals concluded that these were, quote, affected voters, but its definition of the term affected was, because they are alleging that... assuming that they are, in fact, suing as voters, that AIPAC may have participated in an election that they may have voted in they might have been deprived of information that they could have used, therefore, they... these individuals--

Unknown Speaker: No, but isn't the argument stronger than that?

They are being deprived of information by virtue of the fact that they don't know whether there was, in fact, a contribution made.

The deprivation of the information is not contingent.

That's actual.

They don't know something, and that something that they don't know, it seems to me, is what the statute has given them an interest in finding out.

Mr. Waxman: --Well, they... I think another way to put it, Justice Souter, is that these individuals are not asking the commission to do something because they were harmed.

They're asking the commission to do something so that they can determine if they have been harmed.

Unknown Speaker: No.

They're saying, I have been harmed because I have an interest in knowing this.

That interest has been... has been infringed because they haven't filed, et cetera, so they are claiming a present injury, not a contingent one.

Mr. Waxman: Well--

Unknown Speaker: They're saying the harm is the ignorance.

Mr. Waxman: --Justice Souter, there are many, many decisions of this Court under Article III that have indicated that just because an individual plaintiff has an interest in having the Government do something and can demonstrate why they have that interest, nonetheless that has been held not to satisfy the particular--

Unknown Speaker: Right, but what--

Mr. Waxman: --And I think if the statute had been written--

Unknown Speaker: --Yes, but what--

--Or even information in particular.

Why don't--

--Yes, but what's different here is that there's the statute that says you are, subject to certain discretion in the commission, entitled to have it.

That's what differentiates them just from the mass of individuals who might walk into a court and say, I think it would be nice if I were to know the following, or to have the following relief, or to have Government officials do what they ought to do.

Mr. Waxman: --Well, I--

Unknown Speaker: The statute goes the step further.

Mr. Waxman: --I don't... we may just disagree about the statute.

This statute, unlike FOIA, does not, we understand, give individuals any particular right to obtain any particular information, particularly information that the commission doesn't have, in light of, as I said, the... a general background principle that's reflected in Linda R. S. and lots of other cases.

This... we're talking about who has standing to haul an agency into court and demand that the agency go and get information from particular individuals, even if the agency otherwise might conclude that they should... they are a political committee and they probably ought to report, but it just chooses not to exercise its prosecutorial discretion that way, and--

Unknown Speaker: And do I understand the reason the agency didn't... it says, this membership question really was in doubt.

The agency rejected it in this case and said that's why we're not going to go forward with any enforcement.

Mr. Waxman: --That's right.

That's what makes this case particularly nonredressable.

That is, there were two related questions before the commission, both having to do with the allegation, and the commission's conclusion that there were, in fact, expenditures, inkind, coordinated expenditures over 1,000 dollars.

There were two possible legal conclusions that the commission could reach.

One is, AIPAC is a corporation, and corporations can't make expenditures, and therefore AIPAC has violated 441b.

The commission voted 4 to 2 to conclude that they had, but decided not to proceed with any sanction at all, even a civil fine, because a) the law was so unclear, and b) it was a very close question on the facts, and those two--

Unknown Speaker: If you... if we decided the redressability on the basis of the membership question, you're no better off if we related that to standing than if we decided it first.

Mr. Waxman: --If I understand--

Unknown Speaker: If we decided no standing because of the special problem related to membership affecting redressability, you haven't gotten anywhere, I guess.

Mr. Waxman: --We haven't gotten anywhere near as far as we'd like to be at the end of this argument.

Unknown Speaker: All right.

Mr. Waxman: If I may just reserve the balance of my time, Justice--

Unknown Speaker: Very well, General Waxman.

Mr. Schember, we'll hear from you.

Argument of Daniel M. Schember

Mr. Schember: Mr. Chief Justice, and may it please the Court--

First of all, our amended complaint certainly pleaded information standing and information injury.

Joint appendix 11, paragraph 6, the FEC's improper action has deprived plaintiffs of their legal right to learn the amounts and beneficiaries of AIPAC's unreported campaign expenditures in their capacity as voters and members of the public.

The only difference between standing in this case and standing in a FOIA case concerns the issue of redressability.

We certainly have a... within the zone of interests of this statute an interest as voters and members of the public in obtaining information concerning campaign contributions.

The Government admits in is reply brief that voters and, we would add, members of the public, are primary intended beneficiaries of this--

Unknown Speaker: What about cases such as Heckler v. Chaney and Linda R. S., where we've said that citizens don't have... or perhaps someone more than... you don't ordinarily have standing to require that a person, an agency or a prosecutor commence a prosecution?

Mr. Schember: --Well, Linda R. S. certainly is a standing case.

Now, Heckler v. Chaney, that's an APA reviewability case, but Linda R. S. concerns--

Unknown Speaker: Linda R. S.--

Mr. Schember: --What happened there, of course, the interest at stake was one spouse's or exspouse's interest in child support, and what the spouse wanted to have happen, or the exspouse, is have the Government take some sort of criminal action against the father, I guess, that was obliged to make child support payments, and hopefully the coercive power of the prosecution would somehow result in the payment of child support.

The Court said, that's speculative.

That's not the case here.

Unknown Speaker: --But the Court's reasoning was considerably broader than that, just that traditionally private individuals do not have any claim to have a prosecutor commence something that is discretionary.

Mr. Schember: Well, that issue was involved with that case, too, but here, under the statutory scheme, we have a right to go to court.

When our complaint is dismissed the--

Unknown Speaker: You have a statutory right that is shared by everybody in the country, right?

Mr. Schember: --Well, we have a stat... no, no.

You have to file an administrative claim.

Not everyone in the country can simply go to court.

You have to go through the administrative process.

Unknown Speaker: But everybody can follow that administrative process.

Mr. Schember: Yes, but only if they--

Unknown Speaker: To vindicate the right to the information.

Mr. Schember: --Correct.

Unknown Speaker: Which everyone has.

Mr. Schember: Correct.

Unknown Speaker: But we've decided a case where there was not only a statutory right to information on the part of the public at large, but a constitutional right to information in a case involving the Statements and Accounts Clause, where plaintiffs came in here and said, the CIA is not publishing its precise expenditures.

It's all buried under the Defense Department or other agencies.

We want a statement.

And we said, no standing.

Why is that any different from your case?

These people say--

Mr. Schember: Well, because we have a statute.

Unknown Speaker: --we have a right to this... a statute is more important than the Constitution?

Mr. Schember: Well, if the Court... I'm not familiar with that case, but if that case held that a constitutional right to information is a generalized grievance, then--

Unknown Speaker: Then it was wrong.

Mr. Schember: --No.

Unknown Speaker: No?

Mr. Schember: Then that is to... then how... then to reconcile that holding with cases saying that Freedom of Information Act requestors have standing to seek information under the act is accomplished by saying we have a statute that grants a right of review for that injury in fact, and we have a statute here that grants a right to judicial review.

Unknown Speaker: The FOIA grants it to particular individuals.

Mr. Schember: Yes, those who--

Unknown Speaker: You may request... you may request information.

Mr. Schember: --That's right.

Unknown Speaker: This statute does not say particular individuals may come to private organizations and request the information, does it?

Mr. Schember: No.

It says something different.

Unknown Speaker: It doesn't purport to--

Mr. Schember: The only difference, though, goes to the question of redressability.

What the statute says is that the plaintiffs may file an administrative complaint seeking disclosure, and if that complaint is dismissed, they may go to court and say that's contrary to law, just what the respondents did, and then the question is, well, if there is a favorable ruling on the merits for the respondents, is it likely... Bennett v. Spear... that the ruling on the merits will, in fact, result in the disclosure that they seek.

That is the case here, for five reasons that are very different from the circumstances in Linda R. S. Number 1, a favorable ruling on the merits for the respondents would result in... would essentially mean that AIPAC is under a statutory duty to disclose the information that the respondents seek.

Second, the commission has power to order that--

Unknown Speaker: --Are you saying that in that situation the FEC would have no discretion to decline prosecution?

Mr. Schember: --I'm not saying no discretion.

That's not our burden.

All we need show to establish redressability is that it is likely that enforcement action would be taken that is likely to result in the producing of that information, and for four additional reasons that is the case here.

The second reason is that under the statute, 437d(a), the commission does have power to order AIPAC to disclose this information.

437d(a) states the commission has the power to require any person to submit such written reports and answers to questions as the commission may prescribe.

Now--

Unknown Speaker: Mr. Schember, can we just go back a step, because--

Mr. Schember: --Mmhmm.

Unknown Speaker: --there are many cases, are there not, where anyone can come to an agency and say, agency, I want you to consider this, like, I want you to make a rule on that, and the agency statute is broad enough to say yes, we have to take petitions from anybody.

But when the agency says no, then there's an effort to get to an Article III court that does have constitutional limitations on what it can hear.

Mr. Schember: Mmhmm.

Unknown Speaker: So I think there's a whole category of cases, are there not, where you have a right to go to the agency, but you don't have a right to go further.

Mr. Schember: Absolutely correct, but we do have the right here, because we have injury in fact.

We have... that falls within the zone of interests of the statute.

Voters and members of the public are primary intended beneficiaries of the disclosure provisions of this act.

That is undisputed.

They have a right to make an administrative request seeking disclosure, and if their complaint is dismissed, go to court, as they did, and it is likely to result in disclosure in this case for the two reasons that I've said so far, and for a third reason, that when--

Unknown Speaker: Would there be a likelihood of disclosure if the FEC takes the position that the mailings here went to members?

Mr. Schember: --The answer is no.

Unknown Speaker: No.

Mr. Schember: Because then... yes, if you... if the membership--

Unknown Speaker: So I'm not sure it is so likely that there would be redressability.

Mr. Schember: --Well, but we have standing to contest the issue of whether or not the AIPAC contributors are members, and we most vigorously maintain that they are not.

The ruling below on that question was correct.

Unknown Speaker: Yes, but on standing we have to see if it's redressable, and I guess the FEC has some leeway in determining who are members and who aren't under that statute.

Mr. Schember: Well, but under the... yes, but under the law of this case the ruling that's been made, the AIPAC contributors were found not to be members, and we would maintain that Chamber of Commerce does not require a change in that conclusion.

Unknown Speaker: But General Waxman said that if we go all the way in this case they would still request at the end of the line a remand on that question.

Mr. Schember: Yes, well, of course shifting off of standing to the question of whether or not what's appropriate to do--

Unknown Speaker: Well, it impacts standing, I think.

I mean, it's linked somehow with redressability, I think.

Mr. Schember: --Well, it's another legal issue in the case.

We maintain as a matter of law on the facts present in this case that, under Chamber of Commerce or the prior authority, that the AIPAC contributors are not members.

We also maintain, on the record of this case, that there is additional indication of contributions by AIPAC going beyond merely communication to the persons that these... that AIPAC calls its members.

We maintain that what happens after AIPAC makes these communications to its contributors, that these contributors then not only go out in their individual capacities to make campaign contributions involving themselves in campaigns, but that they then report back to AIPAC that they have done so.

Unknown Speaker: But there's nothing like that... there's nothing like that in this record.

Mr. Schember: Oh, yes, there is, Your Honor.

There was evidence submitted to that.

No findings by the FEC on that question.

Unknown Speaker: Yes.

Mr. Schember: But that's another issue to be addressed on remand.

Unknown Speaker: --on membership, there's one little thing that's bothering me.

Is there a rule in their proposed rulemaking that would make members nonmembers of those who both contribute 50 dollars and have the right to affect agency policy?

Mr. Schember: I haven't seen the proposed rules.

I'm relying on General Waxman's--

Unknown Speaker: Are they published?

Mr. Schember: --I haven't seem them if they are, but I'm not saying they're not.

I'm just saying I'm ignorant.

I'm relying on General Waxman's representation.

Unknown Speaker: Do we know, though, that AIPAC has conceded or not conceded that they both get the 50 dollars and the member has a right to affect policy?

Mr. Schember: Well, that's far from established on the record.

No.

They contribute 50 dollars.

The precise... AIPAC, from the record that we have, which is not complete on this question, is a topdown organization.

Power vests... is at the top, and the 50 dollar contributor does not have much right to determine a policy of that... of the organization.

That's what the record shows so far, and based upon that, and if we have to litigate it further, yes, we have to litigate it further, but we staunchly maintain that these contributors are not members, but even if they were, there would be another basis for finding, upon further investigation, that AIPAC is engaged in political campaign contributions of a different sort, which I just mentioned.

Unknown Speaker: Mr. Schember, may I go to a different point on this redressability issue?

Isn't it also... maybe this is not the case.

Isn't it also your position that redressability should be judged on the assumption that there is a body of law of certain content, and the question of redressability should not turn on whether there might be a change in the law?

Is that your position, ultimately?

Mr. Schember: Yes.

I--

Unknown Speaker: You're saying even if that's not so there are other grounds--

Mr. Schember: --It--

Unknown Speaker: --to say that it would be redressable, but at the base, isn't it your position that you don't... you shouldn't consider a change of law in determining the redressability point?

Mr. Schember: --Well, I certainly would say that a plaintiff cannot be denied standing on... to sue under a law on the assumption, well, there might be a change of the law in the future.

One has... that kind of speculation doesn't defeat redressability.

All the--

Unknown Speaker: What about the... oh, I'm sorry.

We're not talking about a change in the law.

The question is whether the agency interpreted the law correctly, and the D.C. Circuit said it didn't, that it... that its rule that was applied in this very case, whatever the right rule is, that was the wrong rule.

Mr. Schember: --Well, whether the membership question was decided correctly by the FEC or not is not pertinent to standing.

It would only be pertinent to standing if Chamber of Commerce decided the issue, and we had no... we had no ability to contend that AIPAC's contributors are not members.

Certainly then, if we had no hope of being able to maintain our claim that those contributors aren't members, then perhaps that would be linked to standing.

We would have no possibility of redress, that would be true.

But that's not the case here.

We maintain, notwithstanding Chamber of Commerce, that AIPAC's contributors are not members, and they are not... and that these communications are campaign contributions.

Unknown Speaker: Do you plan to give us your other three reasons?

Mr. Schember: Yes, Your Honor.

[Laughter]

Well, the... to review, we've had the first... the first one is, determine a favorable--

Unknown Speaker: We've learned the first two.

I'm afraid you won't get to the others if you--

[Laughter]

Mr. Schember: --The commission has... when the commission finds a violation it is under a mandatory legal duty under section 437g(4)(A) to attempt to correct such violation.

Now, the likely way to correct a disclosure violation, by which I mean a failure to disclose information that should be disclosed, particularly where the information to be disclosed is readily available, is to demand that the information be disclosed.

Certainly, to maintain that it is not even likely that a good faith attempt to in... to correct a disclosure violation will not in any way involve a demand for disclosure of readily available information is absurd.

It is likely that a good faith enforcement of this statute under this provision to correct a disclosure violation will result in disclosure where the information is readily available.

Point 4, the record here shows that the information sought by the respondents includes types of information that is readily available.

What we're seeking essentially is, to which candidates did AIPAC contribute, and since the manner of contribution was inkind, essentially having the paid staff of AIPAC drum up support in the field for those candidates, how much time did the AIPAC staffers devote to those particular campaigns.

How much effort did they put into it?

This kind of information doesn't require elaborate reconstruction of records and broad disclosure this is simple information that is the core information that we're entitled to get and that we want to know.

We want to know this simple type of information.

AIPAC cannot plausibly claim that it doesn't know who its paid staffers were who engaged in these activities.

The paid staffers can't plausibly claim that they can't remember what candidates they supported, or what they did.

This is readily available information that can be disclosed.

The last point is that, on the record before the Court, when the FEC, during the investigation of this case, asked AIPAC for information, there wasn't recalcitrance and nondisclosure by AIPAC.

AIPAC complied with the FEC's requests for information.

What we have in the totality of circumstances, the record here and this legal framework, which gives the commission power to order disclosure, a likelihood that disclosure will result if AIPAC is found to be a political committee because the major purpose test is invalid.

Now, when we get to the merits, we face a fundamental question which Justice Ginsburg has been pressing what question should be decided first, the membership question, or the major... or whether... or the validity of the major purpose test.

I suppose... we put a lot of energy into briefing the major purpose test, and we're convinced that it's wrong, and then the Court... and we would like the Court to decide that question, but if the Court is troubled by the question and thinks the D.C. Circuit should not have reached it, it would be a permissible disposition of this case to say that the membership question ought to be addressed first.

I can't raise an argument against that.

Unknown Speaker: What about the major purpose question?

The Attorney... if the Attorney General had more than a minute, which he doesn't, why would he say the major purpose test is incorrect... or is correct?

Mr. Schember: Is correct?

Unknown Speaker: Is correct.

Mr. Schember: I don't... the bottom line argument they say that I find in their reply brief as well, that's what the dicta in Buckley said.

The court of appeals properly held that this dicta in Buckley literally construed and applied in the way that the FEC has applied it here... for the first time, I might add.

This is the first time that the FEC has applied the major purpose test in this way... is contrary to law because it would eviscerate the statute.

It simply makes no sense to exempt from political committee status an organization that makes a million dollars in campaign contributions simply because they're rich and have got 9 million dollars to spend on something else.

Unknown Speaker: Mr. Schember, could your clients have brought this action as an APA review procedure against the FEC?

Mr. Schember: That's a very difficult question.

I think General Waxman would say no under 437d(e), which says that this section shall be the exclusive civil remedy for enforcement.

Unknown Speaker: It's ironic in a way, if you had an APA remedy and you would have been barred by Heckler v. Chaney, to say that by taking this other remedy you solve that problem.

Mr. Schember: Well, but we would say under Heckler that we would... if Heckler applied, if the APA applied, that there would not be total denial of judicial review here.

There is law to apply.

Under 437g(4)(A) a conciliation agreement by the FEC must be one that corrects the violation.

That's law to apply, and if they... the court of appeals correctly determined, if the FEC's gave mere lip service to AIPAC's disclosure obligation and dismissed our complaint saying, well, we agree with AIPAC that they don't have to do it, we have a right of judicial review, and there is law to apply.

This statutory framework contemplates active judicial involvement in the determination of appropriate remedies for violations.

Unknown Speaker: If you foresee the Court going through the standing question and then deciding in your favor, which is what you want, and then you'd say, well, then the membership issue perhaps comes up first, in which case I guess we'd have to remand it--

Mr. Schember: This--

Unknown Speaker: --why not remand it first?

I mean, why go through this standing question?

Do we have to?

Why do we have to--

Mr. Schember: --No.

I think the standing question could be pretermitted as well--

Unknown Speaker: --since the standing question may well turn on the special point here, on... the standing question could well turn on the special membership point, you see, making it more difficult for the... for us to predict that you could obtain the relief you want because of that issue being in the case, so why not do that first, and send it back?

Mr. Schember: --I suppose that would be permissible.

What I'm saying is that we certainly have standing to contend that the AIPAC contributors aren't members, and that... in that sense I don't think it... that issue pertains to standing.

What I did concede is that if Chamber of Commerce destroyed our contention that the AIPAC contributors are members, that certainly might say that we don't have standing, but it remains an open question.

It's just another legal issue in... to be decided in the case, and so I guess I'm moving a bit in your favor on... in the direction that you're going on that, Your Honor, because we have a collection of legal issues that need to be decided, the membership question, the major purpose test question, and in the way that's been discussed possibly that's linked to standing.

Presum... yes, remand for consideration of the issues in a different order I would think would be a permissible disposition.

We have raised the arguments as to why we have standing to bring this case and why it's likely that a ruling on the merits will result in the disclosure that we seek, and--

Unknown Speaker: Isn't the major purpose test necessary to prevent this statute from being applied to many, many entities and transactions that were far from the contemplation of the Congress?

Mr. Schember: --No, Your Honor.

What we're dealing with is a dual purpose organization.

The test is not necessary to protect dual purpose organizations from having their noncampaignrelated activities disclosed.

Dual purpose organizations can avoid that kind of disclosure through the simple expedient of setting up a separate organization or a special segregated fund.

Section 441b(b) expressly provides for that contingency, and then section 431 says that, well, when a corporation has set up a special segregated fund for purposes of campaign activity, only the activities of the special segregated fund constitute a political committee, and only those activities are subject to disclosure.

Unknown Speaker: Well, is that so easy?

That is, what worries me about your position on the merits is that vast numbers of organizations who suddenly send a letter to their members once, who they think are members, the... you know, Congressman Jones helped save the Brazilian cardinal, and the... the bird--

[Laughter]

--and we think that he's a wonderful thing, and really nice, and that's it, and all of a sudden they have to disclose everybody under the sun, and... you know, for all kinds of other things that really had nothing to do with that particular letter that somebody thought was a nice idea to send.

Mr. Schember: Well, two points about that.

First of all, it sounds to me like the organization that you're describing would be... may likely be constitutionally exempt under the Massachusetts Citizens for Life exemption.

Now, if you've got a small issue advocacy organization that only makes an occasional independent expenditure and that would be burdened by the administrative requirements of setting up a special segregated fund, then clearly under MCFL they're entitled to a constitutional exemption.

They have that safeguard.

AIPAC's not that kind of an organization, a large, sophisticated organization, able to meet many administrative requirements.

They haven't claimed that--

Unknown Speaker: By the way, the person, before he wrote the letter, talked to Congressman Jones and said, what do you think of that?

Oh, a great idea, he said.

I like--

Mr. Schember: --So you're saying it's a contribution, and... well, I think I have to say two things about that.

Number 1, you know, every person is presumed to know the law, and if you run afoul of the law inadvertently, but in the manner that you've described, certainly there is enforcement discretion that the FEC has, can exercise and say, now, this one time thing you did, you made a mistake, it wasn't a wilful violation, you didn't know what you were doing, you can't do that kind of thing, don't do it again, and that would be an appropriate disposition of that case.

What we have here with respect to AIPAC is years and years and campaign after campaign of extensive contributions to candidates, and the public needs to know which current officeholders were the recipients of AIPAC campaign contributions so they can know in the next election cycle who they should vote for, considering that factor.

But your hypothetical might be one that could both... that might fall either within the constitutional exemption, or that might be appropriately subject to disposition by the FEC's enforcement discretion, in that manner.

But on the facts of this case, based upon the voluminous investigation that we have here, there are very substantial campaign contributions over an extended period of time here, and I think that distinguishes this case from that hypothetical.

All we need show to establish redressability is a likelihood that a ruling on the merits will result in disclosure.

We've shown the likelihood.

The Court... not only is the major purpose test not necessary to protect against what... the danger that the FEC hypothesizes, it's not sufficient to do so, either.

Under the test that the FEC has clarified it to be, a dual purpose organization that has as a major purpose campaign contributions will be a political committee even if another major purpose of the organization is pure issue advocacy, yet under their own test, as they apply it, that organization as a whole would be a political committee and be subject to all... full disclosure.

For this reason, of all its activities, including the noncampaign activity, the test is neither necessary nor sufficient to accomplish the goal that's put forward for it, and it eviscerates the statute, because the problem is, it exempts from disclosure campaign contributions, not just noncampaign activities.

If there are no further questions, I have presented the argument that I intended to present.

Unknown Speaker: --That's all we can ask of you, Mr. Schembler.

[Laughter]

Thank you.

You're luckier than most.

[Laughter]

General Waxman.

Rebuttal of Seth P. Waxman

Mr. Waxman: I'm hoping against hope I have more than 1 minute, but let me just say that the consequences of allowing... on the merits of allowing the court of appeals opinion to stand is that every group in this country, including my family, and any association, whether it's incorporated or not, is now... has to live under the very real chill of knowing that if they... in the course of a year, a group like the Catholic Conference of the United States, in the course of a year, makes more than a thousand dollars in either contributions, independent expenditures, coordinated expenditures, or inkind contributions, all of its other disbursements and receipts have to be disclosed and--

Unknown Speaker: Well, can they set up a special segregated fund to do that?

Mr. Waxman: --Only corporations can set up segregated funds, so it... but for the fact that AIPAC happens to be incorporated it could not, but even if it could, that really doesn't get at the chilling effect that I think this Court was addressing in Buckley and Massachusetts Citizens for Life.

Chief Justice Rehnquist: Thank you, General Waxman.

Mr. Waxman: Thank you.

Chief Justice Rehnquist: The case is submitted.

The honorable court is now adjourned until Tuesday, January twentieth at ten o' clock.

Attribution:

The Oyez Project

Featured:

Steel Company v. Citizens for a Better Environment - Oral Argument

Fri, 09 Jan 2009 14:50:03 +0000

Case:

Steel Company v. Citizens for a Better Environment

Media File:

96-643_19971006-argument.mp3

Related Transcript:

1997_96_643_argument.xml

Transcript:

Argument of Sanford M. Stein

Chief Justice Rehnquist: We'll hear argument now in Number 96-643, Steel Company, also known as Chicago Steel and Pickling Company, v. Citizens for a Better Environment.

Mr. Stein.

Mr. Stein: Mr. Chief Justice and may it please the Court:

This case involves the 60-day notice period in the citizens provision of the Emergency Planning and Community Right to Know Act, and whether that period is intended to operate as a cure, thereby obviating a citizen's suit, or whether citizens may sue for wholly past violations even after cure.

As found by this Court in Gwaltney v. Chesapeake Bay Foundation, and again in Hallstrom v. Tillamook County, the overriding congressional purpose of environmental citizen provisions is to prompt compliance with environmental laws.

Litigation ought to be used as a last resort, when other methods have failed.

On receiving a 60-day notice under EPCRA, the Steel Company, a small manufacturing company, came into complete compliance, filing the 15 forms required, all within the cure period.

The respondent, Citizens for a Better Environment, sued anyway.

They alleged no current or ongoing violations.

Unknown Speaker: Let me ask you a question, please, if I may, Mr. Stein.

What if it were the EPA that were coming in asking for penalties to be imposed after the fact of a cure, so to speak, after the forms were actually filed, but the EPA then comes in and says, well, they should have been filed on X date and they weren't, and they've now filed them, but we want a penalty for every day of the nonfiling.

Under the statutory scheme, is that permissible?

Mr. Stein: Yes, Justice O'Connor, under our reading of the statute the EPA's enforcement policy comes under section 325 of the statute, a wholly different section than section 326, the citizen provision.

Unknown Speaker: Well, the citizen's suit provision I suppose is designed to be a sort of private attorneys general approach, and to let citizens pick up the slack if the EPA doesn't do it, and is there any reason why the citizens suit shouldn't have the same authority, then, to come in and seek a penalty for the failure to file on time?

Mr. Stein: Yes.

Several reasons, as we see it.

First of all, section 326 is far more limited, giving citizens a more limited enforcement and assistance role than the EPA's authority under section 325.

In the citizen provision, a citizen may commence a suit upon the failure to complete or submit the forms.

The Sixth Circuit, in analyzing the same language in the United Musical case, found that it was the failure that Congress was looking for.

EPA's authority is far broader than that.

Also, section 326(c) of the statute specifically points out that citizens are able to invoke the court's jurisdiction in the evidence of an enforcement or an injunctive remedy, and then at that time the court can apply penalties if it has jurisdiction through 326, section 326(c).

In that respect, the citizen provision of EPCRA is very similar to the citizen provision of the Clean Water Act that this Court analyzed in Gwaltney.

In Gwaltney, the Court found many reasons to find that Congress did not expect... intend citizens to sue for wholly past violations, but one of the most convincing was section 505(a) of the Clean Water Act.

There, also, the Court found that before a citizen could invoke the court's jurisdiction it had... there had to be some kind of injunctive or abatement remedy that it was seeking and then, and only then, would the Court be willing to address penalties relative to a citizens' action.

Beyond that, and further answering, we think that if... even if the court below were somehow correct that they can seek wholly past violations, we think it fails the Article III standing test because on that date any injury that would befall a citizen had been fully cured.

Unknown Speaker: What about the attorneys fees and costs that the claimant might have incurred in investigating the claim and filing it?

Mr. Stein: Justice Kennedy, the costs that they incur investigating are also costs that they cannot recover if the EPA comes in under the... under EPCRA.

They are barred from suing if EPA comes in under the--

Unknown Speaker: They can recover those costs if the violation is not cured after 60 days and the suit proceeds and they prevail, can they--

Mr. Stein: --If they prevail, then they can assert a likelihood for fees--

Unknown Speaker: --Well, but then it seems to me there may be a... you have a statutory argument.

I don't see the Article III argument.

Mr. Stein: --I think the Court has ruled that penalties alone have to... do not give a party standing.

They have to be... a standing has to accrue as an underlying part of the plaintiff's claim and just investigation costs and fees are a byproduct of the litigation.

Unknown Speaker: And what is the proposition... what is a case for that?

Mr. Stein: Diamond v. Charles.

Also, Lewis v. Continental Bank.

Unknown Speaker: That was just whether or not there was an interest in being a prevailing party per se.

I'm not sure if it said that Congress couldn't create a cause of action for attorneys fees or investigatory, preparatory fees legitimately and in good faith incurred.

Mr. Stein: I think there was language.

I don't know if it said the Congress could not, but here I don't think Congress did.

I mean, it was... well, there's some addressed--

Unknown Speaker: Well, then it's not an Article III question.

It's just a statutory question.

Mr. Stein: --We believe the statutory question here is far more important than... and... than the Court could rule completely under the statute, because under the plain language of that... it is the completion and submission of the forms, the failure of that action, that gives rise to a citizen action, and that's what United Musical found, that's what the district court found.

The--

Unknown Speaker: So on your view, then, if the compliance came after the 60-day period, let's say the time sequence is 60-day period runs, suit is filed on day 70, the defendant comes into total compliance, files all the back forms, the suit would be moot at that point, if I follow your reasoning.

Mr. Stein: --Justice Ginsburg, at that point, mootness principles would apply and the burden would shift to the defendant to show why mootness would apply and why there would be no likelihood of a recurring violation such as to relieve the court of its jurisdiction.

But whereas mootness will lie after the complaint is filed, if it is filed with Article III authority for standing, mootness standing is the plaintiff's burden.

It must be proven at the... prior to the complaint being filed, and we don't believe that they had standing in this case at the time the complaint was filed.

Unknown Speaker: You're asking us to read the provision in such a way that nobody would have an incentive to file suit.

If you say that... even when suit will properly lie, according to you, initially, that is, suit is filed before the defendant comes into compliance, you're saying that suit will be washed out when the defendant complies.

Mr. Stein: Not necess--

Unknown Speaker: Why would anybody file a suit?

I can't understand it.

Mr. Stein: --Well, first of all, I think they may file for any number of reasons.

First of all, the Congress was interested in compliance, and interested in citizen enforcement.

If the suit, which we think is properly filed after the 60 days, because that's the limit of the cure period... the burden on the defendant at that point is a heavy one to show that there's no further likelihood of an intermittent or recurring violation, and there may be cases where it is mooted, and there may be cases where it is not, but I believe Congress--

Unknown Speaker: Why shouldn't we say that... I guess we don't have to decide that issue in this case, but why couldn't the situation be that so long as you have not filed before... after the 60-day period and before suit is filed against you, you are liable for the penalty that's set forth in the civil provision.

Would that contradict your theory of this case?

Mr. Stein: --If you're filed before the suit was... before the suit was filed, but after the 60 days, I believe standing would not lie.

Unknown Speaker: If you file after suit, and after the 60 days, if you come into compliance with the law after the suit is filed and after the 60-day period, why isn't it reasonable to say that the Federal Government intended to give these private attorney generals the right to the penalties accruing?

Mr. Stein: At that point the court would have jurisdiction, Justice Scalia, and the court could apply and determine--

Unknown Speaker: You say it's mooted as soon as--

Mr. Stein: --Not necessarily.

No, I did not say it was... I don't mean to convey that it's mooted.

I do... I think that the burden severely shifts to the defendant at that point, and the defendant has a heavy burden under--

Unknown Speaker: --The penalty alone cannot suffice to sustain a suit, the right to the penalty alone.

Mr. Stein: --After... after filing, if the party did not cure within 60 days--

Unknown Speaker: Mm-hmm.

Mr. Stein: --And they did file after suit began.

Unknown Speaker: Mm-hmm.

Mr. Stein: And the court determines that there is reason for the court to retain jurisdiction, it is not moot in the court's estimation because there is a possibility of further violations, or that the allegedly illegal conduct may continue.

Unknown Speaker: Assume no possibility of further violations, it's your position that the plaintiff's entitlement to the penalty alone wouldn't make any difference?

Mr. Stein: The court at that time, after a suit is properly filed, would be able to assess whether its jurisdiction... whether the granting of penalties at that point would have some continuing effect, or some beneficial effect as to the defendant, but if it is mooted the court would lose jurisdiction, I would agree, and therefore the penalties would not apply.

Unknown Speaker: Would the penalty ever go to anyone other than the Government?

Mr. Stein: Not at all, Justice Souter.

Under section 325, the Government is the only party entitled to receive the penalties.

Unknown Speaker: But even if there were mootness, after the 60-day period ran as a result of compliance there would still be entitlement to attorney's fees, would there not, because the mootness didn't come about until after the case was in court.

Mr. Stein: If the court were to retain jurisdiction after properly receiving it, then I assume the court could then address the question of anything within its jurisdiction, including whether or not the prevailing party was the plaintiff, the citizen organization in that case, and whether or not it should receive fees.

We do not have a problem with those issues after proper filing, meaning that there is a violation that is ongoing on the date that the complaint is filed.

Unknown Speaker: Well, you're putting in this phrase, retain jurisdiction, and I... maybe Justice Scalia thought you answered his question.

I still... I'm still not sure of the answer to that question.

Let's assume that after the 60 days has run, the suit is filed, then it's cured, then it comes before the judge, the judge says there's nothing more to do, I'm going to give no... I'm going to terminate my jurisdiction now, there's no necessity for me to issue some ongoing injunction, but I am going to award attorney's fees.

Can he do that?

Mr. Stein: I believe, Justice Kennedy, he might be able to determine in that case that because the plaintiff brought the suit, and because it was cured after suit, and presumably the judge could at that point say that it was the action of suit that brought the defendant into compliance, he might be able to find that the plaintiff citizen organization at that time was the prevailing party or substantially prevailing party, as the statute reads, and award fees.

I think that would be a--

Unknown Speaker: Well, from the standpoint of mootness and Article III, the precise analysis would apply if the violation were cured before the 60 days.

Mr. Stein: --If... I disagree, because before the 60 days... Congress gave a 60-day period to cure, and Congress gave citizens the right to sue in the event... going back to the statute, in the event cured... in the event there was a failure to comply.

That is the right that Congress gave citizens the opportunity to vindicate, if it is vindicated either under the statute or under Article III as we see it, but more strongly under the statute, because we think you can decide this under the statute.

Unknown Speaker: Well, what if it is before the 60-day period that the company files the reports, but the plaintiff believes and is prepared to show that the company is likely to be a repeat offender?

Mr. Stein: Justice, in that situation it would be similar to Gwaltney, where the was a possibility, a likelihood of recurrence, and in that case the court could find that there was... that jurisdiction attaches, because--

Unknown Speaker: Even though it had been completed and filed, the forms?

Mr. Stein: --Oh, we think under EPCRA it's a very difficult standard to uphold, unlike the Clean Water Act in Gwaltney, where there was complicated--

Unknown Speaker: But you say that's possible, and you don't tie that to any language of the statute.

Mr. Stein: --I find it theoretically possible, but only on reading the statute academically.

Unknown Speaker: Isn't the significant point there's no such allegation in this case?

They don't allege, if I remember the complaint, that there's a likelihood you will not comply.

Mr. Stein: That is correct.

They agree that the violation ceases on page 14 of their brief.

They acknowledge that the violation ceases on the filing of the forms.

This is a case--

Unknown Speaker: The complaint does not allege a concern about future violations.

Mr. Stein: --It does not, Justice Stevens.

This is a case about a wholly past violation, and that is the point, and under EPCRA, which is an information-gathering and information reporting statute, unlike the Clean Water Act that the Court was concerned with in Gwaltney, where there was... I think the Court said the episodic, chronic episodic instances of violation.

This is not likely to happen here because of some complicated, especially engineered piece of equipment that might fail.

Likelihood of recurrence is extremely remote.

A party would have to be completely asleep.

So the likelihood of recurrence, the likelihood of an intermittent injury here, and that's what the Court must look at for a recurring violation, is very remote.

Unknown Speaker: Well, why... no, I mean, there was for 8 years no filing, and then it was called to their attention.

By the way, when there was a filing, was it for all the past years or only the most recent year?

Mr. Stein: No, Justice Ginsburg, they filed all 15 forms that were due within the cure period and, as we pointed out both parties rely on the GAO report, that many small companies such as the Steel Company simply were not aware of their requirements, otherwise dutifully compliant with a host of complex environmental laws, and their unawareness... their nonfiling was an innocent unawareness.

But upon being given this information, the notice, they filed, and we think that's part of the intent of Congress here.

Congress gave citizen enforcement in two stages, first with a notice and cure period, and then, and only then, if a party will not heed or cannot heed, for whatever reason, and come into compliance, then Congress gave citizens a very powerful weapon at the end of that 60 days, which was the opportunity to invoke the court's jurisdiction and seek penalties.

Unknown Speaker: Mr. Stein, can I ask you, with regard to attorneys fees and the like, they ask in their complaint for all costs in connection with the investigation and prosecution of this matter, including fees, attorneys fees and expert witness fees.

Now, do you agree that the statute authorizes the award of the investigation costs before suit was filed, or when they were trying to make up their mind whether to file suit?

Mr. Stein: I believe, Justice Stevens, they're entitled to those fees if they're a prevailing party, but not if they are not... if they can't bring suit because the defendant cured in the cure period.

Unknown Speaker: I'm asking, if they are a prevailing party, you agree they get the pre-suit investigation.

Mr. Stein: The court would be able to look into... that would be a subject before the court if they are a prevailing party in a citizens' suit, not if, as here, there was a cure--

Unknown Speaker: But the statute says under (f) that the court may award costs of litigation.

That's what the statute says, so I guess they are entitled to investigatory costs only if those are part of the costs of litigation.

Is that right?

I mean, what we're... I mean, what I would interpret the question to be is, is there something special here by way of costs that are being awarded in this case that are not normally present whenever a statute provides a winning party with costs of litigation?

Mr. Stein: --And we believe not, Justice Breyer.

We believe this is a normal investigation cost that if the EPA should step in barring them from a citizens' suit within a 60-day period, they would not be entitled to those costs.

They're only entitled to those costs as the prevailing or substantially prevailing party, and the question is, is, if there is no suit, if cure occurs during the first stage of the congressionally mandated two-stage citizen action period, is that a cost of litigation or is that a normal cost of their activities, which are to assert their interest on behalf of their members.

So we think their costs come into it if a party is not able to take heed of the 60-day notice period and not able to cure within that period.

At that point, Congress... the congressional goal is satisfied, and the congressional goals achieved.

Compliance was achieved with this law.

The citizens have information that they... the Congress entitled them to have.

Unknown Speaker: Mr. Stein, may I ask you this question: one of the arguments that is being made here is that if standing is not found, with the opportunity to go forward with penalties and, of course, get counsel fees and investigatory fees and so on as a result of that, no one is going to have really an incentive... no citizen is going to have an incentive ever to commence one of these proceedings.

My question... with that in mind my question is this: is there any requirement that when a citizens organization starts the 60-day period running it must then have concluded that it can prove a case, or could a citizens group simply come forward and say, we don't know of any reason why this particular company should not have been filing these reports.

It looks to us as thought they're covered by the law.

So we're going to put them on notice that we think they should comply and simply wait and see what happens.

In that latter instance if, at the end of 60 days, there hadn't been any compliance, then at that point the citizens organization could decide whether to go ahead and in effect make an investment in legal fees and investigatory fees to see whether it would really be worthwhile to bring action.

So that's why I ask the question.

Can they simply put them on notice, as it were, on the basis of a good faith claim that they ought to be filing, or is there some requirement in the statute or regulations to the effect that they must in effect be ready to establish probable cause, or some such thing, for a violation before they even give the notice that starts the 60 days running?

Mr. Stein: I'm aware of no provision in the statute that would require the latter.

I believe it is... the intent of the notice is precisely as you have formulated it, to put the party on notice that they may be out of compliance and that they have 60 days to cure, but if at the end of that period they don't, the court's jurisdiction could be invoked against them.

Unknown Speaker: So nobody has to make a big investment to get the 60 days running?

Mr. Stein: I don't believe so, as, importantly, most of this information is readily available through public filings on the Internet.

This is... despite what the Seventh Circuit said, it is not a huge task, we don't believe, to investigate these various instances of innocent unawareness, as the case was here, at least investment of cost, particularly for an organization that is devoted, and has 180,000 dues-paying members, devoted to this particular task.

But to be precise, we do not believe it is a very costly or time-intensive activity on behalf of the citizen organization.

Unknown Speaker: Well, if that's so, maybe these organizations could just send out standard notices to everybody.

Mr. Stein: Perhaps, Justice Kennedy, it would be a good idea to help get the word out, because as I say, smaller companies that do not have huge environmental staffs that are able to keep track of all of this have unfortunately gotten caught in this.

It would not hurt.

We were happy to obtain this information.

The Steel Company obtained it, and the first thing they did is, as a dutifully compliant company, compliant with a host of complex laws, said how do we comply, and how fast can we do it, and can we get in within the cure period, and they did, so there is no history here of a company that is trying to dodge or skirt the law.

It's quite the contrary.

Unknown Speaker: Why isn't an adequate explanation of the 60-day cure period that that's the period provided so that EPA itself might come in, instead of having the private plaintiffs do it?

Mr. Stein: It's perfectly adequate.

In fact, quite... as specifically set forth in the statute, section 326(e) says that a citizen's suit is barred.

The citizen organization is barred if EPA decides to assert its authority to enforce this law within the 60-day period.

We believe... and Hallstrom v. Tillamook looked at this.

We believe that that is one of the primary purposes of the notice, to prompt compliance, or enforcement by EPA or compliance by the alleged violator, that it is EPA's primary role to enforce these statutes and, as stated by Congress, by saying that if EPA comes into it... the case and brings an administrative or judicial action within that period, the citizen organization is barred from its complaint.

Unknown Speaker: Had that provision not existed I would... I think it would be a very strong argument that the only possible reason for the 60-day period is to give the defaulting company an opportunity to make good, and if the company makes good, then suit cannot be brought after the 60 days, but there is another explanation for the 60 days, as you said.

It's to allow EPA to come in.

Mr. Stein: But Your Honor, the same provision, the same opportunity for the EPA to come in and bar citizen action existed under the Clean Water Act when it was analyzed by Gwaltney, and the Court found the same reasoning.

The reason for the notice to EPA is to give it a chance to come in, and the reason for the notice to the alleged violator is for the alleged violator to cure.

The Court answered the question, what else could be the purpose of the notice to the alleged violator?

Unknown Speaker: In Gwaltney, though, the case turned on fairly specific language in that act, the present tense of to be in violation, and the Seventh Circuit said they thought the language of this act was different.

Mr. Stein: Mr. Chief Justice, Gwaltney used the to be in violation formula, and EPCRA uses the failure to do formulation.

Beyond that, there are not a whole lot of differences between the two provisions.

To be in violation and failure to do are both infinitive phrases.

Failure and violation are both nouns, no temporal limitation.

This is a information-gathering statute.

Unknown Speaker: There is a temporal... to be in violation, you're currently in violation.

Mr. Stein: And failure to... and the citizens can--

Unknown Speaker: Failure to do means you may have failed to do it in the past, and you failed to do it.

Mr. Stein: --In Gwaltney--

Unknown Speaker: Even though you later made good that failure, you did fail to do it.

Mr. Stein: --In Gwaltney, the argument was advanced that to be in violation also could have a temporal limitation--

Unknown Speaker: That was a bad argument.

This isn't a bad argument.

[Laughter]

Mr. Stein: --Well, we submit that failure to do is, as used here is forward-looking also, and Gwaltney studied the legislative history of the Clean Water Act... there's very little of it here in EPCRA... and the Clean Air Act, the templates that were used for citizen provisions, and found that citizen provisions are intended to be forward-looking.

Failure... understand... I'll try and make clear... I hope I make clear that failure to do is the operant... the condition before a citizen's suit can be brought.

In the absence of the failure, a citizen's suit is not permitted, so failure to do is a phrase which talks about inaction.

In the absence of inaction, the presence of action, a citizen's suit is barred.

United Musical found that.

Unknown Speaker: I would like you to go back for a minute to this costs, getting your cost.

What is your response to the following fairly simple argument that has to do with whether their injury is redressable, which I take it is the standing question?

You'd say, well, how did this hurt you, their violation?

Answer: you are an environmental group.

The violation hurt you in that you were forced to live in a world without information, or you had to spend some money to cure the lack of information, and the spending of money involved putting the company on notice, and then they cured it.

And so what we do in this statute is, we don't allow you in respect to past violations... we don't completely help you out, but we help you a little.

Either they will be stopped in their tracks by the court because they didn't comply, or if they did comply, we will give you back some of the money you spent getting them to comply, and therefore we are redressing your harm, not all of it, but some of it.

Mr. Stein: Your Honor, if it were that simple, it might be easier, but they are not asking for their attorneys fees alone.

They're asking for $537 million in penalties.

Unknown Speaker: But I have to worry about a different question.

I take it one of the questions that I'd have to answer in this case is whether there is standing, and the reason you argue there is not is because their injury is not redressable insofar as they were injured, it was redressed.

This lawsuit doesn't redress it.

Hence my question.

Is the lawsuit aimed at redressing a different part of their injury, namely, the cost of investigating the matter and bringing it to the attention of the company, and the lawsuit gives them some of that money back.

Mr. Stein: At the time the complaint was filed, they had no injury.

Their costs are a byproduct of their litigation.

Every party who had some cost--

Unknown Speaker: You're saying the statute does not give them back their cost except insofar as they are related to this litigation, which took place as part of the litigation decision, not as the other decision?

Mr. Stein: --That is correct.

Unknown Speaker: And how do I look that up?

Mr. Stein: You find it in the statute, which says that they are entitled to receive their cost if they are the prevailing or substantially prevailing party, but since they can't get to court because there is no standing on the day the complaint was filed, they don't have the opportunity to prevail, Congress gave the defendant in this case, who should not be a defendant, the opportunity to cure, obviating the suit.

And when Gwaltney studied this it said, you know, the citizens don't get their pre-investigation costs if EPA were to come in either, so the Congress was not necessarily that interested in those costs, only in the event a party could not heed the 60-day notice, could not come into compliance, we have severe costs, then they could get those extraordinary costs as being the substantially prevailing party.

Mr. Chief Justice, I'd like to reserve the balance of my time.

Unknown Speaker: Very well, Mr. Stein.

Mr. Strauss, we'll hear from you.

Argument of David A. Strauss

Mr. Strauss: Thank you, Mr. Chief Justice, and may it please the Court:

Let me begin with the language of section 326 of EPCRA, the citizen's suit provision, both what it is and what it is not.

Section 326 provides that a citizen may bring a suit for a failure to complete and submit a form under section 312, or under section 313.

That citizen's suit provision does not occur, that form of citizen's suit provision does not occur anywhere else.

The kind of citizen's suit provision that was before the Court in Gwaltney used the term, alleged to be in violation.

That provision is ubiquitous throughout citizen's suit provisions that Congress has enacted.

Alleged--

Unknown Speaker: I have three statutes that use the word, occur.

One is CERCLA, one is RCRA, and one is TOSCA, and they all use in the venue provision the word occurred, and then in the liability provision... they're rather parallel to this one, aren't they?

Mr. Strauss: --The venue provision uses the word occur, Justice Breyer.

Unknown Speaker: Yes.

Mr. Strauss: What I'm focusing on is the provision that authorizes citizen's suits, which in those three statutes contains the phrase, alleged to be in violation.

Unknown Speaker: Right, and so they're parallel to this one.

Mr. Strauss: No, this statute does not contain the phrase, alleged to be in violation.

Unknown Speaker: Well, in violation of--

Mr. Strauss: It says, failure to complete and submit a form.

The alleged to be in violation formulation, which is the formulation that the Court held in Gwaltney, a case with facts somewhat parallel to this, led to the conclusion for which petitioners contend.

That formulation does not occur in this statute.

What this statute contains is the phrase, failure to complete and submit a form under section 312 and section 313.

The evidence that this is a deliberate choice by Congress is really quite overwhelming.

In the very same public law that enacted EPCRA, Congress also enacted the Superfund amendments.

The Superfund amendments contain a citizen's suit provision.

That citizen's suit provision used the alleged to be in violation formulation.

EPCRA used a different one.

Unknown Speaker: --It couldn't have used that language here.

I mean, if he complies... well, anyway, I'm sorry.

I'll withdraw my question.

Mr. Strauss: Justice Stevens, then they could have used that language.

Alleged to be in violation, had it been used in EPCRA, would lead quite logically--

Unknown Speaker: Mr. Strauss, the violation here, the only requirement is that you file a form, so then it's logical to talk about failure to file or submit a form.

In the other statutes, perhaps more encompassing, there would be a reason to use language, alleged to be in violation, because there were many things that could violate the statute.

Mr. Strauss: --Well, Justice Ginsburg, there's... the requirement in EPCRA is that you file a form by a certain date, and what the statute says is, failure to complete and submit a form under sections 312 and 313.

Sections 312 and 313 contain deadlines, and it seems to us that if you do not you are guilty of a failure to complete and submit a form under section 312 if you don't meet the deadlines in 312.

Unknown Speaker: Well, you don't have to read it that way.

I mean, it does possibly suggest to you that if the form is completed and filed, it meets the requirement regardless of when.

Mr. Strauss: Then I think--

Unknown Speaker: It's a little... it's open to that interpretation, isn't it?

Mr. Strauss: --Well, Justice O'Connor, then I don't know why the language about under that section would be in the statute, failure to complete and submit a form under section 312.

In fact, I'm--

Unknown Speaker: Because 312 is the statute that says the forms will be filed.

Mr. Strauss: --Well, I'm actually... I'm actually omitting a part of the statute.

It says, failure to complete and submit an inventory form under section 312, so the reference to section 312 wasn't even needed to say which form they had in mind.

And not only that, Justice O'Connor, but it's quite clear from the structure of the statute and from the purposes of the statute that timeliness is not an incidental requirement.

Timeliness is at the core of what the statute is about.

Unknown Speaker: Well, but the 60-day notice provision has to be factored in, too.

It must have been there for a purpose.

Mr. Strauss: Well, absolutely, Justice O'Connor, and Mr. Stein referred to it as a 60-day cure provision, which is a curious reference for a number of reasons.

Here's one.

The Clean Air Act contained the phrase, alleged to be in violation.

After this Court's decision in Gwaltney, Congress... it also has a notice period.

After Gwaltney, this Court amended, or the Congress amended the Clean Air Act to include the phrase, or to have violated, making it clear that Gwaltney was not to apply to the Clean Air Act, but Congress left the notice period intact in the Clean Air Act.

Unknown Speaker: But wasn't it more than that?

Wasn't it simply that they didn't... that they violated it on one occasion, but wasn't there something built into that amending language that suggests that the person was a repeat violator?

Mr. Strauss: Yes, exactly so, Justice Ginsburg.

Alleged to have violated, if there is evidence that the violation has been repeated, but that could still be entirely in the past.

It could be a violation in the past, repeated in the past.

Unknown Speaker: Such evidence would allow this suit to proceed anyway, on the theory that there's likely to be a repetition.

Opposing counsel acknowledges that.

Mr. Strauss: I think that's right, Justice Scalia.

What--

Unknown Speaker: I don't think... how you can agree with that, because the complaint doesn't allege that.

Mr. Strauss: --Well, Justice Stevens, what we do in the complaint, we ask for an injunction that will allow us to look at their property in the records.

Unknown Speaker: --and so forth, but you don't allege there's any risk of continuing violations.

Mr. Strauss: Justice Stevens, we don't know.

We don't know what the story is.

All we know is, they didn't file.

Unknown Speaker: Then your burden, normally you have to make an allegation then try and prove it.

Mr. Strauss: Well, we don't know whether they would or would not.

Unknown Speaker: Well then, you don't have any cause of action.

Mr. Strauss: Well--

Unknown Speaker: If you must know something to bring a suit, and you don't know it, you don't have a suit.

Mr. Strauss: --Justice Scalia, we don't see anywhere in the statute where it says this has to be a repeat violation.

It says there has to be a failure to submit a form under a section with a deadline, a deliberately chosen provision that differs from all other citizen's suit provisions.

Unknown Speaker: But that's fine.

You could allege that they didn't do this on this one occasion.

You say that's all that this statute required.

Mr. Strauss: That's right.

Unknown Speaker: I thought the question was, are you asserting a continuing violation, or any reason to project that there might be one, and I think the... your answer candidly is, the statute didn't require it and we didn't plead it.

Mr. Strauss: What we pled was, what we asked for was authorization to inspect their property.

We may know down the road whether they are right in saying that they simply didn't know about the statute and now they've gotten everything in order, or maybe that's not the case.

We just don't know.

This complaint was dismissed.

But the statute doesn't contain any reference to repetition.

The statute says, a failure to complete and submit.

Unknown Speaker: No, but it's relevant to the question of standing, because we're trying to focus on exactly what--

Mr. Strauss: Mm-hmm.

Unknown Speaker: --your injury is, and if your injury is a fear of continuing violations, you could allege that and presumably prove it, if they were people who didn't obey the law over and over again.

But here, the facts don't seem to suggest that, and it's not alleged in the complaint.

The only injury that you refer to in the briefs and all is a costs of investigation which you want to get reimbursed for, but you don't allege in your complaint you have any costs of investigation, either.

Mr. Strauss: Well, we allege in the complaint that we undertook an investigation.

Unknown Speaker: No.

You generally follow what happens in the environmental community.

I don't think you allege you spent any money beyond your normal, routine expenses in investigating this company.

Mr. Strauss: Oh, absolutely, Justice Stevens.

We conducted an investigation of this company--

Unknown Speaker: You don't allege it, is what I'm saying.

Mr. Strauss: --I think we allege in there that we conducted an investigation of the company, but I'll find the page reference.

Unknown Speaker: If it would suffice for standing for everybody to get the costs of bringing the suit, gee, everybody would have standing for any suit at all.

Mr. Strauss: Justice Scalia, that's--

Unknown Speaker: You know--

Mr. Strauss: --That's right, but that's--

Unknown Speaker: --whatever it cost you to bring the suit gives you standing to bring the suit.

Mr. Strauss: --Here's why this statute is... here's why this statute is different, Justice Scalia, and why that argument, which is, of course, right, does not apply, and the point Justice Kennedy and Justice Breyer made in their questions to my colleague.

In... before we could file the notice, we had to conduct an investigation to find out information that they, had they been complying with the law, would have made readily available.

Because they didn't comply with the law and make this information available, we had to dig it out.

If we win the case, we'll get the money back that will compensate us for doing work we only had to do because they didn't give us the information.

Unknown Speaker: Well, isn't that a simple matter?

As your opposing counsel said, it's on the Internet whether or not they filed the report.

If the report had been filed, there it would be.

Mr. Strauss: Whether they filed the--

Unknown Speaker: So you find out they didn't file it.

Mr. Strauss: --Whether they filed the report is on the Internet, Justice O'Connor.

What is not on the Internet is that they use and release large amounts of hydrochloric acid from their premises.

We can't go on their premises.

We have to put... piece together from various... from tips from people in the community and various sources of information--

Unknown Speaker: Well, you don't need much of that.

You know what the companies in the business--

--Is that--

--are doing.

The gist of the action is failure to file the report, not trying to show the report is untrue.

Mr. Strauss: --In this case they filed no report.

Because they filed no report, we had to dig out information that should have been publicly available.

The purpose of the act is to make this information available to us and our members.

It wasn't, because they violated it.

Unknown Speaker: So you say you would have benefited had they filed their report, because you wouldn't have had to dig out the information yourself.

Mr. Strauss: That's right, Mr. Chief Justice, or the reverse of that, that because they didn't file reports, we had to dig this information out.

Unknown Speaker: Why did you--

--You dug it out for some independent purpose, not just to try to show that their report might be false?

Mr. Strauss: Well, they filed no report.

We dug it out to determine whether they had failed to file a report.

This goes to the--

Unknown Speaker: Why do you need to dig it out in order to determine whether they failed to file a report?

Mr. Strauss: --Excuse me.

Whether they failed to file a report that they should have filed.

Whether they had on their premises the kind of substances that trigger the obligation to file a report.

Unknown Speaker: Well, what is your answer to Mr. Stein's point in responding to one of my questions that you didn't have to dig at all?

If you had any reasonable suspicion that they should have filed a report, all you had to do was put them on the spot and say, we claim you should have, the 60 days are running, and if at the end of the 60 days they had not filed a report, then you could have... you would have had a basis for saying... or you could have made a decision at that point as to whether to invest something further into this investigation, but you didn't have to do the digging, according to him, that you claim you did.

Is he wrong?

Mr. Strauss: Justice Souter, the notice provision says notice of the alleged violation.

I think if we sent the petitioner just a general notice that said, we think you're violating EPCRA, with no specifics, they would be justified in coming in when we brought suit and saying, you didn't give us 60 days' notice of the alleged violation.

You have to tell us more than just, we think you're violating the law.

Unknown Speaker: Well, all you'd have to do is say, we think you're discharging certain substances into the air, you've filed no report, and we think you have a duty to do so.

Mr. Strauss: Well, we have to determine that they are discharging or have on their premises certain substances, which it's not easy to do.

It's not easy to determine not only certain substances, but the quantities have to exceed certain thresholds.

Unknown Speaker: You don't have to know the details.

Even if it's just an ounce there's a duty to file... maybe there's a minimum threshold.

Mr. Strauss: There's a threshold.

They have to exceed the threshold.

Unknown Speaker: What do you say about Mr. Stein's answer to my question.

He had a pretty good answer, I thought, that he said that the... as far as the harm goes in respect to your not having the report filed, well, that was cured, so this suit doesn't aim to get you that, and as far as the costs go, in paragraph (e) of your complaint what you actually ask for is to award the plaintiff all of its investigation and prosecution costs and others as authorized by section 326(f), and then he says, if I read section 326(f) I'll see that it authorizes litigation costs, pure and simple, and so it can't help you redressing that kind of harm without opening the door to Article III being no limitation on the lawsuits.

Mr. Strauss: Justice Breyer, the statutory provision authorizes an award of litigation costs.

This Court has said actually that a more narrow provision authorizing just attorney's fees that the work must be useful and of a type ordinarily necessary.

That's the standard the court has used.

Unknown Speaker: I don't think attorney's fees is narrower.

I think it's broader.

I mean--

Mr. Strauss: Well, this says litigation costs--

Unknown Speaker: --litigation costs is a--

Mr. Strauss: --Well, this says litigation costs... including attorney's fees and expert witness fees... suggesting that it's broader.

Unknown Speaker: --Well, necessary to redress something, not necessary, as it were, in a circular fashion, merely to be in a position to claim attorney's fees--

Mr. Strauss: Yes.

Unknown Speaker: --or investigatory fees, so your claim is still tied to an obligation to come up with some injury that can be redressed by the suit, and number 1 there is no claim here that there's any further redress that you can get for the past failures.

Everything that can be known is now known.

There is no allegation, as I read it, that in fact there is a likelihood of violation in the future.

Number 3, if you make your claim for the penalties, you don't get one red cent of that penalty money, as I understand it, so that the only thing that you can obtain that you do not now have is the attorney's fees or the investigatory fees, and they are tied, it seems to me, to litigation which has got to give you some other benefit.

In other words, they alone cannot under the statute justify it.

So I guess my problem is, if I construe the statute the way you want me to construe it, it seems to me there is a very serious Article III question, and it makes sense to construe the statute in a way which will not raise this Article III question.

What's wrong with that argument?

Mr. Strauss: Let me first address the point about circularity, Justice Souter, because I do understand the circularity point, and here is why we are not making a circular argument about attorney's fees.

One of the injuries they inflicted on us was not giving us information we and our members had a statutory right to.

As a result of that, we had to dig out that information ourselves.

If we win, we get our costs of digging that out, therefore our injury is redressed.

A suit under the Clean Water Act, you don't have to clean up the water.

Unknown Speaker: But you're not saying, are you, that the statute gives you a statutory right to that independent of the section that refers to litigation costs?

Mr. Strauss: The litigation costs provision is the provision that gives us a right to that--

Unknown Speaker: Okay.

Mr. Strauss: --To those expenses.

The reason it gives us a right to those expenses, to answer Justice Breyer's question on that score, is, we couldn't have signed a Rule 11 statement had we not conducted that investigation.

We couldn't have signed a statement saying we believe they have hydrochloric acid on their premises had we not gone out and dug up that information.

Unknown Speaker: You certainly could have at the time you filed your complaint, because they had already filed their reports which told you those facts.

Mr. Strauss: Well, but we had to--

Unknown Speaker: That's when you have to file your Rule 11 statement.

Mr. Strauss: --Well, but the complaint had to follow on a notice of the alleged violation, otherwise the complaint would be jurisdictionally barred.

Unknown Speaker: In other words, Rule 11 applies at the time you file the complaint.

You had all the facts then.

Mr. Strauss: Well, that's right, but then it's a jurisdictional prerequisite to the complaint.

Unknown Speaker: In fact, it also seems clear to me as we talk about it more that at the time you filed the complaint your principal injury, which was you were denied this information for a time when you were entitled to it, you had got the information by the time you filed the complaint.

Mr. Strauss: Justice Stevens, what the statute guarantees is timely information.

People who moved into petitioner's neighborhood--

Unknown Speaker: I understand.

Mr. Strauss: --in 1990 aren't benefited by knowing in 1995 that they've been exposed--

Unknown Speaker: You are not going to get any redress in this complaint for harms caused by your failure to have that information 3 months ago.

You don't get a remedy for, we had to close our windows to keep the odors out, or something like that.

You don't get relief for that.

Mr. Strauss: --No.

That is the injury.

That is the injury, Justice Stevens.

The redress--

Unknown Speaker: --for which you are not redressed by this proceeding.

Mr. Strauss: --That injury... that injury that we did not have the information is redressed only to the extent that when we dug it out we will now get paid back for mitigating the injury they inflicted on us.

Unknown Speaker: Mr. Strauss, in attorney's fees provisions, I mean, there are many in many statutes, and I had thought that the Congress tried more or less to be careful about when it is talking about litigation fees, that is, fees generated post complaint, and fees that happen because of investigation, fees at the agency level, and when Congress speaks of litigation fees, that generally has meant while you're in court, and when it talks about fees before the agency or investigation, that's for that earlier period.

But here, the term is litigation fees.

Mr. Strauss: It's litigation costs, Justice Ginsburg, and I agree this would not apply to an agency proceeding, but the Court has made it clear that litigation costs or attorney's fees include work that goes into developing the complaint, as, of course it would have to, investigation you have to do in order to develop, as in the Court's words, the work associated with the development of the theory of the case, and the drafting of the initial pleadings.

That sort of pre-complaint work has to be covered by the term.

It's an integral, indispensable part of litigation.

Unknown Speaker: Yes, but you're saying that this material is... I mean, it seems to me you're arguing that it's two different things.

First you're arguing it is an independent damage and not associated with attorney's fees because we wouldn't have known what stuff was in the air.

Then, you get damages for this by calling it attorney's fees, or litigation... which is it?

Mr. Strauss: The question--

Unknown Speaker: Did you do this investigation in order to bring the lawsuit, in which case you can't rely on that for standing, or, did you do it not in order to bring the lawsuit, in which case it's not part of your cause of action?

Mr. Strauss: --As I understand the standing issue, Justice Scalia, the question is, are our injuries being redressed?

If we win this lawsuit, our injuries will be redressed.

They'll happen to be redressed under a provision that says, litigation costs, but that's immaterial to the Article III question.

Unknown Speaker: It depends on why they were undertaken, why these investigations were undertaken.

Were they undertaken in order to bring this lawsuit?

In that case, the statute gives you a right to them, but I question whether you have standing--

Mr. Strauss: I think they were--

Unknown Speaker: --have Article III standing.

On the other hand, were they conducted not in order to bring the lawsuit, but just because you wanted to know what was out there in Hyde Park, or wherever, in which case you clearly would have standing, but you have no cause of action under this statute.

Mr. Strauss: --Well, they were undertaken for both purposes, Justice Scalia.

What CBE does is to find out information about the communities and if someone is in violation of the law bring suit against them, but I don't know why our purpose in doing this should be material to the redressability inquiry.

Our injury will get redressed.

The fact that it will get redressed under a litigation cost rubric, I don't see where that bears on the Article III problem.

Unknown Speaker: Because it relates to whether they constitute litigation costs.

If you would have done this stuff anyway, they're not litigation costs, which is all that you've asked for.

Mr. Strauss: Well, that goes to the statutory question of whether they are litigation costs.

Unknown Speaker: Another reason it relates is because, if you say that giving a person litigation costs is sufficient to create an Article III case, then there is virtually... I mean--

Mr. Strauss: Yes.

Unknown Speaker: --expanded... it's un... you know--

Mr. Strauss: No, I--

Unknown Speaker: --Congress--

Mr. Strauss: --I--

Unknown Speaker: --that's the problem.

But if you read it the other way, it seems to make a certain amount of sense.

Those instances where the company might not comply in the future, you allege that, ask for an injunction, and there you have no standing problem.

Mr. Strauss: --Well, we--

Unknown Speaker: In those cases where there's no significant risk of that at all, you can't.

Mr. Strauss: --We--

Unknown Speaker: But of course, then, there wasn't really a case.

Mr. Strauss: --We... well, we do ask for an injunction in this case.

We do ask for an injunction to look at their materials.

As for the question of the circularity and supporting any case, what's different about this statute is that in order to bring this suit we have to remedy the injury that was inflicted on us in order to bring the suit.

Usually, litigants don't have to do that.

Unknown Speaker: Thank you, Mr. Strauss.

Mr. Strauss: Thank you, Mr. Chief Justice.

Unknown Speaker: Mr. Gornstein, we'll hear from you.

Argument of Irving L. Gornstein

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

Our position is that EPCRA authorizes a citizen's suit for failure to file timely reports when the reports are filed only after notice of an intended citizen's suit.

Unknown Speaker: Do you also take the position in the case of suits against the Administrator?

If the Administrator is given 60 days' notice, and then before the 60 days expires begins to take the corrective action, can the plaintiffs still sue and recover attorney's fees?

Mr. Gornstein: They could not recover civil penalties for sure, against the Administrator.

The question would be whether there was a sufficient likelihood of recurrence to give them Article III standing.

That would be the issue--

Unknown Speaker: Gee--

Mr. Gornstein: --in that sort of case, so--

Unknown Speaker: --Well, if it's that, then how do you run across the problem here that they haven't alleged anything about recurrence?

Mr. Gornstein: --Well, I... first of all, I read the complaint a little differently to be ambiguous on that point at (5) of the Joint Appendix.

It says, the right to know about such releases and its interest in protecting and improving the environment and the health of its members have been, are being, and will be adversely affected by the defendant's action in failing to provide timely and required information.

It doesn't speak backwards, it doesn't speak forwards.

It speaks in terms of the language of the statute there, and--

Unknown Speaker: It sounds as if what it's saying is their failure to file in the past will continue to hurt them in the future.

Mr. Gornstein: --Well, that's one way of reading it, but they also seek an injunction that looks towards future compliance, it seems to me, that might sort out that ambiguity a little.

And beyond that, Justice Souter, even if this particular... to answer your complaint about the, shouldn't we interpret this more narrowly in light of the constitutional question, even if this particular complaint doesn't allege what is sufficient for a reasonable likelihood of occurrence, that wouldn't mean that some plaintiffs couldn't, and therefore this statute ought not to be interpreted more narrowly than it is, because certainly the--

Unknown Speaker: Oh, I'm not suggesting the... or, I didn't mean to suggest by my question that the statute should be interpreted so narrowly as to preclude standing if there were an allegation of either a continuing violation or the probability of a future violation, but I'm concerned about the interpretive question when there is no question of continuing violation in the sense that they file everything that can be filed with respect to the past, there is no allegation, and we'll leave the question of ambiguity aside for the moment, of the likelihood of a future violation, there is no penalty that can be recovered that will go into the pocket of the private plaintiff, and the only thing which is in issue is the issue of attorney's fees or investigatory fees for the time prior to the moment when litigation could be begun.

That's the scenario in which it seems to me there is an Article III, a serious Article III question, and it's on that scenario that I would suggest it might be wise to interpret the statute narrowly to avoid having to reach that issue.

Mr. Gornstein: --Well, let me just define the class of plaintiffs who have a cause of action here and then say why we think that there's no Article III problem.

The class of plaintiffs who have standing are only those class of plaintiffs where the defendants files the report only after receiving notice of an intended citizen's suit.

That is what this statute authorized.

We derive that not just from the plain language of the citizen's suit provision, which says that you can sue for failure to file untimely reports, but by a contrast between the notice--

Unknown Speaker: It's not in that language.

It doesn't say that.

Failure to complete and submit reports under section so-and-so.

Mr. Gornstein: --Right, and the most natural reading of under in that context is that it incorporates the requirements from the reporting provisions so that they did not have to be repeated all over again in the citizen's suit provision, and one of those requirements is that there has to be timely reports, so a failure to submit and complete reports under those reporting provisions encompasses a suit for the filing untimely reports just as it encompasses a suit for inaccurate information in those reports.

Unknown Speaker: Well, it may, but do you agree that there is nothing further that can be done to redress the prior failure?

Mr. Gornstein: And that's why the Article III question turns on the reasonable likely... the Article III standing question is whether there's a reasonable likelihood of recurrence in that situation, and we submit that the voluntary cessation--

Unknown Speaker: May I interrupt you there, because it's quite important.

Mr. Gornstein: --Okay.

Unknown Speaker: Then you're saying the reasonable likelihood of recurrence is critical to the standing issue.

Mr. Gornstein: It is.

Unknown Speaker: And that is not alleged here.

Mr. Gornstein: I--

Unknown Speaker: And you say, well, it might be in other cases, but assume it were alleged in another case but not proved.

It's a very difficult thing to prove, if you have a company like this with a history of just an inadvertence and so forth.

You are saying the plaintiff would have to prove there is a reasonable likelihood they would not file in the future.

Mr. Gornstein: --No.

There is--

Unknown Speaker: They can allege it without proving it?

Mr. Gornstein: --There is a... no.

It has to be alleged that there is a sufficient likelihood of recurrence.

Unknown Speaker: All right.

Mr. Gornstein: But there... the presumption would come that in this scenario where somebody files a report only after being given notice that he's going to be sued, there should be a presumption that there is a sufficient likelihood of recurrence to give the plaintiff Article III standing--

Unknown Speaker: Why, any more than if the police engaged in a certain kind of tactic and were told that that's not good to do, that they're not going to do it any more?

There are many cases where it's easy to allege continuing violation.

Mr. Gornstein: --Well, I think if this Court's voluntary cessation cases do say that when someone comes into compliance only after the commencement of litigation there is a--

Unknown Speaker: But there is a commencement of litigation.

Mr. Gornstein: --I realize that, but I want to start with the principle that the Court has established--

Unknown Speaker: That's not Article III.

That's entitlement to an injunction.

Mr. Gornstein: --No, it's an Article III doctrine that the Court?

Unknown Speaker: It's mootness, and in a case called mootness... there was a case under the Constitution.

There's no argument.

Do you think those should be parallel?

If they're parallel, I don't know what that's going to do to standing law.

I haven't really thought that through.

It never occurred to me that those two things were parallel.

Mr. Gornstein: They are parallel in an Article III sense, Justice Breyer.

Unknown Speaker: So in any case in which the possibility of recurrence prevents mootness, in any such case, a plaintiff would have standing despite the absence of any... of any ongoing violation.

That's a pretty broad--

Mr. Gornstein: That there would be a prudential standing barrier at that point, because the Court has not carried on on its own the same rules at the standing stage, the same presumptions at the standing stage that it has employed at the mootness stage, but as an Article III matter, any time somebody comes into compliance only because someone has either told them, I'm going to sue you or somebody has filed a lawsuit, there's a presumption.

Now, that presumption, I hasten to add, can be rebutted.

Unknown Speaker: --What's the presumption--

--What's the argument for the presumption?

--based on?

Mr. Gornstein: The voluntary cessation cases that we're relying on include United States v. W. T. Grant, City of Mesquite v. Aladdin's Castle, and a whole series of cases.

Unknown Speaker: Are they based on--

--All they show is that if there was originally standing, that there was... it was established that there was going to be a continuing violation.

That simply does not eliminate the prior established standing.

It's a huge leap from that to say that in and of itself it establishes standing.

Mr. Gornstein: No, I don't think it is a huge leap as an Article III matter, because as an Article III matter, the plaintiff at that stage of the litigation has to have a sufficient interest for Article III purposes to carry on the litigation.

If the... if it... let's say things had been remedied 1 day after this litigation commenced, 1 day after, you would apply the voluntary cessation cases and you would say there is a presumption that there is a sufficient likelihood of recurrence to keep this case alive, and that could be rebutted only if the defendant has a heavy burden.

Unknown Speaker: I would agree with that if the complaint alleged before the voluntary compliance occurred that this person was in violation and would continue in violation.

Mr. Gornstein: But we have a situation, though, where the person has cured that original violation, and the plaintiff at that point has the burden of showing that he has a continuing interest in the litigation.

The only way he gets there is through a presumption.

Unknown Speaker: All right, but let's allege it at least.

I mean, look, this seems like the simplest approach is also the best approach.

The simplest approach would say, in those instances where there's some likelihood of recurrence, the lawsuit's serving an excellent purpose.

The lawsuit is.

And in those cases where there is no likelihood whatsoever, the only purpose it's suing is perhaps through the litigation cost thing to give them some of their money back.

Well, that would be the simple approach, and why not follow that simple approach?

Mr. Gornstein: Well, I think that there's no problem with carrying over the idea that there has to be an allegation, but I think that the important point is that there has to be a presumption with that allegation--

Unknown Speaker: What's the presumption based on?

Is it based on our judicial notice that there's an empirical likelihood that when you violate something once, you'll violate it again?

Mr. Gornstein: --It's not an empirical likelihood, but a sufficient likelihood in the scenario where the person only comes into compliance after the commencement of litigation.

If somebody is coming into compliance--

Unknown Speaker: Why is that a likelihood here, when one of the problems is, is that this company just didn't have notice of the statute?

It just didn't know about it?

Mr. Gornstein: --Well, that's what the company asserts, Justice Kennedy, and that would be something that would--

Unknown Speaker: Isn't this going to be a likelihood in a significant number of these early cases?

Mr. Gornstein: --Well, this is no longer at the--

Unknown Speaker: I don't know what your presumption is based on.

Mr. Gornstein: --There's no longer... we're far distant from the time in which this statute was enacted at this point.

If the Court has--

Unknown Speaker: Thank you, Mr. Gornstein.

Mr. Stein, you have 4 minutes remaining.

Rebuttal of Sanford M. Stein

Mr. Stein: Relative to the term under, the term under appears 27 times in section 326, the citizen provision of EPCRA.

We assert in our briefs that under simply relates back, identifies the section of the statute that the citizen opportunity refers to.

Unknown Speaker: But isn't it equally reasonable to think that it refers to in compliance with the provisions of, rather than just the statute by name?

Mr. Stein: Mr. Chief Justice, Ardonesti v. INS says that the term under should be taken from the context of the statute, and the--

Unknown Speaker: I don't think we need that case to tell us that.

[Laughter]

Mr. Stein: --Well, in any event--

Unknown Speaker: --what was the name of that case--

Mr. Stein: --in the context of this statute, though, I think in the context of the history surrounding the statute, and the context of the way this Court has analyzed citizen suit provisions as being forward-looking, under simply is a relation back.

Again, they... respondent suggests that under means in accordance with, but at section 326(a)(1)(B)(iv), and again in section 321(a)(1)(C), Congress did use the in accordance with formulation, and therefore Congress knows how to say, in accordance with, if it wishes to incorporate the specific provisions of the related-to section, and it knows how to use under, as it did 27 times.

So we think the better reading, as the United Musical Court looked at it.

Under simply relates back, and did not get into what that Court--

Unknown Speaker: --So you think if you filed a statement of emissions that was entirely wrong, all the elements and all the quantities are wrong, you'd... suit would not lie?

Mr. Stein: --No, Justice Scalia.

We--

Unknown Speaker: It would have been filed under that provision.

Mr. Stein: --The... but it's also--

Unknown Speaker: It's just not in compliance with it, that's all.

Mr. Stein: --No.

We think that the complete portion of the complete and submit language suffices for that.

A form would certainly not be complete--

Unknown Speaker: It's completed.

There's no blank in the whole thing.

He just writes in the wrong elements and the wrong quantities.

Mr. Stein: --But we think Congress would not give such an obviously glaring omission in a statute.

The complete language connotes some kind of completeness in terms of proper and accurately complete.

That's what complete seems to me.

Unknown Speaker: But the language certainly is open, and if it's open, why wouldn't it make a lot of sense to say, in the instance where there's some reason to think they'll do it again, they did it before, maybe they'll do it again.

Or they didn't do it before, maybe they won't do it again.

In such a case, it authorizes the suit.

Mr. Stein: It would be inconsistent to apply... if we're talking about under, still, and the timeliness element, it would be inconsistent to apply the timely provisions of section 312 and 313, because Congress had readily available options which it used in other statutes.

It could have said, failure to complete and timely submit.

It could have said, failure to have completed and submitted.

It had many options.

It could have given the opportunity to--

Unknown Speaker: Of course, it could have used the language it did in all these other statutes, too.

But what's your response to his argument when Congress amended the other statute in response to Gwaltney they just didn't adopt this route?

Mr. Stein: --Well, by amending the Clean Air Act in 1970... 1990, to say that the... they can sue for a past violation in the event there is evidence of a repeated violation certainly doesn't amend EPCRA.

It only amends the Clean Air Act, or any of the other statutes that use these various formulations in citizen's suits.

United Musical drew strength from the fact that Congress amended the Clean Air Act but not EPCRA to say EPCRA must mean what the citizen's 60-day cure periods mean in 17 other statutes, all 17 of which were cited in a footnote in Hallstrom.

So looking at the case as a whole, looking at the context, we think that--

Unknown Speaker: A later Congress' amendment doesn't necessarily show what the earlier Congress meant, anyway.

I mean--

Mr. Stein: --No.

Unknown Speaker: --It's as reasonable to think the amendment was meant to change what preexisted as it is to think that it was meant to confirm what preexisted, isn't it?

Mr. Stein: But we don't think there's any likelihood that Congress would have done that without citing any of that in its legislative history of the Clean Air Act.

Chief Justice Rehnquist: Thank you, Mr. Stein.

Mr. Stein: Thank you.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Lujan v. Defenders of Wildlife - Oral Argument

Fri, 09 Jan 2009 14:49:36 +0000

Case:

Lujan v. Defenders of Wildlife

Media File:

90-1424_19911203-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: We'll hear argument first this morning in No. 90-1424, Manuel Lujan v. The Defenders of Wildlife.

Mr. Kneedler.

Mr. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court:

The Eighth Circuit, in this case, invalidated a regulation issued by the Secretary of the Interior in 1986 to interpret the geographic reach of the first sentence of section 7(a)(2) of the Endangered Species Act of 1973.

That sentence provides that each Federal agency, in consultation with the Secretary, shall ensure that any action it authorizes, funds, or carries out, is not likely to have either one of two consequences: first, jeopardize an endangered or threatened species or, second, adversely modify habitat that is determined by the Secretary, after consultation with affected States, to be critical for the species.

The Secretary, from the outset, has construed the portion of section 7(a)(2) that concerns critical habitat of a species not to apply in foreign countries, because the reference to affected States gives it a domestic focus, and because application in foreign countries would present practical difficulties and impose this Nation's environmental laws and land use planning on foreign countries.

Neither respondents nor the courts below have challenged that construction.

In the 1986 interpretive regulation at issue here, the Secretary concluded, for similar reasons, that the portion of the same sentence that concerns actions that affect the species themselves likewise does not apply in foreign countries.

The court of appeals invalidated that interpretation, thereby setting aside the uniform interpretation of not only the agencies charged with administering the act, but also the agencies engaged in furnishing assistance to foreign governments for projects in their countries.

The court of appeals erred in two fundamental respects.

First, the court should not have even reached the merits of the validity of the regulation, because the respondent organizations do not have standing to challenge it.

The respondent organizations wholly failed to carry their burden of showing that any of their members suffered actual or threatened injury as the result of U.S. assistance to a project in a foreign country affecting their ability to view wildlife.

Unknown Speaker: Mr. Kneedler, how does the citizens' suit provisions affect the standing inquiry?

Mr. Kneedler: In the first place, we think the citizen suit provision is inapplicable in this case because that refers to situations generally where persons alleged to be in violation of the act.

The Secretary's interpretive regulation, which he wasn't even required to issue in the first place, in our view, does not fall within the citizens' suit provision.

The provision that addresses the Secretary's enforcement responsibilities, which is what respondents seem to be directing their suit to, does not govern this sort of regulation.

It governs a specific category of regulations under section 4 of the act.

So in the first place, we think the citizens' suit provision is inapplicable here.

But moreover, the citizens' suit provision, as this Court has made clear in Sea Clammers and other cases, cannot extend the standing... the jurisdiction, case or controversy requirement... jurisdiction under the case or controversy requirement beyond that specified in this Court's cases.

So the--

Unknown Speaker: Well, I guess it could, though, provide that abridgement of the right that Congress has given would constitute injury.

Mr. Kneedler: --Well, what would be... to be sure, if the statute defines a statutory right and then says that a person may sue for a violation--

Unknown Speaker: Yes.

Mr. Kneedler: --of that right, then standing would result because Congress has defined the right.

But this... the citizens' suit provision does not define any substantive rights.

Just as this Court said in Valley Forge, the APA provision, giving any person aggrieved a right to sue, does not define substantive rights, it simply creates a cause of action.

So respondents would be required to look elsewhere in the Endangered Species Act for any substantive rights that they would seek to invoke in this case.

At one point, respondents were arguing that they had certain procedural rights to have one agency consult with another regarding projects in foreign countries.

As we pointed out in our petition and brief, that holding by the Eighth Circuit to that effect was inconsistent with every other court of appeals that has considered it.

And respondents do not, as we understand it, defend it here, because procedural rights can only be invoked by persons who have a substantive stake in the agency's decision.

So unless respondents can show that some of their members had an actual stake in a foreign project and were injured there, the fact that there might be procedural provisions under the act would not be sufficient to give them standing.

So to come back to your question, and argue this case does not arise under the citizens' suit provision.

It's essentially an APA challenge to a regulation.

And as such, as a... if the A... regulation is the agency action, this Court has made clear, just two terms ago in the National Wildlife Federation case, that unless a statute specifically provides for a... challenge to a regulation as soon as it's issued, ordinarily a person has to wait until the regulation has been applied to his particular case.

Unknown Speaker: Well, I understood the respondents to argue that section 7(a)(2) provides that each Federal agency shall consult with the Secretary when action or funding is likely to jeopardize the continuation of an endangered species.

Mr. Kneedler: That's correct.

Unknown Speaker: And they think that is the substantive right that they're seeking to enforce under the citizens' suit provision.

Mr. Kneedler: Well, if an agency that was otherwise required to do so did not consult or took action that would jeopardize a species, that would be a violation of the act.

But again, respondents have not sued an action agency, seeking prevent what they claim would be a violation of the act by that agency... the engaging in a project in a foreign country without the necessary consultation.

They've sued the Secretary of the Interior, who has simply issued an interpretive regulation stating what he believes to be the content of the section 7(a)(2) requirement.

But the... but the Secretary of the Interior cannot require another agency to consult with the Secretary about a project.

So whatever may be the case in a dispute about a particular project, which, again, we don't have here--

Unknown Speaker: We did.

Do you think that the citizens' suit provision would enable a citizen to sue because the... a Federal agency had failed to consult?

Mr. Kneedler: --It would confer a right of action.

But again, the article III standing requirements would have to be met.

And as this Court has made clear, there are three essential standing requirements that, even under a citizens' suit, a plaintiff has to meet.

First, the plaintiff must show that he has suffered some actual or threatened injury; second, he must show that that injury is fairly traceable to the challenged action; and third, he must show that that injury... there's a likelihood that that injury will be redressed by a decision in his favor.

And we've shown in our brief that respondents here satisfy none of those requirements with respect to any of their members in foreign countries.

Respondents, in their brief, focus on two of Defenders' members in an effort to establish standing... excuse me, focus on five.

The court of appeals found standing only on the basis of two.

It rejected the third, Mr. Plowden, on the ground that he hadn't even gotten within 200 miles of the project in question.

And any nexus that the remaining two might have had to a project was so insubstantial that the court of appeals didn't even address it.

So this case... respondent's standing would depend entirely on the ability to establish that two members that the court of appeals focused on had standing in their own right.

And those two members fail each step.

These two are Joyce Kelly and Amy Skilbred.

Joyce Kelly's entire basis for standing is one paragraph in an affidavit that appears at one... page 101 of the joint appendix.

In that... in her affidavit, Joyce Kelly makes no allegation that on her visit to the Nile River in 1986 she was harmed at all in her viewing of any endangered species.

All she says was that I will suffer harm.

And with respect to future injuries, she says I will suffer harm as a result of U.S. Bureau of Reclamation assistance in rehabilitating the Aswan Dam Hydroelectric Power... Power Plant.

There's no indication in her affidavit, or in the Bureau of Reclamation report which she references, that that rehabilitation would have any effect, whatever, on an endangered species, and specifically, the Nile crocodile.

Moreover, Joyce Kelly has not shown that she actually has firm plans to return to Egypt.

All she says is that I have observed the traditional habitat of the Nile crocodile, and I intend to do so again.

I plan to return to Egypt.

Unknown Speaker: Does she say when she observed--

Mr. Kneedler: She did not say when she intended to return to Egypt.

It's--

Unknown Speaker: --Did she say when in the past she had observed it?

Mr. Kneedler: --She said that she had travelled to Egypt in 1986.

Now... so she hasn't shown either actual injury in the past... she didn't claim it... or future injury.

Because, as this Court has said, with respect to threatened injury, the threat has to be real and immediate.

The injury has to be certainly impending... which suggests that any injury has to be immediately forthcoming.

The sort of vague, unspecific allegation or assertion that Joyce Kelly makes here, that she intends to return sometime in the future, falls far short of that necessary to establish a concrete threat of future injury.

Unknown Speaker: What would... could she possibly satisfy?

What if she'd actually seen some crocodiles, and she said they're going to be building the dam until 1991 and she plans to go back in 1990, or something.

Would that have been enough?

Mr. Kneedler: Well, first of all, the mere fact that she visited in the past is not, alone, enough, as this court said in Lyons.

If this was a damage action, a past... past injury may be relevant.

But for future injunctive relief, the past injury is not sufficient.

But with respect to future injury, we think at a minimum there has to be a definitive and concrete plan.

And picking up on this Court's language that the threatened injury has to be real and immediate, we think that the... that the injury... that the threatened injury--

Unknown Speaker: Well, how could the injury... I mean, the project is going to take several years to complete.

And she couldn't be injured... her theory is that she's injured by the completion of the project, as I understand.

It may kill off the crocodiles.

And if she's seen crocodiles the last time, she says sometime a couple of years from now, she wants to go back and take pictures of them and make studies, that wouldn't be enough?

Mr. Kneedler: --Well, there are two aspects of the injury problem.

One is the threat that the agency's project might have an effect on species.

But there's the further requirement that she, personally, suffer injury.

And if she doesn't plan to visit the project for 5 years--

Unknown Speaker: Well, let's get one thing I'm troubled by.

Supposing the injury is she won't be able to see any more crocodiles.

She likes to look at crocodiles or make studies of them.

Is that an injury that's cognizable?

Mr. Kneedler: --It is the sort of injury, yes, that would be cognizable under the act.

Unknown Speaker: Well, then why does she have to say any more than she thinks there's a danger that if you don't consult and you don't avoid the environmental hazard and so on and so forth, the crocodiles may become extinct, and I can't see any more crocodiles?

Mr. Kneedler: She would have to show both that and the--

Unknown Speaker: She'd have to prove that there would be the adverse consequence.

I thought the statute was designed to avoid... you know, minimize the danger that that would happen.

Mr. Kneedler: --Well, she would have to show, at least, that there was a likelihood of some... of some adverse impact.

That's the standard that triggers the consultation requirement in the first place.

So if she's relying just on injury to the species, rather than her use of the land, which she's not alleging here... just injury to the species, she would have to show some injury to the species.

But beyond that, she would also have to show--

Unknown Speaker: She's kind of asked to do her own environmental impact study.

Mr. Kneedler: --Well, but she is the one who's claiming the injury.

The burden is on her.

Unknown Speaker: Well, I think she... relying on risk of injury unless adequate is made first to determine whether or not those injuries would occur.

That's not enough, in your view.

She has to... she has the affirmative burden of establishing injury as a result of the project.

Mr. Kneedler: At least a likelihood of injury, we submit.

And again, the... under this Court's standing doctrine, the Court has reiterated just last term, the Court presumes it doesn't have jurisdiction unless it affirmatively appears in the record, and it's up to the person invoking the jurisdiction of the Court to show the injury.

So in this case, she has to show some injury.

And a risk to animals does not translate into injury to a human being.

Unknown Speaker: Wouldn't she also have to at least suggest how the Bureau's... Bureau of Reclamation's involvement in this dam might hurt the crocodile?

Mr. Kneedler: Yes, she would.

She would have to show that if she was challenging the project itself... again, she's challenging a regulation, which is even one more step removed.

But assuming she was challenging the regulation... I mean the project... she would have to show that the injury is fairly traceable to the Bureau of Reclamation's assistance, and would be likely to be cured by either a withdrawal of the assistance or consultation, or at least by the withdrawal of the assistance.

And that she can't show, both because the Bureau of Reclamation is an independent actor.

But beyond that, we have here foreign sovereigns who have it within their own power, as respondents concede, to go forward or not to go forward, to seek funding from other sources.

So... but going back to the--

Unknown Speaker: She is not challenging the repair of the Aswan... the specific project.

She is just challenging a regular... an interpretive regulation issued by the Secretary of the Interior.

Mr. Kneedler: --That... that's correct.

And the same thing is true with Amy Skilbred, with respect to the Mahaweli project.

She hasn't brought this suit to try to enjoin the... U.S. AID from furnishing assistance to the Mahaweli project.

She's brought this suit to challenge an interpretive regulation... or the respondent organizations have.

And they have used these two projects as being illustrative of the sort of projects that the U.S. may engage in overseas.

But the fact that the respondents have challenged the Secretary's regulation, and the court entertained the suit in that context, really converts the court of appeals' disagreement with the Secretary's interpretation into nothing more than an advisory opinion.

Because these respondents do not--

Unknown Speaker: Would it be part of... would it be part of her burden to also prove that the foreign government could no get financing elsewhere?

Because I guess it's always... there's always a possibility that the government could build its own dams and all the rest of it without American money.

Mr. Kneedler: --Well, the--

Unknown Speaker: Would that be part of her burden?

Mr. Kneedler: --Yes, it would.

And in fact, when it comes to the actions of a foreign country, we think that as a matter of law, she could not show that, for reasons derived from this Court's act of state and political question doctrines.

A U.S. court should not presume to decide and receive evidence on the question of whether a foreign sovereign is likely or not likely to undertake a project on its own soil with... seeking other foreign assistance.

But beyond that, under this... under this Court's decisions in Allen v. Wright and Simon v. Eastern Kentucky Welfare, even in a wholly domestic context, the Court has made clear that, at the very least, the plaintiff bears the burden of showing that the actions of a third party are so likely to happen that the injury will be redressed by the relief.

And respondents have fallen wholly short in this case of showing that.

In fact, this is a particularly improbable case for making such a showing.

The Mahaweli project... the U.S. Government has furnished less than 10 percent of the overall assistance to that project.

Unknown Speaker: Where is the Mahaweli project?

Mr. Kneedler: I'm sorry.

It's in Sri Lanka on the Mahaweli River in Sri Lanka.

So... and again, Amy Skilbred did not allege that she suffered any injury with... on her visit to Sri Lanka and her ability to view wildlife back in 1981.

And she also said in her deposition, at pages 65 to 67, that she had no concrete plans to return.

She said she hoped to return some day, but she had no concrete plans.

Again, the requirement of a threatened injury... going back to Justice Stevens' question... is not just the threat that the agency's action will have some impact on species, but also that she, personally, will suffer the injury which, at the very least, requires a showing that the visit to the foreign project is imminent, and therefore that the injury is imminent.

Should the Court disagree with our position that the respondent organizations do not have standing in this case, it would then be necessary to reach the merits of the scope, geographic scope, of section 7(a)(2).

In our... in our view, the court of appeals seriously erred in its resolution of the merits, as well.

This Court reiterated--

Unknown Speaker: Mr. Kneedler, is there any other way we might, one day, reach that question?

Mr. Kneedler: --It's possible that that could arise, if... for example, if there was a project undertaken directly by the foreign government... I mean, excuse me... by the U.S. agency, not a foreign government, which is not the case here.

For example, a U.S. constructed project in a foreign country, and a plaintiff showed the requisite personal injury, actual injury.

Then, just as in the Teleco Dam case in a domestic project, we think it's possible that a plaintiff would have standing.

So this... our position here does not rule out that possibility.

But in a situation such as this, where the project is undertaken by the foreign government, only with the financial assistance of the U.S. Government, we think that the elements of causation and redressability are far too attenuated.

But on the merits, the Court reiterated just last term in the ARAMCO case, that it's an established principle of American law that acts of Congress are presumed not to apply in foreign countries, absent an affirmative intention of Congress to the contrary that has been clearly expressed.

Unknown Speaker: Mr. Kneedler, if in place of Sri Lanka and Egypt this were Antarctica, what would be your position?

Mr. Kneedler: The same position.

It's outside... it's outside the territorial jurisdiction of the United States.

Unknown Speaker: But no foreign country?

Mr. Kneedler: But no foreign country.

Now, we had taken the position that the consultation requirement applies on the high seas.

I... let me correct that.

I'm not sure that we've taken a position on whether it would apply in Antarctica.

I know I've taken the position that NEPA does not apply there, so I would assume that we would take the same position here.

But I'm not certain.

Unknown Speaker: Well, you have taken the position it applies on the high seas?

Mr. Kneedler: Yes, we have.

Unknown Speaker: And yet there's no clear statement to that effect in the statute--

Mr. Kneedler: There's not... and of course, that's not in issue here.

But we think that some support for that can be obtained from what is the closely parallel provision of the act that governs the taking of endangered species.

The section 9(a)(1) of the act prohibits the taking of protected species by a person subject to the jurisdiction of the United States, either when it's in the territory of the United States, or on the high seas.

But conspicuously absent, missing from the statute, is any prohibition against the taking of a species in a foreign country, presumably because the regulation of the taking of species in a foreign country would be something that would be subject to the laws of that country, which was something that the CITES, the Convention on International Trade in Endangered Species, makes clear, that the trade--

Unknown Speaker: --But presumably, there's no law in Antarctica, anyway.

Mr. Kneedler: --Well, in Antarctica, but in terms of the general proposition, in foreign countries there would be such law.

And on the high seas, there's no governing law, and therefore no direct conflict with the controlling law of another sovereign.

Unknown Speaker: Well, Mr. Kneedler, the 1978 amendments presume that some agency action will be taken... will take place outside of any State, and outside of any circuit.

Mr. Kneedler: That's correct, in the judicial review provisions--

Unknown Speaker: Yes.

Mr. Kneedler: --and the consultation provisions.

But that falls far short of suggesting that it covers actions in foreign countries.

Again, this ties into the position that it could apply in territories--

Unknown Speaker: Well, it certainly isn't clear that it's limited to the Outer Continental Shelf.

I think that's kind of an odd interpretation.

It must mean something.

Mr. Kneedler: --Well--

Unknown Speaker: Didn't the Secretary take the position for some years that it did apply overseas?

Mr. Kneedler: --The Secretary... the Secretary initially took the position in 1978 regulations that it did.

But that position was greatly objected to by the State Department, Defense Department, and others.

The Solicitor of the Interior promptly ordered a reconsideration of that in 1979.

And that official position of the Interior Department was reversed in 1981.

And then in nine... in these 1986 regulations, that new position was stated.

Now, under Chevron, that agency position is entitled to considerable deference.

And it is not... it does not fatally undermine that position that the Secretary changed positions.

He had good reasons for doing so.

One thing--

Unknown Speaker: Weren't they due to a change in the administration, in your view?

Mr. Kneedler: --No, what... the opinion itself states that the precipitating factor or the basis in the statutory text was the 1978 amendments to the Endangered Species Act, which simply reconfirmed the domestic focus of section 7.

Section 7 as originally passed referred only to affected States.

In 1978, Congress adopted an elaborate exemption provision to allow for projects to go forward, notwithstanding the strict, substantive standard in section 7.

And those elaborate exemption provisions, themselves, have a domestic focus, by providing for a representative of an affected State on the Endangered Species Committee, by providing for notification to the Governor of the affected State, but not the foreign countries.

But again, going back to Justice O'Connor's question, the reference to the State, if any, in which the action occurs, is certainly far less compelling, frankly, than the alien exemption under title VII in last term's ARAMCO case.

And yet the Court found that to be... to be insufficient to overcome the presumption that the act does not apply.

Again, the burden is on the respondents in this case to show that Congress affirmatively intended the act to apply overseas.

They've pointed to nothing in the text of section 7 or 7(a)(2), nothing in the legislative history of section 7(a)(2), and nothing in the background of the conventions that the Endangered Act was designed to implement, to support the contention that Congress specifically intended section 7(a)(2) to apply overseas.

That, in our view, is the end of the matter, as it was in ARAMCO because an affirmative indication is required.

But even--

Unknown Speaker: They do have the argument, don't they, that the interpretation that it applied abroad had issued before the... statute was amended and was amended without... without comment on that?

So it's an argument that they assumed that it applied overseas.

Mr. Kneedler: --But there's no indication that Congress was aware of that interpretation.

And again, given the presumption, it has to be Congress, itself, that affirmatively chooses to extend--

Unknown Speaker: Is there a presumption that Congress would be aware of regulations implementing an earlier statute?

Mr. Kneedler: --Well, this Court has, on occasion, looked to that fact.

But particularly in this context, where there's no affirmative indication, at all, that Congress was aware of it, much less that it wanted to--

Unknown Speaker: No, I know there's no affirm... I'm just asking if there's a presumption that Congress knows what the law is.

Mr. Kneedler: --I don't know that it's a presumption in the sense that it's a legal presumption that operates here.

There is an assumption, I guess, in certain situations.

But I think that that... that that background is simply not involved here.

The respondents rely on a passage in the conference report on the 1978 amendments, for example, that refer to the conferees' decision to retain language in the Senate bill.

Well, what the Senate bill was proposing to delete, that the conference report language refers to, was the whole reference to consultation between agencies and the Secretaries.

Well, that's... that... that perhaps inadvertent deletion of the whole consultation process is something quite different from suggesting that Congress intended to apply this specific provision of the act overseas.

Again, the reference in section 7(a)(2) of the act, itself, to affected States, gives that section... gives that sentence a domestic focus.

And respondents here, are trying to make the improbably argument that Congress, in another portion of the very same sentence intended the agency's obligations to have a vastly different geographic reach, since the critical habitat portion of that sentence concededly does not apply in foreign countries.

Yet, they're arguing that the protection for the species, themselves, the species that would use that habitat, does apply in foreign countries.

It's also important to point out the practical difficulties and serious interference with foreign relations that would result from applying section 7(a)(2) in this setting.

And those are concerns that were discussed recently in the dissenting opinion in ARAMCO last term... which even though disagreed with a particular presumption in that case, acknowledged that where an act would interfere with the conduct of the Nation's foreign relations and diplomacy, the act should not be presumed to apply.

And that is directly true here.

Because a rigid... an application of section 7's rigid, substantive standard, and elaborate domestically focused procedural provisions to projects in foreign countries, would interfere with the flexibility and responsiveness of American foreign policy.

After all, foreign aid is... does not stand in isolation.

It's part of a broader diplomatic initiative.

And the application of 7(a)(2) would interfere with those initiatives.

I'd like to reserve the balance of my time.

Unknown Speaker: Very well, Mr. Kneedler.

Mr. O'Neill, we'll hear from you now.

Argument of Brian B. O'Neill

Mr. O'Neill: Mr. Chief Justice, and may it please the Court:

I'd like to start with Amy Skilbred and the Mahaweli project.

Ms. Skilbred is a Defenders' member, and a professional wildlife biologist who visited Sri Lanka in 1981 and 1982, and visited the Mahaweli project site.

She was deposed, and at her deposition she testified that she confirmed her visit to the project site by looking at the AID project documents.

So Ms. Skilbred went to the site, and she went to the site for the purpose of studying endangered species and their habitat.

Concededly, she didn't see any endangered species at the site, but that's why she was there.

To require her to actually find the endangered species is sort of a catch-22 because if they were easy to find, they wouldn't be endangered.

Ms. Skilbred wants to return.

And in her deposition she stated that the reason that she could not return, or could not have present plans to return to the Mahaweli project was because there was an ongoing civil war.

So to say that she doesn't have an intent to return is to misstate the record.

She does intend to return.

She couldn't return at the time of her deposition because of the civil war.

Unknown Speaker: Did she say anything more specific about her plan to return than that, other than that she planned to... as I understand it from the Solicitor General, she said she did not have any definite plan to return.

Did she say anything more?

Mr. O'Neill: She said, specifically, I can't return now because of the civil war.

And in answer to the question, and for what purpose would you like to go back to Sri Lanka to visit the Mahaweli project, she answered, I'd rather go back to visit the wildlife that live in the area of the Mahaweli project.

She did not have a plane ticket.

Unknown Speaker: Well, she not only didn't have a plan ticket, she didn't have any plan, it sounds from that.

Mr. O'Neill: One of the deponents, Steven Schroer had a plane ticket, and had a passport.

Unknown Speaker: Well, did the Eighth Circuit grant him... grant your organization standing on his behalf?

Mr. O'Neill: No, sir, they did not.

Unknown Speaker: Did you cross-appeal?

Mr. O'Neill: No, we did not.

Unknown Speaker: Then I don't think he can be involved in this case.

Mr. O'Neill: I'd respectfully offer the following proposition: the Eighth Circuit sustained the organization's standing.

We won below, and any grounds that can be used to sustain the verdict below, ought to be used by this Court.

Unknown Speaker: So you say that you can invoke different persons who may have been deposed, since what we're talking about is organizational standing.

And the Eighth Circuit sustained your organization's standing?

Mr. O'Neill: That's our position, Your Honor.

We can invoke any individual, so long as there was an adequate record before the district court.

And Mr. Schroer's deposition, like Ms. Skilbred's deposition, was lodged with the district court.

With regard to the Mahaweli project--

Unknown Speaker: If you want to speak about Mr.... the gentleman you just spoke--

Mr. O'Neill: --Schroer was to visit a World Bank project, I believe in Thailand, and had a ticket to Thailand, and had a passport at the time of his deposition.

Unknown Speaker: --Well, but the World Bank isn't a United States agency.

Mr. O'Neill: No, but the Treasury Department funds the World Bank.

The Treasury... and the statute, section 7, deals with any agency action that authorized funds or carries out a project.

Unknown Speaker: Well, this sounds very much like the house that Jack built.

[Laughter]

We're talking about an Interior Department, Interior... interpretive regulation.

And you're telling us that the World Bank was going to fund a project in Thailand.

I mean, there just seems to be a great deal of distance between the two.

Mr. O'Neill: We disagree that it is an interpretive regulation.

And, indeed, when the Interior Department published the regulation, in the preamble to the regulation in the Federal Register, the Interior Department took the position that the regulation was binding on other Federal agencies.

Unknown Speaker: Does it still take that position?

Mr. O'Neill: It doesn't before this Court.

But there's nothing published in any new preamble, or in any new regulations.

But the position that they took in the preamble to the '86 regulation, and it's... and the proposed rule, was that it was a regulation that was binding on all of the Federal agencies, in response to the specific suggestion by other agencies that the Interior Department ought to make these nonbinding guidelines.

Unknown Speaker: How could the Interior Department bind other agencies in this regard?

I mean, I think the Interior Department can say, you know, whether it will consult or not.

But I don't see how the Interior Department can bind them not to do the funding.

Mr. O'Neill: The Interior Department is given authority in both sections 4 and 7 of the regulations to publish rules implementing the statute.

And the position that the Interior Department took in the preamble to its 1986 regulations and the proposed regulations, was that that's specifically what it was doing.

It was implementing the statute, and it was given that authority by the Congress.

That's the Department's position.

Unknown Speaker: If the Interior Department had not issued these regulations, one of the points made by the Government is there's... there's nothing to show that the agencies, themselves, would not have adopted the position taken in the regulation.

Mr. O'Neill: That's--

Unknown Speaker: In which case they would not consult, in which case you'd have the same result you have here.

Mr. O'Neill: --That's a correct statement.

Unknown Speaker: Well, if that's a correct statement, then you haven't met one of the conditions for standing, is... which is that the injury you complain about would not occur if the relief you were given is accorded.

Mr. O'Neill: What--

Unknown Speaker: What you've just said is that whether the... whether the Secretary has this regulation out or not, it may well be that these agencies won't consult.

Mr. O'Neill: --Well, let me address that.

The first answer to that is that the Secretary's position is that the rules are legally binding.

The second answer to that is right now, the Secretary refuses to consult--

Unknown Speaker: Excuse me.

It doesn't matter what the Secretary's position is.

The point is, if the agencies... have that same position, they are not going to consult.

And therefore, just getting the Secretary to change his mind is not going to give you the relief you want.

The agencies may still not consult.

Mr. O'Neill: --It gives... we are not required to address every aspect of our injury.

By getting the Secretary to change the regulation, we, for the first time in a number of years, make consultation available to the agencies.

Right now, the Secretary has published a refusal to consult.

The Secretary is, in essence, a scofflaw, and says I'm not going to result... I'm not going to consult, and has done so formally.

So the regulation is a harm, because the consultation service is not available to the other Federal agencies.

That's a harm.

The second harm is that so long as the consultation service is not available to the other agencies, nobody's going to consult.

And nobody now does consult.

And species are at risk because the one--

Unknown Speaker: But you can attack that when somebody doesn't consult, goes ahead and funds a project.

And then you can attack that agency that funds the project.

But trying to do that indirectly by attacking the Secretary, when you don't know... the agency might go ahead and adopt the same interpretation of the law that the Secretary has adopted.

It's very likely that the agency would.

Even if the... even if the Secretary withdrew this, it seems to me very likely that the other agencies of Government... regardless of his regulation... would continue to adopt the same position.

So this Court would have issued an opinion, spun its wheels, for no benefit whatever.

Mr. O'Neill: --The initial reason that nobody consults today is that the service is not available, because the Secretary, by regulation, refuses to make it available.

Unknown Speaker: Well, we don't know that.

They may not be consulting simply because they agree with the Secretary... since they're in the same Government as the Secretary, I bet you they do.

So even if he... even if he withdrew this regulation, you're going to have the same result.

Mr. O'Neill: Well, then you have a situation where you have the whole Government refusing to comply with the statute--

Unknown Speaker: And you have a means of challenging that.

If and when an agency goes ahead and funds a project without consulting, go get them.

Mr. O'Neill: --I agree that we have that means of challenging the project.

In addition, we are challenging the Secretary's position in a way that such agency decisions has been challenged since Abbott Laboratories.

And we had the same kind of a situation here that the Court had in Abbott Laboratories.

We have a legal construction of a statute.

We have a final regulation, which you didn't have in Lujan v. National Wildlife Federation.

There's nothing else that can be brought to the party to help with regard to the interpretation of the statute.

And there is ongoing harm... that is, the consultation process, which is the remedy that the Congress enacted to solve the problem of extinction, is not in place.

So while we can sue, with regard to a specific project, we've chosen this route.

And this route has been sanctioned in Abbott Laboratores; this route was sanctioned months before we filed this civil action in the Japanese Whaling v. American Cetacean case, which Defenders and HSUS were plaintiffs in.

Unknown Speaker: But Lab says you can challenge a rule, but... in Abbott Labs, by striking down the rule, we would... we eliminated the obstacle that the plaintiffs were complaining about... namely, they thought that they could not issue these pharmaceuticals with these labels, because the Secretary had said if you do, you'll be prosecuted.

Once we struck that down, that obstacle was eliminated.

What I'm suggesting to you is that we can strike down this regulation and we don't know that the obstacle will be eliminated.

The other... crucial to the relief you want is that the agency consult.

And if the agencies have the same view of the law that the Secretary does... and it seems to me quite likely that they do... you're wasting our time.

We can give you everything you ask, and nothing will change.

Mr. O'Neill: I hope I'm not wasting your time.

There is a chance that the agencies will not consult if this Court affirms the Eighth Circuit.

That's a fact.

Unknown Speaker: You're presuming that those agencies would disregard a decision of this Court interpreting that statute?

Mr. O'Neill: I said there was a chance.

I think it's extremely unlikely.

Unknown Speaker: I don't think that's a reasonable presumption, is it, that the agencies would xx to follow our interpretation of the law?

Mr. O'Neill: The Justice... I would assume that, if this Court rules, that's the end of the subject.

The Secretary will issue a regulation, the agencies will comply with the regulation, the Secretary will begin to consult, and endangered species will begin to be protected worldwide like the statute requires.

As to whether there is a possibility on the outskirts of reality that the agencies won't comply, the answer to that is there is a possibility.

But it is extremely unlikely.

I'd like to talk for a minute about the statute.

The statute that's at issue is essentially the fourth iteration of the Endangered Species Act.

There was an iteration issued in '66, an iteration issued in '69.

The iteration in '69 created a listing process.

And under the '69 statutes, species throughout the world were listed.

So that in 1973, Congress was writing against an Endangered Species Act that listed species throughout the world.

The 1973 act, in section 2, the Congress recognizes that the U.S. has pledged itself as a sovereign state in the international community, to conserve various species of wildlife.

Section 4, which deals with the listing of the species, requires that both foreign and domestic species are listed.

And there's no question about that.

And the Secretary lists foreign species.

Section 7(a)(2), which is at issue, and which was written against the backdrop of the 1969 Endangered Species Act which listed species worldwide, says each Federal agency... it doesn't say each Federal agency except the State Department... shall consult with the Secretary to ensure that any agency action... and it doesn't say any agency action in the United States... funded or carried out as not likely to jeopardize the continued existence of any endangered or threatened species.

It doesn't say any endangered or threatened species in the United States.

But again, that section, in '73 when it was passed, was passed against a backdrop of listing of all species, both here and abroad.

When the act was amended in 1978, and that's why I said that there were essentially four versions of the act that we're talking about, the Secretary's position was that section 7 applied worldwide.

Unknown Speaker: May I stop you there, for just a moment?

Mr. O'Neill: Yes, sir.

Unknown Speaker: Is the authority for that the guideline that's in pages 28 to 30 of the joint appendix, where they talked about the general parameters, that section 7 applies to activities and programs by Federal agencies affecting listed species in foreign countries and high seas?

Mr. O'Neill: The guidelines were published before the 1977 and '78 regulations.

Unknown Speaker: But is that the language, basically, you're talking about?

Mr. O'Neill: Yes, sir.

Unknown Speaker: Because... I have this question in reading it.

It's clear that it applies to endangered species in foreign countries and on the high seas, but it isn't clear to me that that applies to projects located out of the United States.

Because you could have projects in the southern part of the State... of the United States that affect species in Mexico or Canada or something like that.

But I'm not... it isn't clear to me that the project had to be located out of the States.

Mr. O'Neill: The '70... the regulations that went into effect in January of 1978 made clear that the protection of the act applied to species outside the United States.

Unknown Speaker: Right, I can see that.

And do they disagree with that?

If there were a project on the Canadian border that would cause acid rain or something like that and affect species across the border, wouldn't they agree there would be consultation there?

Mr. O'Neill: I believe they would.

Unknown Speaker: And why do you... what is it that you say, in the prior guidelines, made it clear that the... that the project outside the United States was governed?

Mr. O'Neill: The regs... the 1978 regulations did make it clear that they were addressing projects outside the United States.

Unknown Speaker: It did.

Mr. O'Neill: And then the conference report, when it changes section 7 in 1978, the conference committee says the conferees felt that the Senate provision, by retaining existing law, was preferable, since regulations governing section 7 are now familiar to most Federal agencies.

So the conferees were aware specifically of the section 7 regulations.

And the section 7 regulations had been published in January of 1978 and had talked about this debate, and said we're going to apply the regulations worldwide.

So one can presume that the conferees knew of the debate when they restructured section 7, and said we're not changing the section 7 law.

And when they changed section 7, and they provided for judicial review, from the consultation process... as Justice O'Connor mentioned, they provided for suit in the District of Columbia when you can't sue in any other circuit.

And section 7 provides for review by the Secretary of State.

It provides for national security review.

The Secretary's reading reads out half of the endangered species that are listed.

So the Secretary, in making this so-called interpretive regulation, isn't tinkering with the edges of the statute.

He isn't interstitially filling in gaps within the statute.

He's taking the language in section 7, which is broadly based... any and all... and he's cutting out half of the endangered species.

With regard to the contention that the citizens' suit provision does not apply, section A of the citizens' suit provision says any person may commence a civil action on his own behalf to enjoin any person, including the U.S. and agencies alleged to be in violation of any provision of this chapter.

The Secretary is in violation of the duty to consult because he has publicly affirmed the fact that he refuses to consult.

The Secretary is in violation of the duty to publish legal regulations.

And in the court below, we alleged that the Secretary had an affirmative duty to ensure that programs can serve endangered species.

His regulation does not meet the obligations of that affirmative duty.

Unknown Speaker: xxx do you think just any person in the... any citizen in the country could bring this suit?

Mr. O'Neill: Yes.

Unknown Speaker: Everyone's got standing?

Mr. O'Neill: Well, that is not our case.

But the statute creates a heritage--

Unknown Speaker: Well, I don't know why.

If it was so clear, I suppose it would be your case.

You wouldn't have to be talking around about going to India or someplace.

Mr. O'Neill: --Well, we had a member who went to Mahaweli at Sri Lanka, and it was... why push the edges of the standing envelope?

Unknown Speaker: Well, you're now doing it.

Mr. O'Neill: I'll move on.

[Laughter]

Moving right along--

Unknown Speaker: Mr. O'Neill, instead of moving on, could you move back just for a second--

Mr. O'Neill: --Yes, sir.

Unknown Speaker: --to your point about the fact that the Secretary's reading of 7 renders irrelevant the listing of foreign species?

Isn't an answer to that that although the Secretary's reading would, of course, not... of section 7 would, of course, render the listing of foreign species irrelevant to 7, the listing would still be relevant under section 8, with the... which provides the obligation of foreign consultation?

Isn't that a way of reconciling the listing of foreign species with the Secretary's reading of 7?

Mr. O'Neill: Section 8 provides for assistance programs to foreign nations.

So the listing doesn't come into play with regard to section 8.

Unknown Speaker: Oh, the listing has no reference to 8?

Mr. O'Neill: No, but it does to 9.

So your argument works with regard to section 9.

Unknown Speaker: I see.

Mr. O'Neill: Section 9 provides a series of prohibitions about taking species outside the U.S., about engaging in international trade outside the U.S.--

My answer to the argument, though, is section 9 shows you that when Congress wanted to limit the scope of the statute to the United States or to the high seas, or to the United States, the high seas, and a foreign country, it did so in the structure of section 9.

In section 7, they use all-encompassing language... any agency action, any endangered species.

So the lesson that I draw from section 9 is different than the one that you proposed.

With regard to the Foley, ARAMCO line of cases, it's our position that they don't apply.

We're dealing with our money, in Washington, D.C., right down the street, and our agencies.

And the agencies are born of Congress.

So it really isn't a question of an extraterritorial application of the statute.

Unknown Speaker: But isn't that... overlook the language

"ensure that any action authorized is not likely to. "

doesn't that impose an obligation on... of some kind of best efforts, at least, to be sure what happens in the foreign country?

Mr. O'Neill: If we're going to spend our money, it does.

Unknown Speaker: Yeah.

So then doesn't that... isn't that a response to your most recent argument?

Mr. O'Neill: It is a response, but if you look at the totality of the action decision being made, it is more of a United States action decision than it is a Sri Lankan action decision.

Unknown Speaker: What if we're only putting up 10 percent of the money?

Mr. O'Neill: The consultation process... and the Congress has found that the interaction that results in the consultation process saves species.

If we're putting up 10 percent of the money, our interaction with the Sri Lankan Government may very well affect those species.

And there is support in the record for that contention, in a couple of places.

A couple of the deponents, including Dr. Elliott McClure, who was an expert in the area, testified that he had seen the consultation process work.

The AID documents, below in the record, indicate the Mahaweli project could harm endangered species, and that the Sri Lankan Government wants our input to avoid that harm.

So the consultation process, at least with regard to the Mahaweli project, is made for the situation.

The other differences between this case and the Foley, ARAMCO line of cases are that this act explicitly was intended to implement treaties.

If you assume that the Foley, ARAMCO line of cases did come into play to begin with, those cases deal with labor and employment.

And you can say, well, those are labor and employment cases, but labor and employment is historically a local concern.

The environment is not a local concern.

And the Congress recognizes it both in the preamble to this statute, and the preamble to numerous other environmental statutes.

And in this case, unlike the Foley, ARAMCO line of cases, we believe the statute is clear on its face.

The mere fact that the Government makes the argument that it isn't, doesn't change the clarity of the statute.

With regard to the general issue of standing, we have a citizens' suit provision.

So this case is different than the Federation v. Lujan case.

We have a final agency action, which everybody admits that is a final agency action.

So this case, unlike the Federation-Lujan case, is... presents the issue clearly and squarely.

Yes, sir.

Unknown Speaker: Come back to what I was asking you, your response to the fact that the Secretary's decision won't make any difference is, well, of course, once we decide that it's unlawful, the other agencies will fall in line.

How is that any different from a case in which I try to challenge a law of Indiana as being unconstitutional?

And, in fact, I don't live in Indiana; I'm not a citizen of Indiana.

This law doesn't apply to me.

But there is a similar law in New York that is applying to me.

Now, would I have standing to challenge the Indiana law because once the Court says that that law is unconstitutional, of course New York will comply with the Court's decree.

Would I really have standing in Indiana--

Mr. O'Neill: The answer to your question is--

Unknown Speaker: --simply because the judgment will pronounce a determination of law that will be obeyed by somebody else?

Mr. O'Neill: --The answer to your question is no, you would not have standing.

Unknown Speaker: Well, why is this any different?

Mr. O'Neill: Thank you.

For a couple of reasons.

The first is, the Secretary takes the position that the regulation is legally binding, and the Secretary has the support for that position in the statute.

The statute delegates to the Secretary a rule-making authority with regard to the Endangered Species Act both in sections 4 and 7 of the Endangered Species Act.

That's the first reason.

The second reason is--

Unknown Speaker: So you'd say that the other agencies are bound to follow the Secretary's determination?

Mr. O'Neill: --That's correct.

And that's the Secretary's position, at least in the preamble to the regulations.

It isn't today, because it isn't convenient today.

Unknown Speaker: Of course, the Secretary could comply, I suppose, by simply withdrawing the regulation and not saying anything.

Mr. O'Neill: That is correct.

But the form of the... because the Secretary has abdicated his responsibility for a number of years and has told the world don't consult, and the consultation process has essentially laid waste for a number of years, it is within the sound discretion of the district court judge to tailor a remedy for that wrong.

And he has done that.

And the nature of the remedy, the district court remedy, which is publish new rules, is not before this Court.

Nobody has argued about it.

In addition, what is... right now, what is the impediment to there being any consultation?

The first roadblock that needs to be removed is the Secretary's refusal to consult.

If we were to go to an action agency and sue them and say you didn't consult with regard to the Mahaweli project in Sri Lanka, they would say we can't consult because the Secretary refuses to consult.

So this is roadblock number one.

And roadblock number one is a final, agency action.

The Secretary has taken the position that it's a mandatory regulation.

And the Secretary has created an additional harm by going out and distributing the line to the other Federal agencies that consultation isn't required.

The consultation process has lied fallow.

And species continue to be extinguished, as the result of the U.S. projects overseas.

That's why I think it's different than New York and... was it Indiana or Illinois?

Unknown Speaker: I think you're right, that those are substantial differences.

Mr. O'Neill: I'm going to see if there are any more in my outline.

[Laughter]

If those are the ones I remember, they've got to be the best ones.

And Larson v. Valente says we don't need to cure every single injury.

With regard to the standing fight, in addition to the fact that there's a citizens' suit, if you look at it from a common sense perspective, what else would another procedural posture bring to this case and the resolution of this issue?

Nothing.

There's the regulation and the statute.

And in this case, the regulation is either in violation of the statute, or it isn't in violation of the statute.

Unknown Speaker: Well, you can say that about a lot of cases, Mr. O'Neill, in which we've said there was no standing.

It's a perfectly good record.

A plaintiff with standing might not bring much more to the case, and nonetheless, we've fairly rigorously enforced our standing requirement.

Mr. O'Neill: And in this case, I believe we meet them, because Ms. Skilbred who went to he site, who intends to go back to the site.

The argument... and I say this facetiously... but the argument that the Government makes about what kind of intention you need to go back to the site, in essence requires us to camp out at the site, in order to have standing.

Unknown Speaker: Whereas you say a visit 10 years ago suffices.

Mr. O'Neill: Well, it wasn't a visit 10 years ago when we started the civil action.

The civil action is 5 years old... 5 years.

She uses the resource, professionally, and she intended to go back.

But we have different kinds of use.

Dr. Elliott McClure, for example, studied Asian elephants.

Now, he's never been to the Mahaweli project, but the Mahaweli project is extinguishing Asian elephants from the face of the earth.

There's an animal nexus between Dr. McClure and the elephant.

Unknown Speaker: You mean the Asian elephants might come over here so he could study them here?

Mr. O'Neill: He's studied them in places other than the Mahaweli area of Sri Lanka.

Unknown Speaker: You are pressing the outer envelope of standing.

[Laughter]

Mr. O'Neill: Then I'll go back to Ms. Skilbred, who, by the way is here, and who, in the last 2 days getting ready for this, I've deeply fallen in love with because she went to the Mahaweli project.

But they would require us to camp out at the site.

And in all honesty, we don't believe this Court's decision require us to camp out at the site.

If anybody has any further questions I'd be happy to answer them.

Otherwise, I'll sit down early.

Unknown Speaker: Thank you, Mr. O'Neill.

Mr. O'Neill: Thank you, Judge.

Unknown Speaker: Mr. Kneedler, you have 3 minutes remaining.

Rebuttal of Edwin S. Kneedler

Mr. Kneedler: Thank you, Mr. Chief Justice.

I have several points.

First on the question of standing, the Secretary of the Interior did not take the position in 1986, just as we do not take the position today, that the interpretive regulation is binding on other agencies.

I refer the Court to page 6 of our brief, in which we say that the preamble to the 1986 regulation stated that the Fish and Wildlife Service performs only, quote,

"an advisory function under section 7. "

close quote, and that the action agency makes the ultimate decision as to whether its proposed actions will comply with the act.

Unknown Speaker: Yeah, but that doesn't... it doesn't reach the question of whether there's... they're bound to consult.

Mr. Kneedler: Well, but the... this is an interpretive regulation.

The Secretary of the Interior, and respondents' own witnesses in this case, as we showed in our brief, agreed with us.

The Secretary cannot make another agency consult.

Unknown Speaker: Your colleague on the other side said that at one time, the Secretary took the position that the agency is bound to consult, if he has a regulation that they have to consult.

You haven't answered that yet.

Mr. Kneedler: No, the best evidence that they did not is the fact that respondents have not pointed to, and we are not aware of a single instance in which an... in which an agency--

Unknown Speaker: So you did say that... you did say the Secretary has never taken that position.

Mr. Kneedler: --Has never taken the position--

Unknown Speaker: Well, that's with respect to foreign projects.

But there is an obligation to consult with regard to--

Mr. Kneedler: --There's an obligation to consult.

And again, what--

Unknown Speaker: --But isn't that equal... I mean, it just depends on the scope of the obligation.

Why is one any more mandatory than the other?

It's a question of whether--

Mr. Kneedler: --The statutory duty is mandatory.

The question is whether the Secretary's interpretation of what the statute means--

Unknown Speaker: --But if the statute clearly applied to foreign projects, then there would be a mandatory duty to consult.

Mr. Kneedler: --Right, but that's not... that's different from saying the Secretary's interpretive regulation is binding on the agency.

Whatever binds the agency is the statute, itself, not what the Secretary says about it.

Unknown Speaker: But would the... would this Secretary's interpretation of the statute be entitled to deference from other agencies?

Mr. Kneedler: Yes, it would be entitled to deference the same way as any others.

But from 1978 to 1986, while the prior regulation was in effect, agencies did not consult with the Fish and Wildlife Service.

Unknown Speaker: Do you agree with his reading that that regulation clearly applied to foreign projects, as well as species in foreign countries?

Mr. Kneedler: Yes.

Unknown Speaker: You do.

Mr. Kneedler: 1978.

With respect to the fact that this Court might affirm the judgment, the standing question, with all respect, has to be looked at at the time the plaintiffs filed the action in district court.

The question is whether a single, district court decision construing the act would be followed by other agencies.

And there's no indication... no reason to believe that it would be.

On the merits, with respect to the listing requirement, Justice Souter, section 8 does specifically refer to endangered or threatened species with respect to the President's furnishing of foreign assistance.

So the listing of foreign species is tied in both with respect to section 8 and section 9.

Finally, with respect to the presumption, respondents say it only applies for local activities such as employment.

But we say that there is... in our view, nothing could be more local than the construction of a project on foreign soil by a foreign government in matters that affect that foreign country's own resources.

There's no reason to believe that section 7 applies there.

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

The case is submitted.

Attribution:

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Featured:

Public Citizen v. Department Of Justice - Oral Argument

Fri, 09 Jan 2009 14:49:14 +0000

Case:

Public Citizen v. Department Of Justice

Media File:

88-429_19890417-argument.mp3

Related Transcript:

1988_88_429_argument.xml

Transcript:

ORAL ARGUMENT OF PAUL D. KAMENAR ON BEHALF OF THE APPELLANT, WASHINGTON LEGAL FOUNDATION

Chief Justice Rehnquist: We'll hear argument next in No. 88-429, Public Citizen v. United States Department of Justice; No. 88-494, Washington Legal Foundation v. United States Department of Justice.

Mr. Kamenar?

Mr. Kamenar: Thank you, Mr. Chief Justice, and may it please the Court:

The issue before the Court in this case is whether American Bar Association Standing Committee on the Federal Judiciary constitutes an advisory committee under the Federal Advisory Committee Act in the way it is utilized by the Department of Justice in obtaining the ABA's advice and recommendations on the qualification of Federal judicial candidates.

And if so, whether applying that statute to the ABA Committee would violate the President's power under Article II to nominate Federal judges, and thereby violate the separation of powers.

The lower court ruled, correctly in our view, that the ABA Committee is indeed an advisory committee under the statute, but how that applying that statute to the ABA Committee would violate the President's power under Article II.

It's our position that the District Court incorrectly struck down an entire statute of Congress without giving the government an opportunity to apply any of its various provisions.

I would like to begin my argument by briefly describing for the Court how the ABA Committee operates, and describing its institutional relationship with the Department of Justice.

Since 1952 the Department of Justice has consistently utilized the ABA Committee as a preferred, if not exclusive, source of advice on the qualifications of Federal Judicial candidates to the Courts of Appeal and the District Courts.

Unidentified Justice: How do you know that?

Mr. Kamenar: Your Honor, we know that from information provided by the ABA and the Department of Justice.

Unidentified Justice: Where did you... where did you get the notion, though, that... that it is exclusive?

You say, perhaps, exclusive source of information.

Mr. Kamenar: Your Honor, I believe if we look at the--

Unidentified Justice: Did the Department of Justice ever concede that?

Mr. Kamenar: --I think, Your Honor, in terms of the qualifications of individuals nominees, the Department of Justice has stated that... in my statement of material facts, I'm looking at joint appendix on page 56.

We stated,

"The Department of Justice does not ask any outside committees, other than the ABA committee, for advice on the suitability and qualifications of possible nominees for Federal judgeships."

Unidentified Justice: That's a... that's a... that's a far cry from saying it's the only source of information.

Just because that's the only committee they employ.

There's a lot of other ways of getting information besides calling on the Committee.

Mr. Kamenar: That's correct, Your Honor, but the Department of Justice did admit that the ABA Committee is relied upon in terms of providing it with advice on the qualifications of the nominees.

Unidentified Justice: Of course they do... of course.

Of course, of course.

But you see, certainly, you shouldn't say that... suggest that it's the exclusive source of information about candidates.

Mr. Kamenar: If I did, Your Honor, I misspoke, and I apologize.

Unidentified Justice: Well, that's what you said.

Mr. Kamenar: I apologize to the Court for misspeaking on that.

Once a candidate has been identified by the Department of Justice as a serious candidate, that person is required to fill out a personal data questionnaire, which is designed by the ABA Committee.

That questionnaire is then given to the ABA circuit member, as well as the ABA Committee chairman.

No other outside group gets that information.

Unidentified Justice: How long has that been--

--Has that always been in effect?

Mr. Kamenar: As far as we can tell, Your Honor, that's what the record shows; that that personal data questionnaire--

Unidentified Justice: You know, we've all been... we've all been through this wringer.

Mr. Kamenar: --Well, I'm sure, Your Honors, you have, although it has been episodic with respect to some Supreme Court nominees.

It's consistent with respect to Courts of Appeals and District Court nominees, and it's episodic with respect to--

Unidentified Justice: Well, some of us have been on the Court of Appeals also.

Mr. Kamenar: --That's right, Your Honor, you have--

Unidentified Justice: And I never made out such a form.

And it's not been true since 1952, I can assure you.

Mr. Kamenar: --Well, Your Honor, I didn't mean to say that that form has been filled out since 1952, I'm talking about what the current practice is for the last... this last... the last several Administrations, and what was--

Unidentified Justice: Well, how... how long a practice are we talking about?

Mr. Kamenar: --Your Honor, I do not know that, unfortunately.

I think the Department of Justice could best ask that.

Again, this Committee operates in secret, and that's what's part of the problem here.

Unidentified Justice: Well, it was done when I was appointed.

I filled out a form, both in 1971 and 1986, I think.

Mr. Kamenar: Well, again, Your Honor, this probably illustrates what kind of confusion we have here.

Perhaps if we applied this Federal Advisory Committee Act, we can find out exactly how this Committee is operating, and see whether they apply it sometimes, and they don't apply it in others.

And that precisely gets to the point I'm trying to make here.

Unidentified Justice: Well, if... but it may be just a matter of the written form having been introduced at a particular point, and the members of this Court obviously came to... came to the bench at different times.

Mr. Kamenar: That's correct, Your Honor.

The ABA Committee member then interviews this candidate, they interview judges and practitioners in the area to get their views on the qualifications of the potential nominee.

When this investigation is completed by the circuit member, he then, or she then makes an initial rating of that candidate; whether he is extremely well qualified, well qualified, qualified, or not qualified.

And the key part of this investigation is the following:

If they decide that this person is not qualified to be a Federal judge, that is... is... is... that information is advised... given to the Department of justice, and almost invariably, the not-qualified rating results in the Department of Justice removing that individual from further consideration to be a judge.

Unidentified Justice: You... you speak in extremes.

Now you say, almost invariably.

Certainly there are cases where persons who have been indicated as unqualified have been confirmed.

Mr. Kamenar: That is the exception, not the rule, Your Honor.

I direct the Court to page 60 of the joint appendix, where the Defendant, the Department of Justice, states,

"The Defendant admits that most candidates for nomination, which have not received a not-qualified rating by the ABA Committee have not been recommended by the Attorney General for nomination to the President."

Unidentified Justice: Well, now you're saying the word most; before you said almost invariably.

I'm just a little concerned about your use of extreme language.

Mr. Kamenar: Yes, Your Honor.

Unidentified Justice: I'm sorry.

Where did you read from on page 60?

Mr. Kamenar: Page 60 of the joint appendix, Your Honor.

Unidentified Justice: But which paragraph?

Mr. Kamenar: It's paragraph 6, about middle of the way down.

Nevertheless, Your Honor, this is important to show that the... the ABA Committee is heavily relied upon by the Department of Justice in making its decisions as to who to recommend to the President to be a Federal judge.

Let me just sum up in this way, in terms of the facts.

The ABA--

Unidentified Justice: Well... go ahead, please.

Go ahead.

Mr. Kamenar: --The--

Unidentified Justice: Well they... they get information from the Committee, but they don't particularly rely on any recommendation of the Committee as to who to send over to the President.

Mr. Kamenar: --I disagree with Your Honor on that, they do rely on that information--

Unidentified Justice: Well, you mean... if the ABA says they're unqualified, they won't be sending that name over.

But there are a lot of people who are... who are passed on as qualified.

And the Department makes up its own mind who to send to the President.

Mr. Kamenar: --If it's qualified or better, the Department does make up its own mind.

It could very well be, even if they did rate a person as qualified, the Department would still not nominate that person to the--

Unidentified Justice: Of course, of course.

Well, then, you shouldn't say that they rely on that heavily, as to whose... what name to send to the President.

Mr. Kamenar: --I don't mean to say that they rely on it exclusively; they do rely on it in the way that advisory committees are usually relied upon for their advice.

If there's any doubt about... I mean, both the Department of Justice and the ABA have even acknowledged that there is a semi-official or quasi-official relationship established here between the Department of Justice and the ABA.

And if there's any doubt about whether or not this ABA Committee is a... an advisory committee and utilized as such, we think the Department of Justice answered it best itself back in 1973 and 1974, when they concluded that,

"under any reasonable construction of utilization, the ABA Committee is utilized by the Department."

And again,

"an honest reading of the statute points in the direction of inclusion."

Unidentified Justice: Mr. Kamenar, do you suppose that a use by a Democratic President of the advice of the Democratic National Committee in making various Executive Branch appointments or the use by a Republican President of the Republican National Committee for getting names and making appointments, is also covered by FACA?

Mr. Kamenar: Your Honor raises a good question there, and that brings to... the answer to that brings into question the... the decision of this Court recently, in the University of San Francisco Democratic Party.

In other words, there may be a special relationship that the President... the incoming President enjoys with his own party, such that it would be excluded from... be considered an advisory committee in that respect.

Although I must admit that, on the face of the statute--

Unidentified Justice: On constitutional grounds... you... you... you... you--

Mr. Kamenar: --On... on constitutional grounds, perhaps.

But we are clearly far apart in this case where they're relying on a private, special group, such as the American Bar Association.

Unidentified Justice: --But what I... I don't understand your answer to Justice O'Connor.

What about her hypothetical?

Why... why isn't that covered?

Mr. Kamenar: It would be... first of all we have to determine--

Unidentified Justice: You said it perhaps a special... what are you talking about, the statute?

Are you talking about a constitutional document?

Mr. Kamenar: --Your Honor, we would first have to determine whether or not there is a committee within the RNC or DNC that advises the President on these particular nominees.

That's the first statutory hurdle we have to get over.

If, in fact, it is, and there... it's a preferred source of advice, then the statute would seem to indicate that if the President relies... that a preferred source of advice on that committee, it would be an advisory committee.

Then we would have to reach, at that point, in a constitutional issue, if, in fact, the government... if it was going... if it was going to be determined that that DNC or RNC committee must come under the strictures of the Act.

But that... we don't have to reach that kind of a question in this case because, what we are talking about is what Congress intended to do in terms of trying to have some public disclosure as to how private interest groups are working in the decision-making process.

I think the American people realize that the President is relying on his own party for advice, in terms of how to make decisions, and perhaps the public interest is not necessarily as well served, need to be served, as opposed to the President or the Executive Branch relying on a wholly private trade group, labor group, or industry group, to tell it how to do its business.

Unidentified Justice: What about the Association of the Bar of the City of New York?

Did you find out that they were having any influence?

Mr. Kamenar: In terms of giving their advice to the Department of Justice, we think that the... the criteria that we've developed, with respect to the preferred source of advice of this committee, how it is utilized by the Department of Justice, would distinguish the ABA from all the hypotheticals, including Your Honor's hypothetical, in terms of whether or not they would come under the Advisory Committee Act or not.

We think that... if you look at the GSA regulations, they look at whether they use a common sense approach--

Unidentified Justice: Well, did you?

Did you look at what influence, if any, that the Association of the Bar of the City of New York had?

Mr. Kamenar: --We didn't investigate the Bar Association of New York, but it's our--

Unidentified Justice: My point is, you put the ABA out there all by itself, and there are several others.

Mr. Kamenar: --Your Honor, the big distinction between the ABA and the Bar Association of New York is that the ABA gets inside information.

The Bar Association of New York does not get the personal data questionnaire, does not get the first crack, if you will, at whether or not that judge is going to be nominated... if that person if going to be nominated as a Federal judge.

And that distinguishes, we believe, all the hypotheticals that the appellees and the amici try to scare this Court into thinking that they would be--

Unidentified Justice: It just... it just happened that often the Association of the Bar of the City of New York interviews and passes upon people before the Justice Department has even moved.

That just so happens.

Mr. Kamenar: --But, Your Honor, I don't think the Justice Department gives them the name ahead of time, and relies on their advice before the Department of Justice moves on that regard.

Unidentified Justice: Just leaked it to the press.

Mr. Kamenar: Well, then... they may be... it depends upon how fast the AB... the Bar Association of New York may come under the statute, but I don't think that the facts... haven't been developed in that particular case as it has in this case, where the Department of Justice has conceded in their earlier memorandum that the ABA is utilized as an advisory committee under the statute.

Unidentified Justice: May I ask, under the terms of the statute, what difference does it make that the name is given in advance, and that they utilize the questionnaire and so forth?

Mr. Kamenar: Your Honor, I think the fact that their names are given in advance, and the questionnaire, and so forth, basically underscores the institutional and advisory relationship that they enjoy with the Department of Justice.

Unidentified Justice: But supposing they didn't give the names in advance, and the ABA did it on its own, but the Department, nevertheless, continued to utilize their recommendations on a regular basis?

Mr. Kamenar: That may be a different situation if, in fact--

Unidentified Justice: But not--

Mr. Kamenar: --the Department of Justice announced that this is the person we're considering to be a Federal judge, and anybody who wants to comment on this person's qualifications, feel free to do so and send it to the Department of Justice.

That would be a different situation.

Unidentified Justice: --Why would it be different under the terms of the statute if they regularly, as a matter of practice, gave special deference to the ABA thinking they--

Mr. Kamenar: Well, Your Honor--

Unidentified Justice: --They would still be utilizing--

Mr. Kamenar: --if you look at the GSA implementing... implementing regulations, it has to show whether it's a preferred source of advice.

If it does develop that they are invariably relying upon the Department of Justice... I mean, the--

Unidentified Justice: --What if the President announces it as a matter of policy, I think these people give... give us very reliable advice and I want you to rely on them regularly.

That would still be the same, whether they got questionnaires or confidential information, wouldn't it?

Mr. Kamenar: --That... that would probably... if they... if they consistently relied on the ABA, that would probably come under the terms of the... of the regulations.

However, we think that it... it... by not having that information public, by using them exclusively, that highlights the importance that the ABA--

Unidentified Justice: Well, now, when you say use them exclusively, but you just earlier agreed they do not use them exclusively, they have lots of sources of information about candidates.

Mr. Kamenar: --Yes, Your Honor.

They use them primarily as a preferred source for the--

Unidentified Justice: Well, that's my hypothetical.

They don't have any secret... they don't have any questionnaires or anything.

They just say, as a matter of policy, we don't think we want to confirm any... or submit any name to the Senate that the local bar association doesn't endorse, or doesn't find qualified.

Wouldn't the local bar association, then, be utilized in exactly the same sense that these people are?

Just as... Justice Marshall's question, really, I guess.

Mr. Kamenar: --Yes.

I think at... at a certain point we would see... see that that kind of relationship would probably come under the terms of the statute, but I think that the Justice Department should make the first opportunity as to whether or not this statute applies in that kind of a situation.

And they haven't.

Your Honor, I would like to reserve the remainder of my time for rebuttal.

Unidentified Justice: Very well, Mr. Kamenar.

We'll recess for lunch.

Mr. Glitzenstein?

ORAL ARGUMENT OF ERIC R. GLITZENSTEIN ON BEHALF OF THE APPELLANT, PUBLIC CITIZEN

Mr. Glitzenstein: Mr. Chief Justice, may it please the Court:

The Advisory Committee Act applies to entities that are structured as committees, that are established or utilized for obtaining advice or recommendations by a Federal agency or by the President.

We think that the structure of the language of the statute itself makes it plain that what Congress was attempting to do with utilized committees, was cover those entitles that are essentially used by the Executive Branch in the same manner as committees that are formally established by the Executive branch.

And, indeed, that is exactly what the General Services Administration's regulations clarify, spell out.

And, indeed, that is what the Executive Branch, ever since the enactment of the Advisory Committee Act, has basically said what a utilized committee means.

And I think it's useful to focus on the GSA regulations because this is the interpretation which all Federal agencies are supposed to comply with.

And under this Court's precedent, it is the interpretation which is entitled at least a substantial deference.

The GS--

Unidentified Justice: How does it... how does it happen that GSA, rather than some other agency, promulgated the regulations here?

Mr. Glitzenstein: --Your Honor, there was an Executive Order, I believe it was issued in 1977 by President Carter, who authorized the General Services Administration to undertake the function of providing guidance.

And, indeed, that is consistent with the statute itself.

I believe it is section 7 of the law, states that an agency should undertake the function of providing government-wide guidance and... in appropriate circumstances, rules that would be followed by the other agencies.

And, indeed, that has been done by the Federal Government ever since FACA was first enacted in 1972.

And interestingly, even before the statute was enacted, the Executive Branch had issued several Executive Orders, which contained very parallel provisions and requirements, and coverage, to what the GSA currently says the coverage of the statute and the various requirements of the law should be.

President--

Unidentified Justice: Now the GSA maintains lists of committees that are covered, is that right?

Mr. Glitzenstein: --Your Honor, what GSA does is essentially take from each of the various agencies those committees which have been chartered in compliance with the law; and it puts all of those committees together in an annual report... we're up to the 17th annual report this year... and submits those to the President.

Then the President, under the Act, is required to take that list and, in turn, provide that to the relevant committees of Congress.

Unidentified Justice: So it doesn't include in the list any committees that are not chartered?

Mr. Glitzenstein: That is correct, Your Honor.

If does not include and of the committees which have not been chartered under the law.

That is GSA's cut-off point for what it will include in the list.

In other words, if an agency is not using a committee in compliance with the statute, it doesn't, therefore, come to GSA and say, we have committee X, Y and Z, which has not been chartered under the law, that will not be included in the list.

Unidentified Justice: And the ABA Committee has, of course, never been on the list?

Mr. Glitzenstein: That is correct, Your Honor.

Unidentified Justice: Does the record tell us how many of those committees receive any kind of government financing for their activities?

Mr. Glitzenstein: Your Honor, the GSA guidelines do not provide for that particular breakdown and, in turn, the President's handbook on the Advisory Committee Act has never spelled out which... which committees take Federal funding and which do not.

It does include both established and utilized committees.

For the Department of Transportation, for example, it submits to the GSA committees that are pre-existing, independent entitles that are simply utilized by the government.

So the Department of the Transportation, which uses a substantial number of advisory committees, would include some that are not committees taking Federal funds.

But I cannot answer precisely how many.

Unidentified Justice: Does the committee have to be utilized over a period of time before it's utilized within the statutory definition?

That is to say, suppose the Attorney General said, the next three judges I am going to appoint in this state I want to consult... then fill in the blank: American Trial Lawyers-Association, NAACP.

Mr. Glitzenstein: Your Honor, I--

Unidentified Justice: And... and I want to use them in the same way I use the ABA.

Mr. Glitzenstein: --Your Honor, I think that the effort on the part of Congress was to apply the statute to those committees that are being used in the same manner as an established committee.

And therefore, it doesn't matter so much whether it's prospective or whether it's something which is on-going.

If the Federal Government, for example, were to establish a committee and say, we are now formally establishing an advisory committee to report on subject X, and from henceforth, it will provide recommendations on a particular subject, say, for example, ethics in government, to take a recent advisory committee that has been in the news, that would clearly be subject to the law.

The question is whether the intent is to use that committee as a preferred source of advice over a period of time, and that can apply, I believe, Your Honor, to a committee which is going to be used prospectively--

Unidentified Justice: So there... so there is a time component?

And if you use the American Trial Lawyers or the NAACP for three appointments, then you're within the statute?

Mr. Glitzenstein: --Your Honor, I think that the test is not so much whether it's a particular period of time, so much as it is a question of whether on a particular subject matter that entity will be used as a preferred source of advice or recommendation.

Unidentified Justice: So if that... so, then it's true even if only there... there is consultation with only... with respect only to one appointment?

Mr. Glitzenstein: And, indeed, Your Honor, there is case law which would support that result.

The National Nutritional Foods Association case involved a one-time meeting; the Edwards case, which we cite, involving a committee set up to provide advice and recommendations which involved a Department of Energy policy was a one-time meeting.

The focus, again, is upon the nature of the committee and how it is being utilized, not so much upon the number of meetings that are being held.

Now I would say that you have a much easier case, as here, where the committee, over a significant period of time, has performed the same or substantially the same function of providing advice or recommendations on a particular subject matter.

And, indeed, that is precisely what the GSA regulation said.

And I think that also may relate to a question that Justice Stevens asked before, about the us of confidential information.

I think that a committee can still be an advisory committee if it doesn't use confidential governmental information.

But if it does use confidential governmental information that the government does not otherwise have to provide to it, and, indeed, does not provide to any other member of the public, then you have very heavy support for the proposition that it is an advisory committee.

And I think that is supported by the Justice Department itself when it first looked at this question in the early 1970s.

And I'm quoting from a February 1974 Office of Legal Counsel memorandum on this subject, which says,

"The major function of the ABA Committee is to provide to this Department advice as to the qualifications of persons being considered for Federal judgeships."

"A semi-official relationship has been established."

"The Committee obtains confidential information from the Department, without which the Committee could not function."

"In effect, the Department solicits the Committee's views; the Committee could not judge the qualifications of prospective nominees without its special relationship with the Department."

And I think the point being made, Justice Stevens, was that where an agency goes to a committee or an entity and says, here is otherwise confidential information.

We would like your views on that subject.

It certainly supports the proposition that the government is intending to use that entity as an advisory committee.

Unidentified Justice: But the statement says it couldn't function without it.

It functioned many years without it, didn't it?

Mr. Glitzenstein: Well, Your Honor, in terms of--

Unidentified Justice: Didn't it?

Didn't it?

Yes or no, didn't it?

Mr. Glitzenstein: --It functioned, but not in this sense.

Unidentified Justice: But it functioned?

Mr. Glitzenstein: It did not function as an advisory committee in the sense that it obtained information from the government and was asked to participate in that process.

Unidentified Justice: I understand that's all in that opinion letter, but what is the statutory foundation for the... this emphasis on confidential information?

Mr. Glitzenstein: Your Honor, I think the statutory emphasis, once again, is the parallel between established committees and utilized committees.

And that's not to say that every established committee is necessarily obtaining confidential information.

But I think the notion was, when the government establishes a very unique relationship with a particular entity and says, we're providing you with this information so that you can advise us, that suggests that you do have strong support for an advisory committee.

I'm not saying, once again, Your Honor, that that is the only criteria that is relevant to--

Unidentified Justice: I don't understand why it's even... even a single criteria.

I mean, I... it may make a difference in the way it functions, but just reading the statute, I don't see why it makes a bit of difference whether the ABA Committee has confidential information or not, as long as they meet and discuss the qualifications of the candidate, come up with a... a not-qualified or qualified recommendation.

Mr. Glitzenstein: --I agree with Your Honor, even if the ABA Committee did not get confidential information, it would fall within the terms of the statute.

The only point I'm trying to make, and I don't want to carry it too far, is that where they go even further than that, that, in our minds, resolves and doubt on this score, and suggests that you clearly have the government admitting that it is seeking this information as... advice... as a preferred source of advice.

Unidentified Justice: But you want us to look at all advisory committees that have been established, and then somehow draw those common characteristics and apply them to private entities.

I haven't reviewed the statute, but I would imagine every private... every advisory committee established by the Congress is different.

And that has simply no footing in this statute.

Mr. Glitzenstein: Your Honor, I think, once again, and this has been spelled out, not only by GSA, but also by OMB when it had this authority in the early '70s, by the Justice Department itself, and even prior to that by Executive Orders which were very similar to the approach taken by GSA, that the question is, is it being used in a manner which is similar to an established committee?

Does it have fixed membership?

Does it have a structure as a committee?

Is it being asked to provide advice or recommendations on particular issues over... at a particular point in time?

And, does it have all those kinds of criteria?

And I think you will have to ask that question with respect to each committee.

If I might turn quickly to the constitutional argument, because I think it is something which is addressed significantly in the briefs.

The most important point I would like to make about it is that this is a law which has been in effect for 17 years now, and which hundreds, indeed, thousands of advisory committees, some which are very similar to the ABA Committee, peer review committees of the National Science Foundation, the National Institutes of Health, have complied with.

It's a statute which builds into it a significant amount of flexibility in application by the Executive Branch.

And perhaps the most important point that I would make on that score involves the exemptions to the open meeting and the open document provisions.

In essence, what the statute says is that where meetings or documents would fall within exemption to the Freedom of Information Act or the Sunshine Act for meetings, that material can be protected.

The Justice Department, in the early 1970s, and I don't think really disputes at this stage of the game, that the exemption in the statute for personal privacy material, which this Court handed down opinion on in the FOIA context just a few weeks ago, would apply to the majority, if not all, of the specific discussions of individual candidates for Federal judgeships.

We would submit that the statute clearly allows the ABA to function in a manner that is consistent with any genuine need for confidentiality.

On the other hand, where there are discussions of matters which do not fall within the exemptions, then presumably those could be open to the public.

To take an example, a general discussion by the Committee as to the role that political ideology may play in its deliberations is something which would not appear to fall within any of the exemptions.

Surely the Justice Department would have the opportunity to argue that it does, but assuming that it doesn't there has not been a single word expressed in any of the briefs that that kind of meeting, a general discussion of role, of function, of criteria, of procedure, would, in fact, need to be protected under the statute.

To take another one of the statute's very basic threshold requirements, that of filing a charter.

That's contained in section 9(c) of the law.

The fundamental purpose of that provision is to have the agency that's using a committee set out the agency's statement as to why it's using the committee.

Now we all know, and the record in this case suggests, that there has been some confusion as to exactly what the ABA Committee's role in the process is.

And, more importantly, what the Justice Department's position on what the role of that process is.

And a charter, which would spell out the Justice Department's statement as to why the Committee is being used, whether, for example, it is supposed to be considering ideology, whether it's supposed to be considering political views, and, if not, whether, indeed, it is supposed to provide an ultimate recommendation for whether someone should be put on the Court.

All that could be spelled out in a charter.

There is no reason, in any of the briefs, why that kind of material should not be made available to the public.

Unidentified Justice: Thank you, Mr. Glitzenstein.

Mr. Shapiro?

ORAL ARGUMENT OF DAVID L. SHAPIRO ON BEHALF OF THE APPELLEES

Mr. Shapiro: Thank you, Mr. Chief Justice, and may it please the Court:

The question in this case is not whether it is a good idea or a bad idea for the President and his Judicial Selection Committee to rely, as Presidents have relied for some 35 years, on the Council of the ABA Committee when it comes to judicial nominations.

The questions, rather, are whether, in enacting the Federal Advisory Committee Act in 1972, Congress intended to intrude, to regulate that relationship, and if it did, whether that intrusion is consistent with the constitutional separation of powers and, in particular, with the President's function to nominate officers of the United States.

The answers to both questions, we submit, is no.

The answer to the first question, that of statutory construction, is no because the long-standing and well known relationship between the Executive and this private group, with respect to the exercise of the nominating power, was wholly outside the scope of Congress' interests and concerns when the enacted the Advisory Committee Act.

And the answer to the second question, the question of constitutionality, is no because if the Act applies to this relationship, the resulting constraint on the President's ability to seek advice from whomever he chooses, and in whatever manner he chooses on this matter would be an unconstitutional invasion of his discretion on a subject on which he is accountable, not to the Congress or to the Judiciary, but solely to the electorate through the political process and to his own conscience.

Unidentified Justice: Mr. Shapiro, does... if we reach the constitutional issue, does that require us to know a little more about how the operation of this law would affect the process?

I'm a little concerned that we're deciding the question, potentially, with very little understanding of how, in fact, it would impact on the operation of the Committee, or the Presidents, or the Department of Justice's use of the Committee.

Mr. Shapiro: Your Honor--

Unidentified Justice: It's a little like a facial challenge when we... we don't know how it would play out.

There was something in the material circulated to us from the early assessment of it by the Department of Justice to the effect that, well, we think the plain language makes it apply to the ABA Committee, but we don't think it'll have any substantial effect.

Now that's the very inquiry we have been making in separation of powers cases around here.

Mr. Shapiro: --Your Honor, the case has the quality of a facial challenge.

Unfortunately, it seems to us, both inappropriate, undesirable, and inconsistent with the statute, to have a trial run to see how, in fact, it operates.

But I do believe that it's essential, especially because this is the first occasion on which this Court has considered the meaning and scope of this statute, even though it's been on the books for some 17 years.

I think it's appropriate, at least, to spell out what we believe the significant and inescapable impacts would be.

And for the Court, then, to determine, in the light of those impacts, both the question of statutory construction and the constitutional issue.

There are a number of very difficult questions of statutory construction posed by this statute.

I don't think they need all to be resolved in order to make these threshold determinations of what significant impact the statute would have.

Because regardless of how they are resolved, if the statute is held applicable to the Committee, there would be, I think, four direct, immediate and significant impacts.

First, there would have to be a designated Federal officer who would have to attend each and every meeting of the advisory committee.

This Federal officer would have the authority to call those meetings, to adjourn those meetings, and, we believe, would also have, under the statute, control over the agenda.

So the immediate result would be that the Committee would lose a good deal of its private autonomy and would become subject to a significant measure of Federal control.

Secondly--

Unidentified Justice: That officer would be appointed by the Justice Department, I take it?

Mr. Shapiro: --Yes, Your Honor.

Unidentified Justice: So it would be somebody out of the Attorney General's office?

Mr. Shapiro: It would be a government official who would be appointed by the Justice Department, so long as the Committee were working with the Justice Department.

Unidentified Justice: From the standpoint of a facial or free speech analysis, I think that raises serious concerns, but it's not clear to me that we have enough information to say that it raises a real systemic problem with reference to separation of powers.

Mr. Shapiro: Your Honor, we believe that it fundamentally affects the relationship between what, up to now has been, the Executive on the one hand, and a purely private group on the other.

So that the process, which... of which this is just one part, the process of essentially federalizing that private group, there are other aspects of which that will happen, seems to us, will dramatically affect the relationship, will dramatically affect the extent to which the President, acting through his Judicial Selection Committee, can seek outside, private help in this matter.

Because not only is there a designated Federal officer, there is, under the statute, a designated management officer, whose job will be to take custody, to keep control of, all the records of this advisory committee; not simply the records of communications from the advisory committee to the Executive, but the records of the records of the advisory committee itself, the internal records of the advisory committee itself.

Again, an effort we believe towards federalizing the operation of this advisory committee in a way which may lead the Committee itself to feel it can't function under that regime, or will, I think, dramatically affect the relationship.

Third, the committee is, under the statute, made subject to the mandatory and continuing oversight of both the General Services Administration and the committees of the Senate and the House that supposedly have jurisdiction in this area, which presumably would be the Judiciary Committees of each house.

Finally, the records, and these include the internal records of the Committee, together with all meetings of the Committee, would be subject to the open access provisions of the Act.

And the decision on whether or not to apply the exemptions that are available, would not be up to the Committee, but would be up to the Federal officers who are in charge of administering that part of the statute.

Unfortunately, we don't feel that we can readily and completely accept the offer of Public Citizen, that all of the matters that need to be protected from the viewpoint of the Executive and the Committee would, in fact, be protected by those exemptions.

We know that the Washington Legal Foundation itself takes a different view on some of these.

We have no doubt that they would be involved in litigation if the Act were held subject to this committee.

There are a number of other related provisions which are not so important.

Apparently the relationship would have to terminate immediately, could only be renewed on the filing of a charter and other matters.

There would be requirements of reporting and so on.

So that the overall effect would be one of really destroying the private character of this organization as a consultant, with respect to the relationship to the Executive and to the President.

Unidentified Justice: If... if you can say all of that on this record, I'm not sure why you said in your brief in a footnote that you don't need to address the First Amendment.

I understand that they are alternative points, but it seems to me that these sound... each of these, like a First Amendment analysis, and if you don't need a trial or further proceedings for the separation of powers point, I don't see why you'd need it for the First Amendment either.

Mr. Shapiro: The First Amendment... let me say two things about the First Amendment point on which we've taken a very limited position in our brief.

First, the First Amendment is being raised for the first time in this whole litigation in this Court.

The First Amendment question may raise issues of statutory construction and the reach of the statute that we do not believe have to be resolved to resolve the questions of application and constitutionality that we are raising.

It is our position that, to the extent and advisory committee functions in some sort of preferred capacity, receiving confidential information that is not generally available, that there is no sustainable First Amendment claim that that committee can make.

But, in any event, we think that because the First Amendment issue may raise its own difficult issues of statutory construction, that that issue should be remanded to the lower courts if it's--

Unidentified Justice: Well, Mr. Shapiro, is it the government's position that is has really two rounds of litigation, that it can take one position in the lower courts the first time, and then raise an issue in the Supreme Court and say, we didn't raise it below, but we think it's important, so send it back for another round?

Mr. Shapiro: --Your Honor, we have not raised the First Amendment issue in our brief.

We commented on it in a footnote only because the American Bar Association raised it as Appellee.

We do not believe that that issue should be reached in this case.

We believe that if the Court thinks it's not too late to consider the ABA's raising of the brief, then it would be appropriate to remand it.

We have not raised the issue here.

We have only tried to respond in a footnote to the ABA's effort to raise it.

It's against this background, then, that we think the question... the very difficult question of statutory construction must be considered.

I think at the outset, with the question... the question of statutory construction, we should emphasize, is not really a question of plain meeting or not plain meeting.

The Appellants come here clad in the armor of plain meeting, or at least purport to, but the fact is that this statute is so broadly and sweepingly written that it has been consistently recognized not to have any ascertainable plain meeting.

The broadest possible reach of the definition of an advisory committee under this statute could apply to any situation in which the Executive tries to obtain the help of two or more people if one of those people is not a Federal employee.

To give the statute that kind of broad reading has been consistently recognized to threaten to cripple the Executive process of consultation and to raise the most serious issues of separation of powers.

The result is that from the very beginning, the statute has not been given the broadest, most sweeping construction that the language might justify.

There are many examples of that.

A few of most significant, I think, for our purposes include some, which the Appellants have conceded in this Court.

For example, despite the sweeping language of the statute, it is thought to to apply to consultation of informal or ad hoc groups, at least where the advice sought is not clearly spelled out in advance.

Second, it is thought, under the regulations of the GSA, and again, appellants appear to concede this point, that the Act probably does not apply if the advisory group does not have some sort of preferred position in the hierarchy of those groups whose advice is sought, which may, indeed, require the communication of some confidential information.

Third, the Act has been held not to apply to an advisory committee that has operational as well as advisory functions, the Bicentennial Commission being an example of that in a case prosecuted and lost by Public Citizen in the courts below.

Finally, as an example, the Act has been held not to apply in cases in which the advice of the group is sought from the individual members of the group rather than on some consensus basis from the group as a whole.

Now none of these constructions, all of which we believe are sincere, good-faith efforts to come to terms with a very sweeping statute, none of these constructions can be explained solely on the basis of the very sweeping language.

They can be explained, we believe, only on the basis of a conscientious and intensive effort to figure out what it was Congress was concerned about, what it was that they were trying to do.

And that is the effort that we have tried to undertake in our brief and that we urge this Court to undertake.

We believe that if you do make that examination of the history, background and concern of this Act, you discover that the primary concerns of Congress were first, with the waste of a great deal of Federal money and effort.

Money that, at the time the Act was enacted, was approaching something like $100 million a year, and which, even under the statute has continued to mount ever since.

The other principal concern, we believe, was essentially with the undue influence that advisory committees were thought to have on the implementation of regulatory legislative policy; matters that are clearly of continuing legislative concern and oversight.

Indeed, when this Act was introduced in the House, both the chair of the committee and the minority chair spoke of their concern that advisory committees were usurping the proper role of Congress with respect to the oversight of regulatory and legislative policy.

Unidentified Justice: Mr. Shapiro, I take it that sooner or later you are going to get down to the actual language of the Act and see how you avoid that?

Mr. Shapiro: Yes, Your Honor.

But I think that it has to be done against the background of these two concerns.

As the Act was drafted, both in the House and Senate, it spoke only of advisory committees established by the Executive or by the President.

Indeed, presidential commissions, advisory commissions came into the process--

Unidentified Justice: But that isn't the way it was passed?

Mr. Shapiro: --No.

The conference committee added the word utilize without any explanation.

And, of course, it is sometimes thought that conference committees are not supposed to enlarge or significantly alter the effect of the statute as it has come from both branches.

So one possible argument is that the word utilize, in effect, did not actually change the scope of the statute, but simply was designed to clarify it.

Unidentified Justice: Well, you're... you're saying we just should ignore the word utilize?

Mr. Shapiro: No, sir.

No, sir.

Unidentified Justice: Because... there will be a lot of committees, you would say, that are utilized that are covered by the Act, I suppose?

Mr. Shapiro: That's right.

That's right.

No, we think the word utilize has had an effect, we simply don't think that its proper scope can be determined simply looking at its dictionary meaning, just as in the O'Connor case, the proper scope of the word income taxes could not be determined by looking at the four corners of the treaty.

And in the American Trucking Association case, the proper scope of the word employees could similarly not be determined.

The efforts that we've discussed before, to limit the scope of the Act, do not turn on the dictionary meaning of the word utilize, they turn on a concern that application of the Act, giving it its full sweep, could effectively cripple the operation of the Executive and raise serious separation of powers problems.

Those issues, it seems to us, are intensified when we are talking about powers like the nominating power, the pardon power, the veto power; powers that are--

Unidentified Justice: So what do you do to the word utilize?

What do you--

Mr. Shapiro: --I do to the word utilize... or we do, I think essentially what the Court did to the word income taxes in the O'Connor case.

Unidentified Justice: --Well, what was that?

Mr. Shapiro: The Court said that the exemption from all income taxes under the treaty did not include Federal income taxes because it was apparent from the concerns of those who wrote the treaty that the desire was to exclude people from income taxes levied by Panama and not by... from income taxes levied by the United States.

We believe that it is equally true that there was no purpose here to regulate the activities of the committees... those committees that made no use of Federal funds, and that were in no way involved with the implementation of legislative policy.

But, rather, were involved entirely, and at their own expense, with advising the President on matters of his exclusive concern.

There is not one reference in this very elaborate legislative history to the very well known activities of this Committee at the time, or indeed, to any activities of the President that fall into the categories that we are discussing.

Unidentified Justice: You do not place much confidence in the case of Church of the Holy Trinity?

Mr. Shapiro: We do, Your Honor.

We have cited the history--

Unidentified Justice: You certainly don't place much confidence... or emphasis on it in your brief.

Mr. Shapiro: --We've cited cases that cite it--

[Laughter]

And we are happy to rely on it.

The case is very much like the O'Connor case, like the American Trucking Association's case.

There are many cases in which words have been limited, not because of their dictionary meaning, but because it... it appeared so evident that they fell so far beyond the scope of Congressional concern.

In the Holy Trinity case, the... the problem was similar; the Catholic Bishop case, the problem was similar.

There are so many cases in which this rule has been applied.

And the cases we believe are most significant, in which we are talking about serious constitutional questions that were never addressed or considered by Congress.

In those cases, we believe it is appropriate to apply a clear statement rule.

And, any version of that rule, I believe, would lead to the result we are contending for here.

Now, it's for all those reasons that we believe the constitutional questions that we are raising do not need to be reached.

But we believe it's appropriate to discuss them both because the Court may reach them, and because we believe that they flesh out, lend substance to the arguments of statutory construction that we're making.

The effect of the Act, if it applies in this case, is, we believe, severely to change the relationship between the Executive and Bar Committee with respect to the nominating power.

Now the nominating power is a very special power under the Constitution, and I think must be distinguished from the appointment process.

The appointment process involves both the exercise of the presidential nominating power and the exercise of the senatorial function of advice and consent.

But the nominating power itself is clearly the prerogative of the Executive, and it is thought to be a very special prerogative of the Executive from the very beginning.

Hamilton, Jefferson, Washington, and others, at the very beginning, and their successors ever since, have felt that this process must be exclusively theirs, and that they must be able to consult people whom they wish to consult on an entirely confidential basis--

Unidentified Justice: Mr. Shapiro, has this Act been applied to some advisory committee on ambassadorial appointments by the President?

Mr. Shapiro: --I think there may have been a point under President Carter's Administration, when there was such a committee, which the Executive at that time may have chosen to subject to the Act.

I don't believe there was any litigation over it.

At the present time there are a number of presidential advisory commissions that are subject to the Act.

I don't believe any of them fit into the category that we are talking about today.

Unidentified Justice: None of them are private agencies?

Mr. Shapiro: I believe, to the extent we have looked into this and we have been able... we have checked, for example, all the committees cited in the Appellant's brief, everyone of the committees cited uses significant Federal funds.

Many were created by the Federal Government--

Unidentified Justice: How about things like the Republican National Committee?

Mr. Shapiro: --I know of no effort to apply the Act to any communications between the Executive and the Republican National Committee.

Unidentified Justice: But, theoretically, if it applies here to the ABA Committee, it would apply to that?

Mr. Shapiro: It might.

It might, depending on a number--

Unidentified Justice: Or the AFL-CIO committees in advising the President or the Department of Labor?

Mr. Shapiro: --If the President, for example, were to consult with the AFL-CIO and its Executive Council, with respect to the appointment of the Secretary of Labor, if the Act were held applicable to the ABA Committee, I find it very difficult to see how it could not be held applicable there.

And it seems to me, similar constitutional questions would arise.

The nominating power, we believe, is very special because of the emphasis of the Framers on the President's sole responsibility for the nomination, and the essential aspect that, in order to exercise that responsibility, he must have discretion to consult the people he chooses to consult in the manner he chooses to exercise.

And every president since Washington, I believe, has recognized that confidentiality is an essential part of that process, because it is only through that kind of confidentiality that he can have the kind of candor--

Unidentified Justice: So... so would you say that Congress could not enact any direct regulation of the nominating process?

Mr. Shapiro: --Congress' power to regulate the nominating process, Your Honor, we believe is extremely limited.

With respect to its ability to regulate the President's discretion in seeking advice, it is our position that Congress has no power of any kind.

Unidentified Justice: Are there any instances where Congress does attempt to regulate the nominating process, other than the one before us?

Mr. Shapiro: I think perhaps the most relevant is in the area of qualifications for office.

That is, there are a number of situations where Congress has not only defined a particular or Federal office, but, as part of that process, has spelled out the qualifications for that office.

Unidentified Justice: That's not true with respect to judges, is it, or is it?

Mr. Shapiro: I believe that, I'm not certain, but I believe that District judges have to be residents of the state in which they're appointed.

There is, I think a residence requirement for judges.

Unidentified Justice: By statute?

Mr. Shapiro: Uh-huh, by statute.

Now we don't deny that reasonable qualifications on eligibility for office are within the authority of Congress to define those offices, but we do believe that that authority is not subject simply to a rationality test, because it does impose a very severe problem of invading the President's authority to nominate.

If, for example, there were a statute that said that members of this Court could only be nominated from among those who were already Federal judges, that could perhaps be rationally related to the job.

But we believe it would be too great an interference with the President's authority to nominate.

So that a very close look, we believe, must be taken, and questions of that sort.

But the overlap between--

Unidentified Justice: So what's the test you propose?

Mr. Shapiro: --Well, in the area of qualifications, we think that inevitably the test is one of balance.

In the area of the President's ability to seek advice from the people he chooses and in the manner he chooses, we submit the test is not one of balance.

That this is a matter over which Congress has no control; that Congress' role in the appointments process, with respect to advice and consultation, is limited to the advice and consent role of the Senate after the nomination has been made.

That the interference that this Act would impose on the very important discretion of the President to seek the advice of those he chooses and in the manner he chooses, cannot be sustained with the authority of the President under Article II.

If there are no further questions.

Thank you.

Unidentified Justice: Thank you, Mr. Shapiro.

Mr. Kamenar, you have two minutes remaining.

Mr. Kamenar: Just briefly, Your Honor, to rebut some of the points being made here by opposing counsel.

They're worried about interfering with the powers of the President, in crippling the presidency in this particular situation.

They have yet to talk about how filing a simple charter would somehow bring the presidency to a grinding halt, to let the public know what is the purpose of the ABA Committee in terms of evaluating candidates.

They talk about having to have people attend these meetings, yet the Attorney General, William Saxby himself, stated that applying this law should,

"have little practical effect upon the ABA Committee."

precisely because they have very few meetings in which they conduct their business.

So it would not be as intrusive as they would say.

And it seems that the government is worried about somehow federalizing this particular ABA committee, but I would not that even the ABA themselves think of themselves as a quasi-official or government official.

During Justice Kennedy's hearings, Senator Grassley asked Judge Tyler, who is chairman of the ABA Committee,

"I'm trying to have a public dialogue with you based on the quasi-public function that you serve."

"Maybe you don't think that you serve that kind of function."

Mr. Tyler: "I agree, we do".

And again, that was reiterated during the hearings for Judge Bork.

So it seems to me that Justice... Justice Kennedy is correct, that that's more of a First Amendment argument, rather than whether or not this Committee comes under the statute.

With respect to the statutory interpretation argument, I think there is argument is pretty absurd, because if they're talking about whether Congress intended to regulate the presidential advisory committees, they expressly provided in the statute a provision for presidential advisory committees.

I don't see how Congress could get any clearer that that's what they intended to do.

And certainly Congress knows that the President exercises exclusive powers and exercises shared or concurrent powers.

And they did give exemptions to the President for advisory committees for the CIA.

And I don't think we should carve out a special exemption for the ABA in this statute.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Kamenar.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Virginia v. American Booksellers Assn. - Oral Argument

Wed, 13 Apr 2011 20:09:34 +0000

Case:

Virginia v. American Booksellers Assn.

Media File:

86-1034_19871104-argument.mp3

Related Transcript:

86-1034_19871104-argument.xml

Transcript:

ORAL ARGUMENT OF RICHARD BAIN SMITH, ESQUIRE ON BEHALF OF THE APPELLANT

Chief Justice William H. Rehnquist: We will hear argument first this morning in No. 86-1034, Virginia v. American Booksellers Association.

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

Richard Bain Smith: Mr. Chief Justice, members of the Court, may it please the Court, we are here this morning on a case involving a 1985 amendment to a Virginia statute shielding the exposure of juveniles to certain sexually explicit material by regulating the manner of its display, and despite outward appearances, frankly, from reading both sides' briefs, I would suggest to this Court that the issue in this case is really very simple, because we really have one issue, and the issue turns on the type of material that this amendment affects.

Now, from the start of this litigation, from literally the first page of the transcript, the plaintiffs in this case have painted a picture of a statute with a very broad range effect, a range of material involving material with great beauty and great literary value, a range of material that they include James Joyce's Ulysses, William Faulkner's Sanctuary, and even the Penguine Book of Love Poetry, which is an anthology of all the great poems of the English language from Robert Browning to Alfred Lord Tennyson.

If that range is correct, if they are correct that this amendment involves that material, then we lose the case, and I submit to the Court that we should lose the case, because the Commonwealth of Virginia does not desire to restrict in any way, directly or indirectly, that type of material.

But by the same token, if the material affected is not this broad range, then I would submit to the Court that the plaintiffs cannot prevail, because every burden that they speculate about, every terrible effect that they speculate about, all of their evidence in the District Court, everything in their brief, and I am sure everything that Mr. Bator is going to say this morning turns on that concept of this broad range material, and I would say--

Unidentified Justice: This is a facial attack, is it not?

Richard Bain Smith: --Yes, Justice Brenner, it is a facial attack.

I would submit to the Court that the statute they are attacking, the statute involving this broad range of material is a hypothetical statute.

It does not exist in Virginia.

Unidentified Justice: Mr. Smith, did the state concede at the appellate level below that books such as Hollywood Wives would be covered by the statute?

Richard Bain Smith: Justice O'Connor, I am sure today that the day that I die my tombstone is going to say

"Richard B. Smith said Hollywood Wives was obscene. "

I have said it over and over again.

What we said was, one of their witnesses said, of all the exhibits that they put in, of all their exhibits, that was the only one that she said she thought children should not see.

And so in the Court of Appeals and the brief, I think it was in a footnote, I said, of all the exhibits, that was the only one that might be involved based on what she had said.

I have since gone back... I came up, I looked through all the exhibits.

Not one exhibit they have submitted falls within this statute, including Hollywood Wives.

Now, what we suggest to the Court this statute involves is not this broad range of conceded beauty, conceded literary value, of very narrow range.

This statute deals with borderline obscenity.

It deals with exactly the same thing that Ginsburg v. New York dealt with, borderline obscenity.

Unidentified Justice: Well, what is your point, that the appellees had no standing below?

Richard Bain Smith: Justice O'Connor, I would submit that... I agree with what Mr. Bator said in his brief, that really the standing question and the merits question here turn on the same thing.

If the material they are talking about is this broad range, then they have standing, because concededly that is the type of material that they are displaying and have been selling to juveniles, and we concede that, what they are talking about.

But the point is that the burden that they have suggested exists here is that because of this broad range it is impossible for them to be able to comply with the statute both financially and otherwise without putting themselves out of business, or at least severely restricting their business.

And because of that, they... both their First Amendment rights and the First Amendment rights of adults will be overly restrictive.

And that, I think, is the importance of this broad range effect, because if we are talking about this narrow range of borderline obscenity, for one thing, there is nothing in the record to indicate that there is any burden whatsoever placed on them by that type of material.

And secondly, I would suggest to the Court that that is--

Unidentified Justice: Well, how are we supposed to decide that, by looking at the words of the statute?

Richard Bain Smith: --I would suggest to the Court two ways.

First, the amendment and the definitional statute, because that is something that the plaintiffs have purposely ignored in this case.

It is something that their witnesses below were never shown, was the definitions of the material involved in this case.

And I would submit that both from the face of the statute and their evidence supports that there is this narrow range, and I say that for this reason.

The definitions involved here are the same ones that the statute in Ginsburg versus New York used.

It is not just any sex, any sexual content that is in a book.

And that is where they have made their big mistake.

They have assumed all the way through that if there is any sexual content whatsoever, then this material falls within our amendment.

Unidentified Justice: Where did this case come from, what court?

Richard Bain Smith: District Court in Alexandria, and then up to the Fourth Circuit.

Unidentified Justice: Didn't those courts have some view of the breadth, the reach of the statute?

Richard Bain Smith: They never really focused on it.

The District Court never discussed--

Unidentified Justice: Well, they must have had some notion of what the reach was to do what they did to the statute.

Richard Bain Smith: --The Fourth Circuit did a very strange thing.

The Fourth Circuit refused to accept any of the findings of the District Court below, and then they took some findings--

Unidentified Justice: It seems to me they thought it was much broader than you say it is.

Richard Bain Smith: --Justice White--

Unidentified Justice: Is that right or not?

Did they view it much more broadly than you do?

Richard Bain Smith: --They were talking about a different statute, because they were looking at a statute from Georgia.

That--

Unidentified Justice: Well, you still don't answer my question.

Richard Bain Smith: --They never came to grips with this issue.

Unidentified Justice: With the breadth of the statute?

Richard Bain Smith: They never discussed one way or the other.

What they did, they talked about a case from Georgia in which evidence there dealt with a statute that the Court there found had this broad reach, and that is what--

Unidentified Justice: Well, I assume that if we found that the Court of Appeals or the District Court... the Court of Appeals defined this statute more broadly than you do, we might very well take the Court of Appeals view of what the meaning of a state statute is.

Richard Bain Smith: --As I said, if you take the broad view, we lose, but I would suggest that what the Court of Appeals did--

Unidentified Justice: Well, did the Court of Appeals take the broad view?

Richard Bain Smith: --What they did was, they said, we assume that there are these burdens.

They never got into construing the statute one way or the other, and I would submit to the Court that even if the Court of Appeals had actually gotten to the statute, we are asking this Court to look at it a second time, because we are suggesting that it is a matter of law, not as a matter of fact.

Unidentified Justice: Did you ask the District Court to abstain in order to obtain construction of this from the Virginia courts?

Richard Bain Smith: There was a request for an extension.

We were... the Attorney General's office was brought into this case on the certification of 2403(b).

One of the other defendants and all the defendants did ask the District Court to abstain.

And ironically, the reason the District Court refused to abstain was because he said there was no unclear parts of the statute, and yet for the last two years both the plaintiffs and the state have been arguing over the meaning of all these terms.

Unidentified Justice: Now, did you raise that question in the Fourth Circuit, the District Court's failure to abstain?

Richard Bain Smith: We raised the question of the District Court should have applied the narrowing constructions of the statute.

We did not in so many words say the District Court should have abstained in the sense of Abstention Doctrine.

We were arguing that under the First Amendment overbreadth test the District Court should have narrowed the construction.

Unidentified Justice: Well, those are two quite different points.

So you didn't preserve the abstention argument, did you?

Richard Bain Smith: The plaintiffs say we did.

The plaintiffs say we have been arguing... that is what we have been arguing all along, and the Court of Appeals did in fact say that abstention... they addressed the issue and said abstention was not appropriate.

Unidentified Justice: The Court of Appeals decided that... they passed on it.

Richard Bain Smith: They passed on it, if I am not mistaken.

Unidentified Justice: Didn't the Court of Appeals accepted the District Court's finding that this statute would affect a certain percentage of the materials in the bookstores?

Richard Bain Smith: No, sir.

Unidentified Justice: I thought it accepted a finding that from 5 to 50 percent.

Richard Bain Smith: What they said was this, and this is what I was starting to say earlier.

I have never seen this done in any case.

The Fourth Circuit said the evidence presented below is so minimal that we can't make a determination from what the District Court--

Unidentified Justice: Of what?

Richard Bain Smith: --Of the percentage of books involved.

Unidentified Justice: But the District Court found that.

Richard Bain Smith: The District Court made that finding.

Then the Court of Appeals say, but we assume that it does, and then they went off on this tangent on the statute in Georgia that has a completely different statute than Virginia's, but I would suggest to the Court that the reason that this statute deals with borderline obscenity and not this broad range, as I said earlier, it is from the face of the statute, it only involves certain very narrowly restricted types of activities.

It has to have--

Unidentified Justice: May I just go back to Justice White's question for a minute?

In Footnote 9, the Court of Appeals ends the footnote, saying,

"The District Court found that a significant percentage of the inventory of the average general bookstore varying between 5 and 25 percent falls within the amendment's restrictions. "

My question is, did you ask that the Court of Appeals set aside that finding as clearly erroneous on appeal?

Richard Bain Smith: --I cannot remember.

I honestly cannot remember.

Unidentified Justice: Because if you didn't should we not accept that as a factual determination?

Richard Bain Smith: If you read on with the footnote, Justice--

Unidentified Justice: That is the end of the footnote.

Richard Bain Smith: --If you read on with the footnote, they say, and the state said there is a very miniscule amount of material involved.

Unidentified Justice: Yes, you argue that, and then the last sentence is the one that the District Court found 5 to 25 percent.

Richard Bain Smith: Right, and the Fourth Circuit never said who was right, and when you go back up to what that is footnoted to, the Fourth Circuit said, whatever, we are going to assume that there is this broad range, and they cited to this case in Georgia that is a completely different statute involving a completely different range of material.

Unidentified Justice: Let me just put it this way.

Is it correct that your position in this Court depends on our disagreeing with the District Court's finding of facts?

Richard Bain Smith: Yes.

Unidentified Justice: So if it is 25 percent, you lose.

Richard Bain Smith: Yes.

Unidentified Justice: Well, you call that a finding of fact, Mr. Smith?

Richard Bain Smith: No, sir.

Unidentified Justice: Are you sure that is a finding of fact?

whether, what books in a store are covered by a particular statute?

That is just a factual finding?

That is all it is?

Richard Bain Smith: As I said earlier, we--

Unidentified Justice: Do we have to take whatever the District Court says about that?

Richard Bain Smith: --I believe... I think this Court has made it--

Unidentified Justice: Does it know how many cows there are in Virginia?

Richard Bain Smith: --This Court has made it clear for the last three decades that the question of what is obscene in a book is a matter of law, not as a matter of fact.

And you have to remember--

Unidentified Justice: I am not talking about what is obscene.

I am talking about what the statute covers.

Is that a question of fact, what books the statute covers, whether obscene or not?

Richard Bain Smith: --No, Justice Scalia.

I believe it is a question of law.

And when you have this--

Unidentified Justice: But it certainly has to be based on the evidence.

Richard Bain Smith: --It was based on--

Unidentified Justice: I mean, a court isn't going to find what percentage of books in a bookstore are covered by the statute without... even if it knows what the statute means, it has got to know what books are in the store.

Richard Bain Smith: --It was based on an assessment of two things.

First, the District Court said based upon the plaintiff's testimony and the exhibits, and the Court's review of the exhibits, I am submitting to the Court that as far as the exhibits are concerned, that is clearly a matter of law whether they are obscene for juveniles.

Unidentified Justice: All right, so say it is a matter of law.

Then what do we do with what the Court of Appeals did to the District Court's statement of the law?

Richard Bain Smith: Well, there again, they never really said what... they had that in the footnote.

They just threw it out that that is what the District Court said, but if you read the actual text of the case, they didn't accept it.

They just said, we are going to assume this, and they have a footnote, and the footnote says, well, the District Court says this, and the state says that.

They never say the District Court, they never say the state was wrong, they just say, we are going to assume it is based on what happened in Georgia, which is a completely different situation than Virginia.

Unidentified Justice: In order to decide what percentage of one's inventory is affected by a statute, you need to know first what the inventory consists of, and second, what the statute means, don't you?

Richard Bain Smith: Yes, Mr. Chief Justice, and I would submit to the Court, which was the point I was trying to get to with Justice White, as far as the evidence presented, it was based on the testimony of two bookstore owners who admitted on cross examination that they didn't have the faintest idea what the definitions were.

All of their testimony as to all of the material affected was given in a complete vacuum.

There was no basis for it.

There was, and I will, if I could for just a moment, this is indicative of both testimony directly from the appendix, and it will be very short.

Unidentified Justice: Before you do that, may I just--

Richard Bain Smith: Yes, sir.

Unidentified Justice: --Even if the witnesses didn't understand what the statute means, do you also contend the District Court didn't understand the statute?

Richard Bain Smith: I would submit to the Court that for the Disrict Court to find that the exhibits that these plaintiffs presented fell within the amendment, then the District Court completely misread Virginia law, because none of their exhibits fall within the statute.

Unidentified Justice: Well, you also there are suggesting that the plaintiffs who tried this case, those lawyers really didn't understand what was going on, that they really failed in their proof.

Richard Bain Smith: Oh, yes, sir, I think that is exactly right, they failed in their proof, and I suggest to the Court that it was purposeful, because I think that from the start of this litigation, it is a lot easier if you are going into a federal court and claiming that the state is trying to restrict James Joyce's Ulysses than it is to go in and say the state is trying to restrict Hustler.

And I cannot imagine any other reason why they never showed their own witnesses the definitions before they testified.

They told their witnesses... their witnesses came in with a group of books.

Their testimony was, and questionings from the plaintiffs, do you think that any book with a picture of nudity in it is going to be affected?

Yes.

That is not true.

That has nothing to do with the Virginia statute.

The Virginia Supreme Court has ruled, just like this Court has, it has to be a lewd view of the genitals, not mere nudity, and this permeated their testimony.

Unidentified Justice: Have they done that with respect to the juvenile statute?

Richard Bain Smith: I am sorry, Justice--

Unidentified Justice: Have they so ruled with respect to the juvenile statute as opposed to obscenity generally?

Richard Bain Smith: --They have ruled with respect to a similar statute.

They had... before this Court had the case of New York versus Ferber, which was the so-called kiddie porn case, Virginia had essentially that same case, and in talking about what is obscene for juveniles, the Virginia Supreme Court expressly held, citing Miller versus California, I believe, that whether it is adults or juveniles, mere nudity cannot be obscene for juveniles.

That case is cited in our brief, Freeman v. Commonwealth.

Unidentified Justice: Mere nudity can never be obscene for a juvenile?

Richard Bain Smith: Mere nudity in the sense of just a picture of the human body.

They went on to say that the nudity has to be a lewd exhibition of the genitals, as this Court gave as the example in Miller v. California.

And I would just like to read, if I can get back to the record just for a moment, it is a question to their... and this sums up their entire case upon which this is based.

This is after they have presented all of the books.

This is after they have presented all of their evidence.

On cross examination the state's lawyer asked,

"Question: Ms. Ross, do you know what the legal definition of harmful to juveniles is? "

"Answer: No. "

"Question: Has anyone read that to you? "

"Answer: No. "

"Is there one? "

"Question: No one ever told you there was one, did they? "

"Answer: I don't know. "

"Not that I remember. "

"What is the legal definition? "

That was the context of their case in the District Court.

Taking that--

Unidentified Justice: Did they ever just describe what kind of books were in these stores?

Richard Bain Smith: --They are general bookstores, just the typical... one is Ampersand Books in Alexandria, and the other one--

Unidentified Justice: Well, did they say... did they describe what kind of books they had in their stores?

Richard Bain Smith: --Yes, their exhibits were normal books that might--

Unidentified Justice: Well, let's assume the District Court looked at those books, then read the statute, and decided that X percent of those books in that store would be covered.

Now, let's just assume the District Court went through that routine.

You are asking us to disagree with the District Court.

Richard Bain Smith: --I am asking the Court that this is a matter of law, that the District Court was wrong about that, that none of their exhibits--

Unidentified Justice: Well, that means, I suppose, then we have to really look at... go through the exhibits, look at the evidence, and then decide what the statute means and say... you want us to say then that the Court of Appeals and the District Court were wrong.

Richard Bain Smith: --I will wager this case on one exhibit, Plaintiff's Exhibit No. 4, The Penguin Book of Love Poetry.

If that book falls within this statute, then we concede the case.

You don't have to look at all of them.

Just look at that one book.

Or if you want to look at all of them, the same thing goes for all of them, because every one of them--

Unidentified Justice: I don't want to look at any of them.

You are basically arguing that the statute has a narrower meaning than the lower court said, and presumably it could affect 80 percent of the books in a pornographic bookstore or 2 percent of the books in a regular.

The percentage of books affected across the board isn't so important.

It is what the statute means in terms of our decided cases.

Richard Bain Smith: --I think it is a joint question.

I think it is important what the statute means, but secondly, I think the number is important as far as these plaintiffs are concerned, because they have built their whole case on the fact that there is such a large amount that their whole case on the fact that there is such a large amount of material involved.

Unidentified Justice: But suppose there were a bunch of people that concededly deal in pornography.

Would it make much of a case for them to come in and say, look, this statute restricting juvenile access affects 90 percent of our books?

Richard Bain Smith: No, because then I would suggest this Court has no problem with the case, because then you would know you were dealing with borderline obscenity in this Court in every case in this area always found that that is... the periphery of the first amendment.

As Mr. Justice Stevens said in Young v. American Minitheaters, there is very little, if any, interest in the uninhibited exhibition of that type of material, and that is the type of material that we are involved in.

Unidentified Justice: The percentage is really not that consequential of that percentage is derived by the proper interpretation of the statute, as you say it is proper, then there wouldn't be anything horrible about coming down on the bookstore that happens to have 20 percent of it or 25 percent of it.

It is important from this context.

They came up with all these horrible ways, the only ways they could comply with the statute, and one of which was borrowing... totally barring juveniles from their bookstore.

I would suggest to the Court if you are talking about a normal everyday bookstore, barring juveniles from that bookstore because of supposedly this large amount of material would be devastating.

I would suggest to the Court that borrowing juveniles from an adult bookstore that has 90 percent of the inventory that is borderline obscenity would not be the kind of burden that this Court was concerned about in the cases dealing with this type of situation.

What is the narrowing language in the statute that you think was not adequately considered by the courts below?

Richard Bain Smith: Well, there are two parts.

The first part is the definitions themselves.

The definitions in Section 18.2-390, which I set out in my brief, very narrowly define types of sexual activities that are involved--

Unidentified Justice: Those are the definitions of what is harmful to juveniles?

Richard Bain Smith: --They are the definitions of the material involved in the statute.

Even if a work has that material, it is still not within the statute.

It still has to be harmful to juveniles, and that is what the Eighth Circuit said in the Upper Midwest case pushes this case up to the borderline of obscenity, because... and I will give you a quick example.

In Young v. American Minitheaters, those bookstores and theaters were found to be adult bookstores based on just the fact of the type of sexual material they involved, sado-mashochistic abuse, lewd nudity, this kind of thing.

Those types of materials would not fall under this statute, because you have to go a step further.

It has to be obscene for juveniles, and it is exactly what the Eighth Circuit was talking about in the Upper Midwest case that I cited in the brief.

Unidentified Justice: Well, isn't your argument on this percentage business, isn't it that you are contending that this statute has only a de minimis consequence to these, the people who... the plaintiff, the plaintiffs' bookstores?

Richard Bain Smith: Yes, sir.

Unidentified Justice: That is right?

Richard Bain Smith: Yes, sir.

Unidentified Justice: And therefore it really is sort of a miniscule burden to cause them to go through the steps to comply with the statute.

Richard Bain Smith: Given the... interest to the state in protecting its juveniles, given that it is borderline obscenity, that is exactly correct.

Unidentified Justice: But if it affects a much larger percentage, you seem to agree that the steps they would have to go through would be too burdensome.

Richard Bain Smith: As far as the everyday bookstore, that's correct.

Unidentified Justice: Yes.

Richard Bain Smith: But one of... and let me make this clear, getting back to what Justice Scalia was asking earlier.

For an everyday normal bookstore to bar juveniles because of some part of their material, a miniscule part, would be devastating for them.

For an adult bookstore with 90 percent books borderline obscenity, who cares?

I would like to reserve the remaining time for rebuttal unless the Court has any further questions.

Chief Justice William H. Rehnquist: Thank you, Mr. Smith.

We will hear now from you, Mr. Bator.

ORAL ARGUMENT OF PAUL M. BATOR, ESQUIRE ON BEHALF OF THE APPELLEES

Mr. Bator: Mr. Chief Justice, and may it please the Court, in Butler v. Michigan this Court announced a fundamental First Amendment rule, one from which it has never deviated.

The states are not free to place substantial restrictions on the access of adults to books and magazines that are protected by the First Amendment, even if the purpose of the protection is to safeguard children.

Our central submission today is that the Virginia nude display statute on its face violates this fundamental principle, because unlike the preexisting sales statute, which had no impact whatever on adults, this statute requires booksellers immediately to place important new restrictions on adult access to books protected by the First Amendment.

It places an immediate and affirmative obligation on booksellers to screen their inventory, to reorganize their displays, and to purge from their shelves, where books are freely and readily available, all books that have enough sexually explicit materials in them that they are not suitable for sale to children.

Unidentified Justice: Why couldn't you just have an adults only part of the bookstore?

Mr. Bator: I beg your pardon?

Unidentified Justice: Why couldn't you just have an adults only part of the bookstore?

Mr. Bator: Well, Your Honor, we think that would involve a very substantial restriction on the access of the adults.

Unidentified Justice: But all you'd be restricting would be juveniles, I would think.

Mr. Bator: Your Honor, there are a couple of reasons why that would be very difficult or onerous for adults.

First of all, books are sold in large numbers of places which are not bookstores.

We have newsstands, we have bookstands in supermarkets, at airport and drugstore counters.

They can't have two different sections.

It really is not feasible for them to have an adult section.

Secondly, the District Court--

Unidentified Justice: Are they members of your... are people like that members of your organization?

Mr. Bator: --Yes.

Unidentified Justice: Airport bookstands?

Mr. Bator: Yes, we represent really the whole gamut of booksellers and distributors, including those, Your Honor.

Now, another problem with--

Unidentified Justice: And hard core bookstores?

Mr. Bator: --I beg your pardon?

Unidentified Justice: And hard core bookstores?

Mr. Bator: No, our clients do not include any adult or porno bookstores whatever.

We do have two 20 to--

Unidentified Justice: Did the appellees below, Mr. Bator, make a claim that they sold books that met the definition of what is harmful to juveniles?

Mr. Bator: --Yes, the testimony below was very clear.

Unidentified Justice: I mean, well, but did the... your clients, did they claim that they display routinely books which meet the statutory definition of harmful to juveniles?

Mr. Bator: The statutory definition under the Virginia display statute.

Unidentified Justice: Yes.

Mr. Bator: Yes, Justice O'Connor.

We have testimony in the record, very clear testimony in the affidavits as well as in the oral testimony on the part of these bookstore owners that they understood the statute to cover somewhere between 25 to 40 percent of--

Unidentified Justice: Well, but did their testimony take into account the actual statutory definition, which does seem to be much more restrictive than the testimony would indicate they thought it was?

There is something to be said for what the state's attorney is arguing.

Or, to put it differently, Mr. Bator, if your clients indeed have 40 percent of books that meet this definition, I think you are inaccurate to say that they are not porno stores.

I think it is incredible that anybody could come within this... 40 percent within this definition is very high, it seems to me.

Mr. Bator: --No, Your Honor, because I think the statute covers a large amount of material.

The statute covers a large amount of material that does not fall into this classification of what do we mean by is it porno, but that does have some sexually explicit material.

I go back to both questions, because I want to be able to cover it.

Your Honor, these booksellers are, of course, not lawyers, but, of course, they are the ones who have to deal with this statute.

Unidentified Justice: Apparently they had not read the statute when they testified.

Now, this definition defines it exactly as the Court has in Miller, only refined down to juveniles, predominantly appeals to the prurient, shameful, or morbid interest of juveniles, is patently offensive to prevailing standards and the adult community as a whole with respect to what is suitable material for juveniles, and when taken as a whole lacking in serious literary, artistic, political, or scientific value for juveniles.

Did the testimony and the witnesses have in mind that precise definition?

Mr. Bator: Your Honor, I think the witnesses testified that they read the statute, but I think they read them as an ordinary nonlawyer would read them, and they gave an explanation of how they would understand this statute, and of course that is the perspective that is important.

They understood this statute to cover a substantial amount of their inventory.

Unidentified Justice: Well, as I looked at it, the ordinary books like Ulysses and other things that I would think of clearly wouldn't fit within this definition, so I am just wondering whether we have two ships passing in the night here.

Mr. Bator: Your Honor, I believe, and this now goes again to Justice Scalia's question as well, that it is a perfectly reasonable understanding of the statute and really just what this statute suggests that if you think that a book is unsuitable for sale to 13-year-old you may not display it in your bookstore.

Now, that does not just include porno.

That includes a large range of material which I would be rather averse to having a 13-year-old child of mine buy a in a bookstore, and that very much includes a large range of popular as well as literary works.

Now, we do have a District Court finding on this.

That is to say, it seems to me that the Attorney General has here said everything turns on what this statute encompasses.

But we have two courts below that made findings on that issue.

The District Court said they... the District Court didn't accept the testimony completely.

It lowered the percentage.

The District Court made its own judgment.

It said somewhere between 5 and 25 percent of the inventory of the non-adult bookshop is likely to be covered here.

Unidentified Justice: Did the District Court give its opinion as to precisely what the statute meant?

Mr. Bator: Yes.

Unidentified Justice: Where do we find that?

Mr. Bator: The District Court made a finding, and it is on Page A... on Page A20, third full paragraph.

Unidentified Justice: A20--

Mr. Bator: A20 of the jurisdictional statement.

The Court concludes that the average general bookstore carriers a significant percentage of materials varying between 5 and 10 percent that are harmful to juveniles as defined by--

Unidentified Justice: --Now, that could mean two different things, couldn't it?

It could mean that these bookstores are really then quite different than you have characterized them because they carry material that is much like that described in the Miller statute.

Mr. Bator: --No, Your Honor, I honestly believe the record would not support that conclusion.

These are ordinary bookshops.

Unidentified Justice: But all this finding tells you is that a certain percentage of the books in the store are covered by the statute.

Now, to me that doesn't militate one way or the other as to whether the statute is good or bad, because it depends on what the inventory of the bookstore is.

Mr. Bator: Yes, but the record is replete with descriptions of what these bookstores are, and I hope very much... the women who owned these bookstores gave very vivid and interesting testimony about what it is like to run an ordinary bookshop in Alexandria or Arlington.

These are the opposite of porno bookshops.

Now, the District Court finding was based in the context of these bookshops and the exhibits and the affidavits and the testimony, and--

Unidentified Justice: As far as the testimony goes, Mr. Bator, it is not worth a whole lot if it comes from people who haven't read the statute.

Mr. Bator: --I am sorry.

Unidentified Justice: I mean, as far as the testimony is concerned, it is not worth a whole lot if it was testimony by people that hadn't read the statute that they purported to be applying to the books.

Mr. Bator: Well, the District Judge made his own finding based not only on the testimony, but the affidavits and the exhibits.

The Court of Appeals was very careful not to disturb that finding, although it did say that the testimony is such that it is very hard to guess the exact percentage.

Unidentified Justice: --of the exact percentage anyway.

It is then... that is just to... as a predicate for inquiring how much of a burden it is on adults or within the bookstore.

Mr. Bator: It seems to me... again, this goes really to the interchange I had with Justice O'Connor.

That is, it is terribly important to understand that the life of this statute plays itself out not at the level of constitutional theory or lawyers' interpretation.

It plays itself out between the local bookshop and the local community, and that bookshops's fear of arrest and prosecution by the local attorney, commonwealth attorney and the local police.

Unidentified Justice: Yes, but it is not impossible to comply with the statute, no matter how much percentage of the books, and your submission is, and I guess it was taken below, that none of these ways of complying would remove the burden on adults.

Mr. Bator: Our point is not that it is impossible to comply, but that the effect of good faith compliance is likely to be a very drastic restriction on the free access of adults to these books.

Unidentified Justice: Well, Mr. Bator, could the bookstore set up a children's only section, not an adults only, but a children's only section, so that people who are affected are the children, not the adults?

Mr. Bator: I suppose a bookstore could have a children only section.

The real question is whether if you want to read a popular work or browse or look at a popular work of literature in an ordinary neighborhood bookstore, whether you have to enter a section that is labeled X, labeled adults only.

Unidentified Justice: Well, if you had a children's only section you wouldn't have to do that as an adult.

Mr. Bator, if every store had an adults only section, as you tell us would be necessary if all bookstores have large quantities of these books, do you really think it would be a great disincentive for adults to go into that section?

Have they stayed away from the movies in droves when they have adults only films?

Why would their reaction to general adults only sections in bookstores be any different?

Mr. Bator: Your Honor--

Unidentified Justice: You are being peppered with questions from both sides.

Just take your time and answer them, and hope in the future they will be asked one at a time.

Mr. Bator: --Your Honor, I feel like the hockey goalie who has pucks coming from all sides.

0 [Generallaughter.]

Your Honor, on the question of the deterrence, again we have... the District Court and the Court of Appeals went into that, and there was testimony.

The problem here is that the sale of books is very much affected by display, that is to say a large proportion of books are sold to people who aren't planning to go but who go in to read, to browse, and they come upon a book they rather like, so it is a very sensitive area.

The District Court found that there would be a substantial deterrent to adults... I understand that that doesn't deal with Justice O'Connor's hypothetical, but if it says X rated, adults only, a lot of people are going to stay out because they are embarrassed, and they don't want... These are not people in porno bookshops.

These are people in ordinary bookshops.

The fact is... this is not of record, and it is just based on my New York Times reading, but as I understand it, in the movie industry as well, even though movies are different because people plan to go to a movie, it is not an impulse thing, but an X rating on a movie, as I understand it, is thought to be commercial disaster, but there is another point here, Your Honor, that I want to stress before I get back to the other side of the bench.

There would be an enormous change in the general ambience and atmosphere of bookshops if what we have is an adult section, X only, and a children's section, children only.

That is to say, the whole atmosphere of a bookstore that we know... every one of us has been in a bookstore on Saturday afternoon, and really that is what this case is about, is what kind of bookstores do we want?

Do we want a bookstore where every book or every shelf is labeled with a government seal of approval or a government seal of disapproval?

That is the issue in this lawsuit.

The fact is that the life of the bookstore is free circulation for browsing, and that is what we think the statute badly inhibits.

Now, there is another problem, Justice O'Connor.

There is a large number of books where it would be disastrous to say children only.

I mean, I guess I don't even know quite what that would mean, because there are a lot of books that are absolutely proper for kids and for grown-ups and they are just general books.

I don't think we can reorganize the bookshops, this world of books and of intellect in terms of these tight rules, and really, I think our question is whether it is constitutional for the government basically to create an across the board rating system for books, and there is a great--

Unidentified Justice: Well, Mr. Bator, what if the statute just said it prohibited allowing juveniles to peruse and examine material that is harmful to them?

Mr. Bator: --I think that would be a more difficult case, although that also would create a tremendous problem for booksellers.

Unidentified Justice: But it certainly wouldn't be a burden on the adults, would it?

Mr. Bator: If the crime were for the booksellers to allow kids, I think there would be a very serious First Amendment problem, very much the same sort that the Court had in the Smith case, because the effect even of that statute would be to put pressure on the bookseller to self-censor.

The vice of this statute, and I think the problem that the Attorney General has absolutely never confronted, is that this--

Unidentified Justice: Well, at least it would avoid the burden on the adults.

Mr. Bator: --If the bookseller looks at the statute, even in the version Justice O'Connor gives, and decides the only safe thing to do here is if it has sex in it, put it under the counter or put it in an X-ray separate section, that is the burden on the adult.

Unidentified Justice: You think the burden would be to saying if you had a separate section in the bookstore that said minors not allowed?

Mr. Bator: It would be very problematic Your Honor.

I think that a lot of adults would find that intensely uncomfortable because it really labels them.

Unidentified Justice: As not minors?

Mr. Bator: I beg your pardon?

0 [Generallaughter.]

Unidentified Justice: As not minors.

It labels them that way.

Mr. Bator: They are not.

They are not minors.

I think in this world everybody knows what that is all about, and it would be a very radical departure from our traditions of what bookstores are supposed to be like.

If the statute as we argue applies to a large range of perfectly ordinary literary, serious and popular works, the point about Hollywood Wives, Justice O'Connor, is not for us to wrangle about whether it is covered or not, but if Hollywood Wives is covered, then there are hundreds of ordinary best sellers, potboilers of every sort that are covered here, and in a sense they ought to be covered.

That is to say, there are a lot of books that we do not want the bookseller to sell to a 12-year-old, and the vice of this statute is, if you don't want it sold to a 12-year-old, you have got to remove it from the shelf.

Unidentified Justice: Well, you concede that the statute, the old statute that prohibited selling the items to juveniles is constitutional--

Mr. Bator: Yes.

Unidentified Justice: --Yet surely that is a burden on the bookstore owner.

Mr. Bator: It does put a burden on the bookstore--

Unidentified Justice: Now, why is it a substantially different burden to say you won't allow juveniles to peruse the material that you can't sell to them?

Mr. Bator: --We have two answers to that, Justice O'Connor.

We think that the burden on the bookseller in the case of the display statute is more onerous, because you have to do this advance screening of the whole inventory, but the really important point is that complying with the burden in the display context is much more dangerous to the First Amendment because it restricts the access of adults.

Complying with the burden with respect to sales has no impact on adults at all.

But if you remove a book from the shelf, the easily accessible shelf, because you are afraid of a kid coming upon it, you have also removed it from the adult.

There is another point I would like--

Unidentified Justice: May I ask you a question, Mr. Bator?

Does your argument really focus on the fact that the statute applies to written material as opposed to pictorial material, you know, the magazines such as Hustler and so forth--

Mr. Bator: --The statute does apply to both.

Unidentified Justice: --I understand it does apply to both.

Would you have any objection, or does your proof support any objection to a statute which just excluded the written material?

Mr. Bator: Well, Your Honor, that would be a more difficult case, and it is not our case, and I would hope very much that the Court would not on this record and with these briefs try to answer that question.

Our position would, however, be, if you push me to the corner of saying, that the Court's cases do not support and the First Amendment should not support a lesser protection for pictures than for text, but that's--

Unidentified Justice: You would say even if the statute were limited to magazines such as Hustler, assuming they are not obscene, and Playboy and the like, and those... you have a constitutional right to have those displayed publicly.

Mr. Bator: --Not a constitutional right to buy, but the access problem--

Unidentified Justice: But to display.

Mr. Bator: --I think is more difficult, but of course the important point here is that that is not what Virginia has done.

It seems to me we really have to focus on what Virginia has done.

Virginia should not be allowed to have it both ways.

That is, they have drafted a statute that at least from the perspective of the bookseller is sensibly and, as the District Court said, consensitively viewed as a broad statute that encompasses any material that has enough sex in it so you don't want it sold to a kid.

Now, they--

Unidentified Justice: I don't know how you can say that, Mr. Bator, unless you are talking about a bookseller, as some of your witnesses were, who hadn't read the statute.

If you read the statute, this covers very offensive material, but only very offensive material.

Mr. Bator: --I think, Justice O'Connor, they have read the statute, but when they were cross-examined, these were women who were not used to the business of tight cross examination at law, and when they were cross examined on detail, they were vague on the detail, but that is the real world.

That is how this statute is going to operate in the real world.

Unidentified Justice: Mr. Bator, may I follow up on Justice O'Connor's question about whether the statute would be all right if it merely prohibited permitting juveniles to browse as opposed to requiring you to segregate materials in a fashion so that it is impossible for them to browse?

Do we have any reason... is it clear that the statute requires any more than that?

If you look at the definition of unlawful act it says

"It shall be unlawful to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse. "

Now, "may" could well mean two things.

It could mean it is possible for them to do so or it could mean it is permitted for them to do so, so it may well be that all that is necessary under the statute is a sign in the store that says juveniles not permitted to browse.

Mr. Bator: Well, Your Honor, I don't think a sensible bookseller in the local community faced with the possibility of local police and local prosecutors would read the statute that way.

The statute prescribes display.

It says any display.

Unidentified Justice: The statute also has a definition of "knowingly" which seems to suggest, and knowingly, it says "knowing display", the definition of "knowingly" says that you have to know or have reason to know the age of the juvenile.

Now, that suggests that there has to be some concrete occasion in which the juvenile is being allowed to browse, and you have reason to know what his age is.

Isn't that a permissible reading?

Mr. Bator: We read the "knowingly" in light of his definition again in the Virginia statute.

I think the bookseller can't just sit back and say I don't know anything.

I think what they have to do is make a good faith effort to comply, and compliance here means compliance with rules about display that may give access to juveniles.

Now, if the statute... we are constantly dealing a little bit here with two possible statutes.

I would really like to say that Virginia can't and shouldn't be allowed to have it both ways.

That is what they do is, they draft a statute that is broad enough so that the bookseller is under pressure to self-censor and to comply broadly.

And then the Attorney General comes in here and says, oh, no, no, no, this statute is--

Unidentified Justice: Well, did you object to a motion to abstain in the District Court?

Mr. Bator: --There was, Your Honor.

The District Court found it is not an appropriate case for abstaining.

Unidentified Justice: Did you oppose the motion--

Mr. Bator: Yes.

Unidentified Justice: --of the state to abstain?

Mr. Bator: Yes, we have not in any way agreed that... in fact, we do not think the law would permit abstention here.

Now, the Attorney General did not--

Unidentified Justice: Well, certainly you could have gotten a conclusive construction of the statute by abstention, a statute which we are now arguing about the meaning of.

Mr. Bator: --There is no readily available narrowing construction here.

The Attorney General has not come up with a standard here.

Unidentified Justice: Well, may I ask, Mr. Bator, does Virginia have a certification procedure?

Mr. Bator: It does, yes.

Unidentified Justice: Was any effort made to ask the District Judge to resort to that?

Mr. Bator: We do not think that there would be a meaningful question that could be certified.

Unidentified Justice: As to definition as to what the statute meant?

Mr. Bator: We don't think a meaningful question could be certified on that because the Attorney General himself has not come up with an intelligible standard.

I mean, what he said is miniscule.

Unidentified Justice: But in any event--

Mr. Bator: I beg your pardon?

Unidentified Justice: --no motion was made to the District Court to certify.

Mr. Bator: In the District Court there was a motion made.

We opposed it.

I don't--

Unidentified Justice: To certify?

To certify?

Mr. Bator: --Oh, no motion to certify, just to abstain.

Now, I think the abstention point was abandoned in the Court of Appeals.

The Court of Appeals did not pursue it.

And I don't think it was pursued in any question to this Court.

We did brief the question because we thought that it was an important problem in the case.

Whether the Court should say, well, let's wait and see, somehow see what the state courts say, but we think that would be inappropriate.

The bookseller can't wait and see.

The bookseller has to comply now.

And the fundamental problem is that this so-called miniscule construction has really no content.

That is, the Attorney General has not come up with an intelligible standard for what this so-called narrow construction is.

The Court's cases--

Unidentified Justice: Well, isn't it just to apply the definitions as they are written in the statute for what is harmful to juveniles?

That is pretty narrow.

Mr. Bator: --No, we read that as being very broad, and the District Court and the Court of Appeals read it as being broad, and it would be really unprecedented for this Court to reverse two courts on that issue of state law.

That would be quite an unprecedented thing for the Court to do, is to reverse two courts on the meaning of a state statute on which they have agreed.

I want to finish one thought if I--

Unidentified Justice: Excuse me, Mr. Bator.

Where do the courts describe the meaning of it?

Where do they describe the meaning of it, that we would be reversing their description of the meaning of the state law?

Mr. Bator: --Well, I--

Unidentified Justice: As opposed to just saying it covers 40 percent of all books--

Mr. Bator: --I think their understanding of the meaning of the statute is implicit in what they understood the impact of the statute to be, that is, it is implicit in their description of what this statute does to the ordinary bookshop under the threat of prosecution and punishment by the local police and local prosecutor.

I mean, what we... it seems to us that there is one thought I have been trying to get out that I would like to get out here, that we are talking about the First Amendment.

We are talking about the Butler rule, which places a very serious rule against the state in doing things that can have an impact on adults.

Now, Virginia passes this broad statute which the consensus of the testimony and the finding of the District Court and the Court of Appeals places a substantial burden on adults.

Now, the Attorney General comes in here and says, no, no, this statute is a paper tiger.

I don't think that counts as the kind of narrowing construction that this Court said can save an overly broad statute.

That is what this Court should not do, is allow the statute to be reinterpreted on the... because the Attorney General comes in here and sort of says, well, we are not going to enforce this statute against any respectable bookshop.

Anyway, it is not the Attorney General who enforces the criminal law of Virginia, it is the local Commonwealth Attorneys.

This statute places a serious burden of self-censorship on the bookshops, and complying with that burden we feel will place a very substantial inhibition on what grown-ups have always done, freely go to a bookshop, browse in the bookshop, and decide what they want to read, decide what they want to buy, and that impact on adults, which doesn't exist at all in a sales situation we think is the fundamental vice of this statute.

Self-censorship leading to an access burden on adults is what makes this statute unconstitutional under the First Amendment.

Like the battered hockey goalie, I will now retire unless there are questions.

Unidentified Justice: --Before the goalie retires, may I ask this question?

I have been thinking, as Justice Brennan apparently suggested, about the possibility of certification.

Are there three or four works that are identified in the record with respect to which the two of you disagree as to whether they are covered by the statute?

Mr. Bator: I am sorry, Justice Stevens.

You will have to--

Unidentified Justice: Are there two or three specific works of literature as to which you think the statute covers and your opponent says it doesn't cover with respect to which we could ask the Virginia Supreme Court whether it covers?

Mr. Bator: --I suppose you could frame an abstention or a certification based on one or two or three books.

Unidentified Justice: Do you know of any such examples that come to mind that sort of test what the breadth of the statute would be?

Mr. Bator: I suppose that there is a disagreement about Portnoy's Complaint, which is not a book I would like to have sold to a 12-year-old, and which I think is clearly covered, and I guess the Attorney General says today that it is not covered, but suppose... suppose the Virginia Supreme Court tells us it is covered or not covered.

Is that the kind of intelligible narrowing construction of the statute?

That is to say, it is a single book, and this Court's cases make it very clear that a whole series of litigations to narrow a statute are not sufficient.

There has to be a quick cure.

Unidentified Justice: Well, Mr. Bator, would it make a difference if the Court said the statute was complied with if the bookstore owner just said juveniles were not permitted to browse?

Would that make a difference?

Mr. Bator: Well, it would make a difference, but we do not think it would save the statute.

Unidentified Justice: So that is a certifiable question.

Mr. Bator: We do not think it would save the statute, Your Honor.

First of all, juveniles also have a constitutional right of access to books.

I mean, that is a major problem.

Unidentified Justice: But they don't have a right of access to books that are harmful to minors within the meaning of this definition, do they?

Mr. Bator: So again what you would have to do is, you would have to reorganize the entire display of the bookshop and you would have books that are for everybody, and some just for kids, and just some for adults, and we think that that would produce a major change in the First Amendment spirit of how bookstores are run.

Chief Justice William H. Rehnquist: Thank you, Mr. Bator.

Mr. Smith, you have six minutes remaining.

ORAL ARGUMENT OF RICHARD BAIN SMITH, ESQUIRE ON BEHALF OF THE APPELLANT -- REBUTTAL

Richard Bain Smith: Mr. Chief Justice, I will not take it all.

The reason we didn't ask to have this case certified below was because this Court now has a tool that neither the District Court had nor the Fourth Circuit had.

Virginia's certification procedure only became effective April of this year.

There was no certification procedure available.

Unidentified Justice: That is effective for this Court now, Mr. Smith?

Richard Bain Smith: We would certainly say it is.

Yes, sir.

It is effective... it was effective April 1st, 1987.

It is Rule 5:42 of the Rules of the Supreme Court of Virginia.

It is very comprehensive, and, Justice Stevens, I won't ask that just we agree on four exhibits be sent back, you send every exhibit that the plaintiffs put into evidence below, and I will take the same position before the Supreme Court of Virginia that I am taking here that not one of those falls within the statute.

Unidentified Justice: Specifically Portnoy's Complaint.

Richard Bain Smith: Portnoy's Complaint was not an exhibit.

Unidentified Justice: Are you familiar with the book?

Richard Bain Smith: Yes.

That is not covered.

Unidentified Justice: That is not covered.

Richard Bain Smith: That is not covered.

Unidentified Justice: So you do have a square disagreement on that.

Let me ask you another... may I ask you another question--

Richard Bain Smith: Certainly.

Unidentified Justice: --on the meaning of the statute?

In the definition of harmful to juveniles... I had it in front of me a minute ago... the last subparagraph is on A42 of the jurisdictional statement... has a subparagraph C,

"is, when taken as a whole, lacking in serious literary, artistic, political. "

and so forth, "value", but the introduction of that paragraph says

"quality of any description or representation in whatever form. "

Now, my question is, supposing you have a ten-chapter book, one chapter of which would satisfy the statute.

Does the book satisfy the statute or not?

Richard Bain Smith: Justice Stevens--

Unidentified Justice: The book as a whole.

Richard Bain Smith: --if you would look at Section 18.2-391, which is not the definitional statute but the actual statute under... it is paragraph 2.

It starts off, it says, "Any book, pamphlet"--

Unidentified Justice: I understand.

Richard Bain Smith: --The last line of that answers the question.

Not only must be harmful to juveniles, it has to be taken... the book has to be taken as a whole, just as with this case you cannot pull isolated passages out.

Unidentified Justice: I understand that Paragraph 2 does, but the definition of "harmful to juveniles" does not.

It is only because of the additional language in Paragraph 2 that you answered my ten-chapter book the way you do.

Richard Bain Smith: Well, if one chapter is obscene, and then the other nine... or obscene for juveniles, and the other nine chapters are fine for juveniles, would that book fall within it?

No, sir.

Unidentified Justice: It wouldn't fall within... that wasn't my question.

It wouldn't fall within subparagraph 2 of 391, but it would fall within the definition of subparagraph 6 of 390, would it not?

Richard Bain Smith: That is where... the reason hat is where it becomes important to look at that... what I just--

Unidentified Justice: I understand.

Richard Bain Smith: --the part I pointed you to, because that is dealing with books.

If we are talking about just a picture, then the picture in itself is as a whole, but that is why they added in again, taking... in other words, you have got... with respect to books, you have got two taken as a wholes.

Not only you have taken as a whole as far as harmful to juveniles, but the book as itself has to be taken as a whole.

Unidentified Justice: Let me be sure.

If I merely had the definition of harmful to juveniles, the chapter we speak of would be harmful, the book as a whole would not, but you are saying 391 would not apply to that because of subparagraph 2 to that ten-chapter work?

Richard Bain Smith: I don't think it would under either way, and the reason I say that is, this is the Virginia version of Miller versus California as it relates to juveniles, and the entire work has to be taken as a whole.

You can't pull an isolated passage out of the book, and that has been this Court's jurisprudence for 30 years, and that is what the Virginia Supreme Court has always followed.

You can't have a book that has... and that is what happened below.

They would... some of the exhibits there would be a vivid description of a rape in three pages out of 700 pages, and that doesn't make it fall within the statute.

Unidentified Justice: I am not going to ask you to debate it with me.

I am just trying to ask your understanding.

Richard Bain Smith: I understand, and--

Unidentified Justice: If Chapter... subparagraph 2 were not in Section 391, and we were merely dealing with section 390, which I gather is the definition that existed before the recent amendment, would my example of a ten-chapter book containing one sexually explicit chapter that would follow the definition, would that book, work as a whole in your view be harmful to juveniles within that section?

Richard Bain Smith: --No, and perhaps the easiest... or the reason for it is that under Virginia law this is a criminal statute, and has to be strictly construed against the Commonwealth.

In any type of disagreement like that, the state loses.

Unidentified Justice: Thank you.

Mr. Smith, suppose a bookseller does not segregate books.

Would he be able to comply with the Virginia statute by simply saying, whenever I see a juvenile, a person who looks to me like a juvenile, browsing in a book which is a book that I ought to know falls within this statute, I stop that juvenile and ask him to leave the store.

That is my store policy.

Would that be enough to comply with the statute?

Richard Bain Smith: Yes, sir.

As a matter of fact, that exact example took place in this case.

One of the bookstore owners said that she had some material that she thought might be adult material, and she said,

"But I keep it on a shelf next to my counter, where I keep an eye on it so juveniles can't get to it. "

Of course that complies, because the state has to prove that she syinterly... we have to prove that she knowingly violated the statute.

Unidentified Justice: Well, I am not talking so much about knowingly as I am talking about the language

"display for a commercial purpose in a manner whereby juveniles may examine and peruse. "

"May"--

Richard Bain Smith: Because I think--

Unidentified Justice: --"May" means it is possible for them to do so or they are permitted to do so.

Richard Bain Smith: --This Court had a case which I have cited in my brief called the Foreign Products Case, and that case said that when used in a statute as this "May" is used, it can... mean might or it can mean reasonable certainty or it can mean actual tendency under Virginia law, since it has to be strictly construed against the Commonwealth, it has to be what you have suggested, and it would qualify.

Chief Justice William H. Rehnquist: Thank you, Mr. Smith.

The case is submitted.

Attribution:

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Simon v. Eastern Ky. Welfare Rights Org. - Oral Argument

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Case:

Simon v. Eastern Ky. Welfare Rights Org.

Media File:

74-1124_19751210-argument.mp3

Related Transcript:

74-1124_19751210-argument

Transcript:

Argument of Marilyn G. Rose

Chief Justice Warren E. Burger: At 1:00 pm, we will hear 74-1110.

Ms. Rose, you may proceed whenever you are ready.

Ms Marilyn G. Rose: Thank you, Mr. Chief Justice, and may it please the Court.

I am Marilyn Rose.

I represent the plaintiffs, petitioners in number 74-1110 and respondents in number 74-1124.

This case involves the legality of a Revenue Ruling, issued by the Internal Revenue Service in 1969.

This Revenue Ruling removed the long standing, decades old, free service requirement, which had always been required of charitable hospitals.

There was no notice given to anyone when this Ruling issued.

There was no opportunity given to anyone, to public at large or affected persons to comment upon it or to participate in its development.

The Ruling on its face relied solely upon statements in treatise writer for the law of trust that health per se is charitable.

Justice Potter Stewart: May I ask, Ms. Rose?

Is it not what you have told us about no hearing and no notice always true about the rulings of this kind?

Has it not historically always been true?

Ms Marilyn G. Rose: Well, when the Internal Revenue Service issues Revenue Rulings, they give no notice and opportunity for comment.

One of the issues is should this have been a Revenue Ruling?

Justice Potter Stewart: Yes, and whether or not the other rulings were rulings of this kind, that is what the question is.

Ms Marilyn G. Rose: Yes.

There were three substantive violations which plaintiffs charge from defendants.

First and foremost, plaintiffs charge that defendants exceeded their statutory authority and in affect amended the Internal Revenue Code when they permitted hospitals as charitable institutions to limit themselves to serving only the paying public.

If the Court decides this issue against plaintiffs, then our second issue is that this indeed, though it was called a Revenue Ruling, which should not have been a Revenue Ruling, it was a substantive rule and defendants were required to proceed in accordance with Section 553 of the Administrative Procedure Act.

Justice William H. Rehnquist: Ms. Rose, may I ask you a kind of a preliminary question as to how you plan to structure your argument?

Are you going to discuss a standing at the Anti-Injunction Act and sovereign immunity at the latter part of your argument?

Ms Marilyn G. Rose: Yes, Mr. Justice Rehnquist.

The, a third violation, and this again is if the Court rejects both our Internal Revenue Code and 553 Arguments, is that nevertheless there was a violation of Section 706 of the APA that this Ruling was arbitrary and capricious because the defendants would have to have considered factors which they did not consider in the face of the ruling.

And as Mr. Justice Rehnquist indicated, there are jurisdictional issues which the defendants have raised.

We believe these jurisdictional issues can be best considered and understood in context of the substantive issues, and for that reason we will address the substantive issues first.

Section 501 (c) (3) and 170 of the Internal Revenue Code has never accorded hospitals tax-exempt status or deduction to the donors to hospitals.

Unlike educational and religious institutions which have their own independent basis, hospitals have had to qualify as charitable institutions.

For decades, the IRS has required that these charitable hospitals provide either service exclusively to the poor or may provide service to all persons in the community, rich and poor alike, but they may not exclude the poor.

This is the consistent position of every Tax Court and Federal Court that has considered the issue in the past thirty-three years.

There is no case the defendants have cited where a hospital has been accorded 501 (c) (3) status, without there being a finding that a hospital gave free service.

This indeed is a similar position that IRS takes for all other organizations, which are eligible for these statutory benefits, solely by virtue of being charitable.

Every ruling which is cited in the defendant’s brief, every ruling which is cited in the amicus -- American Hospital Association’s brief, and every ruling which we have found and this goes to date till 1975, requires that Institutions which are solely charitable as distinct from being charitable and educational or religious or societies for the prevention of cruelty to children, also must serve all persons in the community rich and poor alike.

This is also the position of all state charitable cases or virtually all state charitable cases.

The defendants relied simply on a 30-year old statement from Scott on Trust.

In 1939 as of 1967, the Scott Treatise states that health is charitable per se, but all the cases that professor Scott cites, the tax cases and charitable trust cases, also have this rich and poor alike requirement.

Indeed the general law of charitable trust going back to England and more ancient times has always considered that there are four heads of the charity.

Charity is either for the relief of the poor, educational, religious, or there is a fourth head, and this fourth head of things beneficial to the community, but things beneficial to the community must provide service to all persons of the community, again rich and poor alike.

This beneficial to the community does not permit that the exclusion of the poor.

The defendants argue that the Treasury Regulation, which issued in 1959, permitted them to make this change; that is absolutely untrue.

The Treasury Regulation, which issued in 1959, is an expansion statement on what is the law on charitable, but it was brought in to include new purposes such as combating discrimination, juvenile delinquency.

But there is nothing on the face of the Ruling of the 1959 Regulation nor is there anything in its published history to indicate that there was a change and charitable organizations may serve only the paying public.

In 1969, the American Hospital Association appealed to Congress to make a change and give hospitals independent status.

This change was rejected, it was in the House Bill.

The Senate Finance Committee in October of 1969, considered the issue and the Senate Finance Committee deleted the House Amendment.

The statement for deleting this House Amendment took into account the fact that three weeks earlier, the Internal Revenue Service had issued to Revenue Ruling that is issue in this case.

But the Senate Finance Committee stated flatly that they were removing this provision, that the Revenue Ruling in issue in this case did not conform to the Internal Revenue Code, and they want to consider the proposal in context that is implications on health legislation.

I think it is clear that the Congress need not conform the statute to an administrative action, but administrators are bound to conform their actions to a legislative enactment.

The Court below recognized the judicial, administrative and legislative history are discussed, but they went further.

They said that this need not always be the case, that defendants could take into account socio-economic changes.

They also made a statement, that the so-called requirement of emergency service in the Revenue Ruling, maybe of greater beneficial value to the poor than general hospital services, including in-patient here.

That -- those socio-economic findings are legally infirm.

There is nothing on the face of the Revenue Ruling to indicate whatsoever that any of these matters were taken into account by defendants.

The Appellate counsel in this case in the Court of Appeals below, and in the Supreme Court, is making this proffering, this argument, but that is -- should be rejected as the Court of Appeal’s decision should be rejected.

I think there are many cases of this Court that have stated flatly, that the post-talk rationalization of Appellate counsel cannot substitute for the reason that the Administrative Agency used.

And the Administrative Agency used solely Scott on Trust, and Scott in Trust has said the same thing, I had this one sentence upon which they rely since 1939.

And in 1939 and through the 1940s, and through the 1950s, and through the 1960s, ye, in the summer of 1969 Internal Revenue Service was still going at the hospitals that refused to serve the poor and poor have to be served.

It is also factually infirm because of the limitations of time, I will not go into all the details.

Our brief in Chief, and the brief of the American Public Health Association extensively discussed as why it is factually infirm.

In some, HEW, which is the health expert agency in this country finds there are over twenty-three million people in this country with incomes of below the poverty guidelines, and at that time the poverty guidelines was something like $4,400 a year for a family of four.

That these upwards of twenty-three million people have neither private not public health insurance, and when we say that we are including Medicaid; Medicaid is a very limited program in terms of eligibility for income and services, it does not take care of the poor.

The health policy of the United States has continued to require the free service be given.

The Halliburton program of HEW requires a free service be given.

Title XVI of the new Health Planning Act, December 1974, Congress specifically said that until there is -- there will be a national, or if there will be national health insurance program there is still a need to serve everyone of the community to serve the poor.

The defendants have made a large argument that this Ruling does not deprive from the service to the poor that there is an emergency room requirement in the Ruling.

We disagree in several respects.

First, they argue as if the emergency room has now become like a private doctor’s office.

General physician services do not exist in emergency room.

The Ruling, secondly on its face talks not about general emergency room services, it talks about a dire emergency and that a hospital cannot turn away somebody in a dire emergency.

And thirdly, there is no requirement that people not be charged.

The most they can say for this Ruling is that people will not be required to put up money upfront to pay a pre-service admission if they come into an emergency room, they are in a dire emergency, maybe bleeding to death, there is no free service requirement.

Turning now to our Section 553 of the APA argument, which this Court need not reach if they accept our primary argument.

The Internal Revenue Service does not deny that it is an Agency subject to 553 and it cannot make such a denial.

It says this Ruling was interpretive.

We say that the Internal Revenue Service is mislabeling this Ruling.

This Ruling on its face has to be substantive.

In our principal brief, we have come up with what I would call a functional test, that the lower federal courts have increasing in recent areas looked behind the label and have said, is the rule a policy of an agency, general long standing, is it a revision of a long standing rule.

Is there a need for an agency to expedite -- to educate itself?

What is the impact upon an industry?

What is the impact upon the public?

In everyone of these cases, here is a major revision done without notice, without an opportunity for comment by an agency that knows virtually nothing about healthcare, ignoring what the healthcare agency of United States is doing, let alone what organizations like the American Public Health Association would do.

Chief Justice Warren E. Burger: Do they know of nothing about healthcare, now do we know more about it?

Ms Marilyn G. Rose: Well I do not think, I would Mr. Chief Justice, that I do not know if this Court knows more about it but -- and I also do not know if the Court of Appeals might know more about it, but these on -- what the Court of Appeals did is they made findings, they made findings without a record.

They have reached out and sustained this Ruling in the same way as if there was an attack on congressional statute for being unconstitutional.

The fact is this the Court of Appeals should have looked simply as to what reason that was used by the Agency, Scott on Trust.

If they did not looked at that, they have reached out and made socio-economic analysis, they were going beyond their power and or their -- so, with all this Court I think what this argument has to determine is that this is the kind of thing, there should have been hearing on.

The alternatively if the Court finds -- feels a definitial test is the proper one, an interpretive rule is one that is limited to determination of congressional purpose.

A substantive rule is one which augments congressional purpose and goes beyond the statute, it goes outside the statute.

In this test too, this is a substantive rule.

I will not go into our alternative Section 706 of the APA argument.

I think it is clear that the only way the defendants feel that the Ruling could be sustained is they had to make the socio-economic argument.

It is not on the rule -- it is not on the face of the rule.

The Agency did not consider it, and therefore, all relevant were not conceded and as citizens to preserve over to the park all over again.

I would like to turn to the jurisdictional arguments that defendants have proffered.

Defendants have not come up with what is a variety of jurisdictional barriers to plaintiffs sustaining -- maintaining this cause.

Their first argument is an attack upon the rules laid down by this court in Abbot Laboratories and all other cases like it.

It is an attack upon the presumptive reviewability of agency action.

I do not think that the IRS intended to attack that for any other agency of government, but itself.

It says it is somehow different, but it has proffered no justification for making the Internal Revenue Service different from any other governmental agency.

Justice William H. Rehnquist: Well, how about, you say very little in your reply brief about our decision last spring in Warth against Seldin.

Now, do you not think that has some bearing on the case?

Ms Marilyn G. Rose: Yes, and I will -- if you like I will turn to Warth v. Seldin now, Your Honor, Mr. Justice Rehnquist.

Warth v. Seldin of course raises the question of standing to sue.

Plaintiffs are poor people who were denied healthcare, denied admission to hospitals by hospitals, which have been given 501 (c) (3) status.

And (Voice Overlap)

Justice William H. Rehnquist: Yours is kind of a house-of-jack bill type of causation.

The same is Warth as I see it, where it is not just a direct causation, but it is, if (a) had not done this, then (b) would have done this, then (c) would have done that and my people would have been okay.

It is a fairly attenuated kind of standing, is it not?

Ms Marilyn G. Rose: Mr. Justice Rehnquist, I disagree.

In Warth v. Seldin, in this Court found that the defendants there were not responsible for the inability of those people to find housing in Penfield, it was the marketplace that was at fault.

In this case, there is a federal statute, the charitable provision of the code, which is intended by Congress to meliorate the conditions of the marketplace, and what plaintiffs have said is, government you have aggravated our rights under that statute, it is very different.

Justice William H. Rehnquist: Was that statute intended to confer any discreet rights on your clients?

Ms Marilyn G. Rose: Oh! Yes, absolutely.

Justice William H. Rehnquist: Well, what is your authority for that?

Ms Marilyn G. Rose: I think the whole history of the reason for the charitable provision of the code, just as the charity in the charitable trust --

Justice William H. Rehnquist: Has this -- go ahead.

Ms Marilyn G. Rose: In fact, the defendants in their Treasury Regulation, when they start off to finding what is charitable, they say principally for the relief of the poor.

Justice William H. Rehnquist: Has this Court ever entertained an action of this kind where is that the claimed beneficiaries of a tax deduction as attenuated in situation as yours?

What is the closest case and point from this Court which you --

Ms Marilyn G. Rose: From this Court, I do not know of any case from this Court, there are lower Courts --

Justice William H. Rehnquist: I do not either.

Ms Marilyn G. Rose: Yes, the whole -- in 1930s there is a House report on the reason for the charitable provisions of the code, it is to lessen the burdens of government.

This is a classic statement.

It goes back to the charitable law of charitable trust where the reason, it goes back 1601, that charitable trust started was to take care of certain things for that the government, otherwise it will be obligated to do and the hear of the poor was always the primary consideration.

I think our plaintiffs are clearly within the zone of interest.

Justice Byron R. White: Well, that -- would that be in existent or without the letter from the Revenue Service, would these hospitals have served the poor?

Ms Marilyn G. Rose: Well, if, truly -- well, Your Honor, if the --

Justice Byron R. White: Suppose a hospital’s exemption have been revoked for failing to serve the poor --

Ms Marilyn G. Rose: Well, if a hospital --

Justice Byron R. White: How would that have helped you?

Ms Marilyn G. Rose: Well, well we are not seeking, this gets of course into the Americans, United and Bob Jones issues, we are not seeking whatsoever to have anything revoked with, except --

Justice Byron R. White: I understand that, I understand that.

Ms Marilyn G. Rose: If a hospital --

Justice Byron R. White: But you are saying -- you are saying that the modification of the rule permits the exemption despite the failure to serve charities?

Ms Marilyn G. Rose: Well, let me turn this around --

Justice Byron R. White: And if these hospitals have not served charities, they are, under the prior rule, their letters would have been revoked?

Ms Marilyn G. Rose: We presume that when the -- all through the years the Internal Revenue Service required service to the poor and hospitals would deem to be charitable, that they were obeying the law, the entire Internal Revenue Code --

Justice Byron R. White: But they were not required to do it?

They were not required under the law to do it?

It is just if they wanted to be a tax exempt, they did it?

Ms Marilyn G. Rose: If they wanted to be tax --

Justice Byron R. White: They did not break any law if they did not serve the poor?

Ms Marilyn G. Rose: If hospitals wanted to lose their tax exemption, but -- but that is mere -- that is a great degree of speculation.

There were thirty -- there are thirty-five hundred hospitals --

Justice Byron R. White: Upon whose side --?

Ms Marilyn G. Rose: Mr. Justice White, hospitals are tax-exempt, they not --

Justice Byron R. White: These days when the profit and loss statements of hospitals looks like different than they used to?

Ms Marilyn G. Rose: Well, Your Honor, may I state several different responses to that.

First, they would not only lose the power of how it be tax-exempt, but they would lose the contributions to them, and 60% of the construction money going into hospitals today is from charitable donations.

The American Hospital Association goes up to the hill, they make the statement.

It is in -- the appendix, the speech of the testimony of the American Hospital Association that charitable contributions to hospitals are what keeps hospitals going.

It makes the marginal difference.

Further, as amicus of Jackson County, Missouri, has pointed out in its brief that states follow what the federal government does.

And if a hospital decided it would rather not serve the poor, it could not be -- it would lose its tax-exemption, it would be paying thousands -- hundreds of thousands of dollars of taxes every year on the property on which it sits.

Justice Byron R. White: Well, I just thought you ought to be making the standing argument.

Ms Marilyn G. Rose: Okay, okay.

The standing and basically is -- the proposition is that poor, and I think in way, I have probably answered most of the standing argument.

We think Warth v. Seldin is not pertinent.

We think because this particular provision was designed to meliorate the conditions of the poor and it is the obligation of that statute that hospitals are not about to give up their tax-exempt status.

And three, the other, the last argument the government raised, well, I think they raised at first is this is prosecutorial and this is not prosecutorial, we are not seeking the prosecution of anybody.

We are seeking a revocation of a Ruling and the order of the District Court with which we would like reinstated is that this Ruling was invalid, hospitals have to give free service and that the notification be made to the public.

The Internal Revenue Service publishes its cumulative bulletin, and if hospitals in the future did not want to give free service, they could elect to be pulled-off that list, but until they are pulled-off the list, the public relies --

Justice William H. Rehnquist: How about immunity and the Anti-Injunction Act, you have come to those?

Ms Marilyn G. Rose: We -- the Anti-Injunction Act and the declaratory judgment provision are not pertinent.

This is not a case involving the assessment of collection of taxes of either the poor people themselves or of anybody else.

There is no other alternative for these people.

It is not a refund suit.

This is not like Americans, United trying to protect their contributors.

This has nothing to do whatsoever with the assessment.

And sovereign immunity, we believe has long been overruled in most respects, the government is arguing it that under Larson, this case is one exceeding statutory authority and this is clearly what the case is about.

Justice William H. Rehnquist: We do not rely on Scan, well, then you simply rely on Larson?

Ms Marilyn G. Rose: No we have the alternatives, if you dwell on Larson, if you find for some reason that the Larson does not apply them we are relying on Scamwel (ph) --

Justice William H. Rehnquist: Which is not a case in this Court.

Ms Marilyn G. Rose: No, the, it is the Court below, but basically we are saying that for cases that are APA cases, sovereign immunity no longer exists.

This does not mean there is not a sovereign immunity argument on property cases, damage cases, property held in the name of the United States, there is a still sovereign immunity argument, it just does not exist anymore, or Abbott Laboratories, Parlow (ph), Collins, and Data Processing are all overruled.

I think will save, thank you.

Chief Justice Warren E. Burger: Mr. Smith.

Argument of Stuart A. Smith

Mr. Stuart A. Smith: Mr. Chief Justice and may it please the Court.

The government’s position in this case simply is that published Revenue Rulings, such as the Revenue Ruling at issue here, do not present any issue for a Federal Court to review and in that holding to the contrary the decision of the Court of Appeals is erroneous.

And before discussing in detail, the various jurisdictional barriers that we think exist in this suit, I think it would be important for the Court to have before it what the essential nature of a Revenue Ruling is.

Because in our view that essential nature demonstrates that the jurisdictional holding of the District of Columbia Circuit in this case would require the Federal Courts to render judgments in the most abstract contexts.

Now, each year the Internal Revenue Service, pursuant to its statutory authority under Section 7805 of the code, issues some forty-thousand advanced letter rulings.

These advanced letter rulings set forth its opinion of the federal tax consequences of specific proposed transactions.

Justice Potter Stewart: And those are private --

Mr. Stuart A. Smith: And those are private.

Justice Potter Stewart: Sent to an individual, in response to an individual inquiry?

Mr. Stuart A. Smith: Exactly.

Justice Potter Stewart: And few of those are later published?

Mr. Stuart A. Smith: A few of those are later published anonymously.

And of those forty-thousand the service selects and edits several hundred for publication in its Internal Revenue Bulletin, in a more abstract and anonymous form.

Now, the introduction to the Internal Revenue Bulletin on the first page has long stated that such Rulings do not have the force and effect of law, but are informational in character only and represent the conclusion of the service as the application of the tax law to what is often an abbreviated set of facts.

Now, this Court in the Dixon case and many other cases has underscored and ratified that statement in a cumulative bulletin that these Rulings are simply guidelines for IRS personnel and to educate the public general, and it had --

Justice Potter Stewart: How are these disseminated and published --

Mr. Stuart A. Smith: Well, Mr. Justice Stewart --

Justice Potter Stewart: -- law officers have reached --

Mr. Stuart A. Smith: Every two weeks the Internal Revenue Service I think publishes a, something called the Internal Revenue Bulletin, and then every six months or so those are bound in what is known a cumulative bulletin, and those are distributed to people, officers of the Internal Revenue Service and people generally who are interested in the development of the tax law.

Justice Potter Stewart: And private tax lawyers can subscribe to it --

Mr. Stuart A. Smith: Private tax lawyers can subscribe, exactly and indeed anyone can subscribe (Voice Overlap)

Justice Potter Stewart: You pay a fee and you get it directly from the Internal Revenue Service?

Mr. Stuart A. Smith: Yes.

Now, these Rulings contribute to have a salutary aim.

They contribute to uniformity of interpretation because as I think the Court is well aware, it would be unfortunate of it two Revenue Agents in different districts were to apply the tax lax law according to their best likes but coming out with a different results on what is an identical set of facts.

So --

Chief Justice Warren E. Burger: And they do that occasionally in spite of the bulletin --

Mr. Stuart A. Smith: Mr. Chief Justice, we try our best, the Internal Revenue Service tries its best, but often mistakes are made.

Chief Justice Warren E. Burger: Have a lot of them to deal with?

Mr. Stuart A. Smith: Yes, and that these Internal -- -this Revenue Rulings are an attempt to mitigate and minimize those unfortunate instances.

In any event, these Revenue Rulings, these contribute to uniformity of interpretation and in our view contribute to the stability of the tax law by reducing controversies between the Internal Revenue Service and taxpayers because as I think the Court is well aware, taxpayers, many taxpayers do not like to litigate with the Internal Revenue Service.

They would prefer to have an advance notice of what its position might be on a particular set of facts, and this educational program increases stability and reduces litigation and the intended burdens on the Federal Courts.

Now, the format of the Ruling, of a Revenue Ruling is essentially a statement of facts and it is often abbreviated with a brief conclusion as to what the federal tax consequences of those facts are.

And the important thing is that the Internal Revenue Service does abbreviate a Revenue -- the facts in publishing a Revenue Ruling, because when a taxpayer makes a submission to the Internal Revenue Service, he makes a submission with a voluminous statement of facts.

But the Internal Revenue Service when it -- if it may select this particular letter ruling for publication, it will boil this down and essentially present the statement of facts which is designed to illustrate a particular legal principle that it feels as of general interest.

Justice Harry A. Blackmun: Is it not the, is it still true today as I think it was a hundred years ago (Inaudible) a revenue rule is maybe with an exception or two about the lowest form of animal life in the formal weight of the rulings --

Mr. Stuart A. Smith: I think that so, Mr. Justice Blackmun.

The Courts, of course this get into the argument about notice and hearing requirements, but they are not binding on the Courts.

In fact there are scores of cases which hold that it is simply a statement of what the Internal Revenue Service thinks the law is.

Justice Harry A. Blackmun: I know, we always hopefully look for a TD or something of a little --

Mr. Stuart A. Smith: Oh! Absolutely, that is a higher from of tax life, there is no doubt about that.

Justice Potter Stewart: And the one we are talking about here appears begins on 6A of the appendix to your brief, is it not?

Mr. Stuart A. Smith: Exactly, that is Revenue Ruling 69-545.

Now, this Ruling itself demonstrates the hypothetical quality of what the plaintiffs are seeking -- or hypothetical quality of the relief they are seeking, because as the Court can readily see in perusing this Revenue Ruling, it sets forth two polar situations, situation one and situation two dealing with two hospitals, hospital (a) and hospital (b).

Hospital (a) there are variety of facts in connection with -- hospital (a) has an open Board of Trustees.

It gives open staff privileges.

It is involved in research and educational activities.

It maintains a full-time emergency room and no one requiring emergency care is denied treatment.

To the contrary, hospital (b) is almost proprietary in nature.

It is owned by a small group of doctors.

They limit the staff of privileges to people they know and they comprise the medical committee generally to keep out qualified physicians, so etcetera-etcetera and it does not have -- it maintains an emergency room, but basically to treat the patients of its own doctors.

Now, these two polar examples were designed to educate the public generally and hospital administrators as to clear-cut situations.

Hospital (a) is a situation, if you like hospital (a), you will be -- you will be fairly certain of exemption, but of course the Ruling does conclude that you cannot be certain of that itself.

You have got to yourself submit an application for exemption to the Internal Revenue Service.

If you like hospital (b), which is a polar example of hospital that does not seem to provide any community benefits.

It seems to be run pretty much strictly for the private inurnment of its owner-doctors.

In those situation -- in that situation you are not going to get a tax exempt status.

Now, the important thing, which we emphasize, is that the Ruling does not even begin to attempt to deal with the hundreds of gradations in between hospital (a) and hospital (b).

Hospital (a) assuming for a moment that -- that it does not treat people -- that does not give free care to the indigents on a broad scale, although let us say it dropped its emergency room requirement -- emergency room completely for let us say the particular example that it may be engaged in treating cancer patients or a particular kind of decease.

Under those circumstances an emergency room would be relatively -- would be superfluous because such a hospital would rarely have need for an emergency room or for example a consortium of hospitals in a particularly community could get together and one could say, we will have the emergency room, you have the nursing school, and the third --

Justice Byron R. White: Mr. Smith, you are not suggesting that the issuance of this Revenue Ruling, it was not a rather substantial event?

Mr. Stuart A. Smith: It was a substantial event, Mr. Justice White --

Justice Byron R. White: I mean the day before the law was not that hospital like that.

Hospital in type (a) would --

Mr. Stuart A. Smith: I do not -- I am not sure that is right, because although the plaintiffs cite many cases for the preposition that the pre-care requirement was an absolute requirement, there is no reported decision and I have found one and there is no instance that I know about the Internal Revenue Service --

Justice Byron R. White: But I take it you are arguing the case is though, even assuming that that was the case?

Mr. Stuart A. Smith: Even assuming that was the case, that there was --

Justice Byron R. White: That the Revenue Service at the moment it issued that ruling was then applying the Revenue laws completely different than it had before.

Now, you are arguing the case on that basis, are you not?

Mr. Stuart A. Smith: That is right.

Now, it seems --

Justice Potter Stewart: And in fact that was the understanding of the tax bar pretty much, was it not?

Mr. Stuart A. Smith: It was the understanding of the -- it was the understanding (Voice Overlap)

Justice Potter Stewart: (Voice Overlap)

Mr. Stuart A. Smith: Although quite frankly, I think if the decisions that the plaintiffs cite of the Court of Appeals indicate that there really is, there was no instance in which the Internal Revenue Service revoked the tax exemption of a hospital solely because they denied free care to the indigent.

Justice Potter Stewart: May I ask, now that I have interrupted you, this involves the -- the tax benefit that a donor or a hospital as a donee or legatee as well as its hospitals own income, does it not --

Mr. Stuart A. Smith: That is right.

Justice Potter Stewart: Both (Voice Overlap)

Mr. Stuart A. Smith: That is right, the deductibility of contributions, or the state tax --

Justice Potter Stewart: They go together?

Mr. Stuart A. Smith: Yes, yes, they do.

Justice Potter Stewart: Thank you.

Mr. Stuart A. Smith: Now, given the fact that this Ruling that is under challenge here just presents these two hypothetical polar examples, I think it is important to point that if a particular hospital decided that it did not need an emergency room for a particular -- for particular reason because of its own mode of operation, it would not necessarily have been denied of tax exemption by the Internal Revenue Service, and that to us demonstrates the hypothetical quality of this suit because this Ruling came up, or was published on an abbreviated set of facts.

Hospital (a) indeed no other hospital is before this Court to present its own set of facts, and indeed each hospital continues to remain free to litigate its own right through exemption on its own facts.

Justice William H. Rehnquist: No hospitals were parties to this action at all?

Mr. Stuart A. Smith: No hospitals were parties to this action at all, Mr. Justice Rehnquist, and to us this demonstrates an important point --

Justice William H. Rehnquist: Well, do the government ever move to dismiss the action on the basis of failure to join indispensable party?

Mr. Stuart A. Smith: No we do not regard the hospital as an indispensable party within the technical meaning of the Federal Rules of Civil Procedure, but --

Justice William H. Rehnquist: Well, why do you not?

Mr. Stuart A. Smith: Well, simply because -- well, I do not think -- I think that if a hospital had been joined as a party, then I think we would essentially be faced here with whether a particular -- that particular hospital’s exemption should be -- should continue to stand on.

I think the important thing--

Justice William H. Rehnquist: Well, but now that-that -- that is not --

Justice Thurgood Marshall: (Voice Overlap) hurt is the hospital?

Mr. Stuart A. Smith: The only person that might get hurt -- the only entity that might get hurt is the hospital --

Justice Thurgood Marshall: And that does not make them a indispensable party?

Mr. Stuart A. Smith: It makes them an indispensable -- it makes them an indispensable party, but the jointer of one, two, three or indeed a dozen hospitals would not -- would not solve the tag -- would not create a broad rule, which would be applicable to the hospitals generally because each hospital continues to remain free to litigate its own right to an exemption on its own particular facts.

And to us that demonstrates that this suit really is tantamount to asking a Federal Court to render an advisory opinion, because if Federal Court says the emergency room requirement is no good, reinstate the old ruling, what would left -- what essentially you are left with is a pronouncement which has no pertinence to any particular hospital --

Justice Byron R. White: What you are saying is it is not a case of controversy?

Mr. Stuart A. Smith: Essentially, it is not -- it is not a concrete case, which wants a decision by a Federal Court.

Justice Potter Stewart: What motions did you file?

Mr. Stuart A. Smith: What did you say?

Justice Potter Stewart: What motions did you file, did you --

Mr. Stuart A. Smith: We filed the motion, essentially the position that we advance here was advanced in the lower courts, we moved to dismiss for a lack of standing, for because --

Justice Byron R. White: Because the state has cause of action --

Mr. Stuart A. Smith: -- state cause of action for that this suit comes within tax exemption of the Declaratory Judgment Act that is not appropriate for judicial resolution.

Essentially --

Justice Byron R. White: So you filed motions to dismiss, basically?

Mr. Stuart A. Smith: Yes and the District Court denied the motions to -- the motion to dismiss --

Justice Byron R. White: Then you filed a motion for judgment on the --

Mr. Stuart A. Smith: Yes.

Justice Byron R. White: -- for judgment?

Mr. Stuart A. Smith: Yes, and the District Court -- essentially the District Court decided that it had jurisdiction, held the Ruling invalid, and granted broad -- you know the broad declaratory relief that the plaintiffs seek.

The Court of Appeals held that the Federal Court had jurisdiction, but held the Ruling to be valid.

Justice William H. Rehnquist: Supposing the District Court had been affirmed by the Court of Appeals, would that have had financial consequences to hospitals?

Mr. Stuart A. Smith: It may had have financial consequences to some hospitals, but it is entirely unclear as to how many.

If any hospitals would have -- would have had -- would have been -- would have suffered detriment.

The point is that each hospital continues to remain free to litigate its own, its own right to a tax exemption.

Indeed in hospital (a) in this case, as the ruling demonstrates, was involved in education and research activities.

It may well be that if it decided to drop its emergency room, as I have said for one reason or another for because it was inappropriate to its activities, it still would have a right to an exemption and it could have pressed its case before the commissioner and before a federal court, either the tax court or a district court.

Justice William H. Rehnquist: So from the indispensable parties’ point of view, the only answer that would have been to enjoin to every single hospital that pays taxes in the country?

Mr. Stuart A. Smith: Exactly, and that to us demonstrates, you know, the hypothetical and abstract quality of this suit.

It does not attempt to solve anything of general import, and a revenue ruling does not attempt to solve anything of general import.

It simply a published statement on abbreviated facts of the Internal Revenue Service, boiled down which attempts to educate the public about general Internal Revenue Service positions.

Now, I think the point about joining every hospital in the country is important because essentially Congress has the determined that the tax jurisdiction of the Federal Courts is limited to deficiency suits and refund suits.

And the reason for that essentially, is because the Court’s cannot decide cases, much less tax cases, on anything but a full presentation of all the facts.

Here we have an abbreviated set of facts, and essentially for a court to render judgment about hospital (a) and other similarly situated hospitals may not in fact very many if any hospitals at all.

Justice Thurgood Marshall: Mr. Smith, one thing that is not clear to me, if this letter is declared out, what does it change if anything?

Mr. Stuart A. Smith: If this letter is declared out, it change -- I do not -- it change, it seems --

Justice Thurgood Marshall: What would it change, it would not change anything, would it?

Mr. Stuart A. Smith: It would not change a tax liability of any hospital.

Chief Justice Warren E. Burger: I suppose that is why you are saying it should have not -- no judgment would have entered in the first place?

Mr. Stuart A. Smith: Exactly, exactly, this is really an, you know, a request for an abstract decision on an abstract set of facts.

Justice William H. Rehnquist: Well but if, if it turns on your answer to Mr. Justice Marshall’s question, then if the ruling would have changed the liability of some hospital, would your answer then be different?

Mr. Stuart A. Smith: No, my answer would not be different, simply because as we have point out at great length in our brief, we do not think that third parties -- we do not think that the Internal Revenue Code confers a private right of action on non-taxpayers to contest the tax liability of any particular -- of any particular person.

And I think that is important here because I think essentially that is what -- that is what is lurking behind this suit.

The plaintiffs have said that this suit essentially, simply involves the editing and the rewriting of a Revenue Ruling of general application and they trust the system to alter hospital conduct.

Now, we -- taking that at face value I think that the simple answer to that is that really makes this an abstract case.

Simple because of the internal -- if they are not interested in Internal Revenue enforcement, with respect to any particular hospital or group of hospitals, then essentially they are asking the federal courts to rewrite Revenue Rulings which are the province -- which is the province of the commissioner where there may be no effect at all, or they proffer interest in that effect.

Justice Byron R. White: You would not let them into any suit at anything with respect to whether a hospital was exempt or not?

Mr. Stuart A. Smith: I would not let -- that is right, we do not think --

Justice Byron R. White: So that this particular group or poor people generally who would like free service cannot litigate, as far as you are concerned, the exemption or non-exemption of hospitals?

Mr. Stuart A. Smith: Exactly, anymore than (a) cannot litigate the propriety of a ruling given to (b) if he does like (b) if he thinks (b) is a competitor of his, if he thinks that for one abstract reason or another that the Ruling was incorrect.

The Internal Revenue simply does not confer private rights of action on citizens generally to challenge the packs consequences that the Internal Revenue Service conferred on a private party.

I think that is -- I think that is absolutely well settled.

I think that the Court if there is a decision, which is in point on this -- of this Court, it seems to us that it is Louisiana versus McAdoo, which the plaintiffs here had dismissed as overruled.

That decision has not been overruled, there the State of Louisiana, which was itself engaged in the production of sugar, brought a suit against the -- filed a motion for leave to file a bill of complaint in this court in an original action to force the Secretary of the Treasury to increase the quotas, the duties on imported sugar.

It as a producer of domestic sugar felt pampered and fina -- that -- that, those Rulings were operated to its financial determent, and the Court simply said that that kind of action, it dismissed it without considering the merits, would operate and disturb the whole revenue system of the government, and that the Court’s role in such a case would be to interfere with the very function of government.

And if another decision which we think is virtually on point is the Dorsheimer case which was rendered by this Court over --

Justice Byron R. White: Can anybody, can any person that you know of challenge the, an exemption letter?

I am sure if you cancel one, the fellow who letter has canceled can litigate with you, but how about the other way?

Mr. Stuart A. Smith: No.

Justice Byron R. White: So that if you want to grant an exemption letter, whether it conforms to the statute or not you are home free?

Mr. Stuart A. Smith: Well, Mr. Justice White --

Justice Byron R. White: No, yes or no, is the (Voice Overlap)

Mr. Stuart A. Smith: The answer is yes, but the -- but that has been a decision of Congress to confer this, the power to administer the tax laws and the commissioner of Internal Revenue, and --

Chief Justice Warren E. Burger: Some Congressman becomes aware of this, gets exited or not he could embark on some kind of an investigation or inquiry, could he not?

Mr. Stuart A. Smith: Indeed, Mr. Chief Justice, a simple letter to the Internal Revenue Service, I have found by member of Congress elicited a very prompt response.

Chief Justice Warren E. Burger: And if it does not then they can go on with congressional inquiry?

Mr. Stuart A. Smith: Absolutely, and they can enact legislation.

And if particular public officials have acted in a way that the Congress thinks is improper, the Congress can seek to call in before investigating committees, indeed you know recent --

Chief Justice Warren E. Burger: They do not sometimes, do they not?

Mr. Stuart A. Smith: They do that, in fact the present incumbent commissioner of Internal Revenue has been before Congress some twenty-nine times in the last year.

Congress has exhibited a very detailed interest in both substantive tax law and in the administration of the revenue laws.

It seems to us there was just some things that the Courts do not get into, and one of them is the administration of the tax laws as the commissioner sees fit.

This to us dates back to the Second Congress when -- when in 1792, Congress enacted a provision saying that the Secretary of the Treasury shall enact, shall direct the collection of taxes, which were then internal taxes, as he shall judge best.

And that the present code follows through on that, grants a number wide discretionary powers to the Secretary of the Treasury and his delegate, the Commissioner of Internal Revenue, to publish rules, make assessments, bring civil actions and those -- that authority is explicitly and solely conferred in these public officials.

The Internal Revenue code does not confer any private rights of action in those -- in those cases.

And indeed, as I was saying, the Dorsheimer case, it seems to us is another case, which a hundred years ago this Court was faced with a situation where a collector of the Internal Revenue and they -- and two informants brought a suit against the United States urging that the Secretary of the Treasury improperly waived the penalty in a particular liquor tax violation case.

And they were indeed hurt because at that time, they had it then, they had an existing right to a -- to part of the -- part of the proceeds of the penalty.

They felt that they should -- that penalty should have been enforced and they would have gotten more money and the --

Chief Justice Warren E. Burger: Would the Dorsheimer case would go of on standing or on --place of controversy?

Mr. Stuart A. Smith: Mr. Chief Justice, it is very hard to know how that case went off.

The Court simply said with respect to the digression of the Commission -- of the Secretary of the Treasury it was the exercise of his discretion in matter and trusted to him alone, and from which there could be no appeal.

I suppose the Court said that there really was not the case for the Court to consider.

This was something that Congress had given this public official sole discretion to do and you cannot appeal from that sort of thing.

And today and indeed the Internal Revenue Code provides for discretion of the Commissioner of Internal Revenue to settle cases.

If a case is settled and some third party does not like the way it was settled, there is no course of action to come into the federal courts --

Justice Byron R. White: Instead audit somebody and allow the depreciation deduction and nobody can really challenge it?

Mr. Stuart A. Smith: Exactly, exactly.

And it seems to us that Congress has made a decision that these particular public officials, they may make mistakes from time to time, but the presumption is that they are upgrading sincerely in accordance with their best likes.

The tax law is hard, but the Internal Revenue Service is staffed by people who have a good deal of expertise in this matter and the Courts are not going to second guess them in this context.

Justice William J. Brennan: Mr. Smith, these Rulings are subject, are they not at any time of revocation?

Mr. Stuart A. Smith: Of course.

Justice William J. Brennan: And even when revocation may affect a given taxpayer?

Mr. Stuart A. Smith: Indeed, the Internal Revenue Service reserves the right to revoke something retroactively and it generally only does it when there is an omission of the material fact, but he can do in this Court and Dixon and American Automobile Association has said that he can do it.

And Mr. Justice Brennan, that brings up another point about --

Justice Thurgood Marshall: That can be tested in the chartable case by the contributor, can he?

Mr. Stuart A. Smith: That can be tested in the charitable -- yes, as the Court have indicated in Bob Jones.

Justice Thurgood Marshall: But in the other case where a guy is in some corporation or foundation has violated his exemption, nobody can do anything about that, but the Commissioner?

Mr. Stuart A. Smith: Exactly, of course the public has a right to bring the matter to the attention of the Commissioner.

Justice Thurgood Marshall: But no legal action could reach it?

Mr. Stuart A. Smith: Absolutely, in the same way that as we point out in our brief.

If somebody feels somebody is involved in an unfair labor practice and contacts the general counsel of the Labor Board and he disagrees, that is the end of the matter.

You cannot sue to compel the general counsel of the Labor Board or the Federal Trade Commission or may other agencies and ask them to commence proceedings against private parties.

Congress has vested discretion in these officials alone to enforce those statutes.

I want to mention one other thing, and sort of as a concomitant to what my discussion with Mr. Justice Brennan, and that is these injunction -- the -- the difficulties engendered by this kind of injunctive actions could sue in this case are illustrated by what happened after the District Court’s judgment came down.

The District Court voided the Revenue Ruling and enjoined the Commissioner from taking any action consistent with it then of course the government appealed.

Of course, during that -- of course during that time, too many hospitals were anxious to have their tax status clarified.

Contributors who are anxious to have their deductions clarified.

Municipal bond issues were pending as to whether exempt -- hospitals were tax exempt.

The government applied for a stay to the District Court of its decision in order to allow at least until the matter was resolved throughout the courts to have its policy continued to be extent.

The District Court denied the stay, the Court of Appeals denied the stay.

Essentially for six or eight months the matter was in complete limbo.

The Commissioner had no idea how to enforce the law at all and it seems to us that really demonstrates how these injunctive actions undermine the whole very salutary nature of the Revenue -- published Revenue Ruling Program which is to educate the public and if the public is in disarray, does not know what the answer is going to be, and the Commissioner is time being by Court orders in a normal case where a ruling is once -- if let us say a ruling is approved by a District Court as it was ultimately by the Court of Appeals here and let us say for one reason or the another the Commissioner wants to modify it as he --

Justice William H. Rehnquist: Mr. Smith, can the Commissioner or the secretary be sued in any one of the ninety-three judicial districts?

Mr. Stuart A. Smith: I think so simply because he has -- you know the Internal Revenue District office is there, so I would think that he could --

Justice William H. Rehnquist: So you know, it is not just a question of litigation in the District of Columbia Circuit I think?

Mr. Stuart A. Smith: I think that is probably right --

Justice William H. Rehnquist: Bob Jones came up out of the Fourth Circuit, did he not?

Mr. Stuart A. Smith: Right, yes, Bob Jones came up through the District Courts, yes.

Right, the point I was -- the final point that I was going to make was essentially if a ruling were approved and the Commissioner wanted to modify it in some way, presumably would have to go back to the District Court that approved it by an injunctive order to get permission to modify it otherwise he would be in contempt to that court order.

The tax law simply cannot be administered that way, we submit, and [Laughter]

Justice Byron R. White: It did not came out of this?

Mr. Stuart A. Smith: The reasons we have set forth probably at two greater length than our brief --

Justice Byron R. White: Can you say that again [Laughter]

Mr. Stuart A. Smith: We submit that the judgment of the Court of Appeals be reversed and remanded to the District Court for an entry of judgment dismissing the complaint for lack of jurisdiction.

Chief Justice Warren E. Burger: Thank your Mr. Smith, and Ms. Rose, your time is up Ms. Rose.

Rebuttal of Marilyn G. Rose

Ms Marilyn G. Rose: My time is up?

Chief Justice Warren E. Burger: Do you have something factually to raise other than the argument, we will give you a moment.

Ms Marilyn G. Rose: May I make one statement of fact.

There are over twelve-thousand lawsuits that are brought every year involving Revenue Rulings by -- on refund and deficiency situations, and that is where uncertainty may lay if there is uncertainty.

The half a dozen suits in five years do not brace uncertainty.

Chief Justice Warren E. Burger: Thank you Ms. Rose.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Warth v. Seldin - Oral Argument

Thu, 23 Aug 2012 18:26:25 +0000

Case:

Warth v. Seldin

Media File:

73-2024_19750317-argument.mp3

Related Transcript:

73-2024_19750317-argument

Transcript:

Argument of Emmelyn Logan-baldwin

Chief Justice Warren E. Burger: We'll hear arguments next in 73-2024, Warth against Seldin.

You may proceed whenever you're ready Mrs. Logan-Baldwin.

Ms Emmelyn Logan-baldwin: Mr. Chief Justice and may it please the Court.

This case is before the Court on a writ of certiorari to the Second Circuit Court of Appeals.

The District Court, Western District of New York, originally dismissed the complaint on two grounds.

None of the petitioners had alleged standing to sue and that no claim was stated.

The Second Circuit Court of Appeals affirms solely on the ground that none of the petitioners have standing to sue.

Thus, the record before this Court consists only of the complaints of the plaintiffs, the motion papers of the respondents on the motion to dismiss and the affidavits in opposition to that motion to dismiss.

The record then as it stand must be reviewed by assuming that all of the material allegations of the complaints are true and that the complaints must be read in the light most favorable to the construction of those allegations by the complainant and to grant any relief that could be possibly granted with the fair and liberal reading of that complaint.

The basic complaint of the petitioners is that the zoning ordinance of the Town of Penfield, New York on its face and as applied is illegal and unconstitutional being racially discriminatory.

The question before this Court is whether any of the petitioners have alleged injury in fact and that injury being within a zone of interest of a constitutional or statutory provision which the petitioners alleged that the respondents have violated.

The petitioners before the Court are basically three groups or three categories.

First of all, the petitioners are low and moderate minority income persons who claim that they had been forbidden or excluded from residing in the Town of Penfield by the operation of the Town of Penfield racially exclusionary zoning ordinance.

Secondly, the petitioners are organizations and associations of persons whose members have been actively involved in efforts to amend the zoning ordinance of the Town of Penfield to permit the construction of low moderate multi-racial income housing there, or who have actually made proposals for the construction of such housing in the Town of Penfield all to know avail.

First of these groups --

Chief Justice Warren E. Burger: But now they don't mean that ordinance to make it multi-racial, do they?

Ms Emmelyn Logan-baldwin: Well, Your Honor, our contention is that the home builders and other private builders and entities have actually made proposals in the form of housing construction which would be within a range which can be purchase by low and moderate multi-racial persons.

The town has arbitrarily refused to grant variances, exceptions and so forth to a very rigid zoning ordinance which dictates the construction only of very expensive and exclusive housing, so that the application of the zoning ordinance dictates a racial stratification and population.

The first of the --

Justice Lewis F. Powell: Behind acquire is that a concrete zoning application refusal in this record?

Ms Emmelyn Logan-baldwin: There are numbered instances, Your Honor, of attempts --

Justice Lewis F. Powell: These specific cases with the parties involved --

Ms Emmelyn Logan-baldwin: Yes, Your Honor.

Justice Lewis F. Powell: -- your clients here?

Ms Emmelyn Logan-baldwin: Yes Your Honor, and let me clarify that.

The Second Circuit Court of Appeals in its decision suggested that there really weren't that kind of concrete proposal.

I submit, Your Honor, that that is a misreading of the record.

The fact is that both the Rochester Home Builders and other entities such as Penfield Better Homes which is a member of petitioner Housing Council have actually tried to have such construction approved in the Town of Penfield.

All of those efforts have been denied, all those applications.

The Penfield Better Homes application to rezone was denied by the town on the basis that the housing was not appropriate or consistent with the use of the adjacent properties, which is single family dwelling.

I think this case falls beyond eventhough its other cases which the Second Circuit suggested are concrete housing proposals.

All efforts here have been totally frustrated, the far worst situation to name those other cases.

And I might point out with respect to the Rochester Home Builders, they allege in their complaint, not only have they made these various and numerous applications for exception to the zoning ordinance, but that the Town of Penfield has threatened that if they pursue this lawsuit, if they try to rectify the exclusionary zoning ordinance that they will not be allowed to do business in the ordinary course of doing business with the public officials of the town in the ordinary course of construction of exclusive housing in the town.

Justice William H. Rehnquist: Did Penfield Better Homes, the one that you mentioned, had a plan denied?

Did they ever seek to review the action of the zoning commission in the New York courts?

Ms Emmelyn Logan-baldwin: They did not.

They possibly as we indicated in our brief could have done so.

But the mere fact that they did not pursue that course, of course, does not prevent them from proceeding as a part of a membership organization to the federal court to get redress for these illegal acts pursuant to the statutes and the Constitution.

Justice William H. Rehnquist: How long before the filing of this suit in the District Court had the Penfield Better Homes application been turned down?

Does the record show that?

Ms Emmelyn Logan-baldwin: It does, Your Honor.

The whole Penfield Better Homes application is included in the record as a part of the affidavit of Mrs. McNab, and I believe the date is 1971 for the conclusion of the denial of that.

And the immediate preceding acts on -- the acts immediately preceding the filing of this complaint were specific and concrete proposals of another organization Metro-Act of Rochester for the Town of Penfield to amended zoning ordinance so that this construction could take place.

Justice William H. Rehnquist: Is Metro-Act a builder?

Ms Emmelyn Logan-baldwin: Metro-Act is a civic organization.

Justice William H. Rehnquist: Is it a builder?

Ms Emmelyn Logan-baldwin: It is not a builder.

It has not engaged in construction itself.

It has engaged to the number of efforts to encourage construction.

One of its members, Mrs. McNab, whose affidavit I have just referred to, is a member of Penfield Better Homes, so there is an interaction between the group plaintiffs and their efforts to build low and moderate income housing in the Town of Penfield.

Justice Harry A. Blackmun: If you prevail here, what type of remedy do you envisage?

Ms Emmelyn Logan-baldwin: Well, the complaint asked for a declaratory judgment that the zoning ordinance is racially discriminatory and therefore, illegal and unconstitutional.

And that there be an appropriate zoning ordinance drafted, proposed and enacted.

It simply the same type of relief that this Court has granted in a number of the cases involving racial discrimination.

Justice Byron R. White: So you think the -- is it only the standing issue here?

I suppose it is, isn't it?

Ms Emmelyn Logan-baldwin: This -- this Court has only the standing issue, Your Honor.

Justice Byron R. White: So if the court was wrong below, it would still have to rule on whether there was cause of action, do you?

Ms Emmelyn Logan-baldwin: Well, I think that the court would have two choices in terms of dealing with this case.

You could certainly remand the Second Circuit, telling it to proceed with the further consideration of whether a claim is stated on its face.

I think, however, that this Court could also remand to the Second Circuit with direction because the record, I think, clearly establishes beyond a shadow of doubt that a claim is stated.

This is a typical a claim of racial discrimination pleaded in the most traditional such form and there are many cases of this Court which would indicate that this is a properly stated claim.

Chief Justice Warren E. Burger: Are you suggesting that on this record, we could make the determination, tell the Court of Appeals of the Second Circuit with the complaint stated a cause of action?

Ms Emmelyn Logan-baldwin: I think the record would permit this Court to remand with directions.

I think they're clearly two choices though.

The only question before this Court is standing, and that is the only question which the Second Circuit reached.

Justice Harry A. Blackmun: You think that there is an issue here of justiciability as well as standing?

Ms Emmelyn Logan-baldwin: I don't think, Your Honor.

I think if you referred to a question of rightness, if I understand the question correctly, I think there could be no such reading on this record.

Rightness would involve a consideration of whether the issues have reached the point of administrative finality.

This zoning ordinance was adopted in 1962.

We have had numerous applications of the zoning ordinance.

Its -- its pattern of enforcement is clear.

The plaintiffs clearly can show that that pattern of enforcement is totally racially exclusionary.

Justice Harry A. Blackmun: This is why I asked you about the type of remedy you envisaged that in part of your answer was I take it that you would expect judicial enforcement of a -- the drafting of a new ordinance.

Ms Emmelyn Logan-baldwin: Well, I think, Your Honor that in a case of racial discrimination, such an order directing affirmative relief, it has been a part of a District Court handling of the case, I think it would be appropriate here.

I think though again if I could focus on the one issue that is before the Court, and that is standing, and that as to the nature of relief, that is within the providence of the District Court.

There of course has been no proof, no depositions, no interrogatories, we maintained it.

Justice Harry A. Blackmun: It went off on the ground also that you can think did not state the cause of action.

Ms Emmelyn Logan-baldwin: That the District Court only Your Honor, the Second Circuit.

Justice Harry A. Blackmun: Therefore, I was expecting starting from this Court, that to say that it does state a cause of action before there could be a charge?

Ms Emmelyn Logan-baldwin: That's correct.

Chief Justice Warren E. Burger: We'll resume there after lunch.

Ms Emmelyn Logan-baldwin: Okay.

Chief Justice Warren E. Burger: You may continue.

Ms Emmelyn Logan-baldwin: The Town of Penfield, New York is virtually a 100% white population.

In the 1960 census, its population was 12,601.

Now, only 23 of those persons were blacks.

In the 1970 census, the population of the town had practically doubled to 23,782 persons.

At that time, there were only 60 black persons.

The ordinance of the town is so drafted that there cannot be any construction there except exclusive housing.

Justice Potter Stewart: Penfield immediately contiguous to Rochester?

Ms Emmelyn Logan-baldwin: It is.

It is one of the suburban towns which encircle the City of Rochester.

Justice Potter Stewart: So that the joint from Rochester to the Penfield one would not be aware that there's --

Ms Emmelyn Logan-baldwin: Not at all.

Justice Potter Stewart: -- not the same place.

Ms Emmelyn Logan-baldwin: It's an entire metropolitan area, persons work and live in both Penfield and Rochester; totally interchange a population, Your Honor.

Justice Potter Stewart: And what's the zoning generally of the Penfield, does it include industrial and commercial zoning as well as residential?

It does.

It's a complete ordinance allowing most of kinds of uses of any full community.

It's not a -- it's essentially a bedroom community.

In terms of its zoning for residential purposes, however, 98% of the vacant land is zoned for single family dwellings, and the requirements to the ordinance were such that lot size, total lot size, house setback, side setback, the space of the house dictate that according to 1972 Building Figures, you couldn't construct a single family dwelling there costing less than $29,115.00.

There is only three-tents of 1%.

Justice Potter Stewart: That would include the cost of land acquisition?

Ms Emmelyn Logan-baldwin: That would include the cost of land.

Justice William H. Rehnquist: What is the land limitation, Mrs. Baldwin?

Ms Emmelyn Logan-baldwin: In --

Justice William H. Rehnquist: The minimum lot size?

Ms Emmelyn Logan-baldwin: In terms of minimum lot size, it's roughly 20,000 square feet, Your Honor.

Justice William H. Rehnquist: Half an acre?

Ms Emmelyn Logan-baldwin: Yes, Your Honor.

In terms of what the experts who examine the zoning ordinance suggests as a reasonable size of lot, that is half of that, roughly 10,000 square feet.

The zoning ordinance permits the --

Justice Harry A. Blackmun: Who are the experts?

Ms Emmelyn Logan-baldwin: The experts are city planners who have filed an affidavit on behalf of the petitioners.

It appears in the record beginning at --

Justice William H. Rehnquist: What other qualifications could tell Penfield what they ought to have?

Ms Emmelyn Logan-baldwin: Well, these are persons who actually are involved in drafting of ordinances, involved in the study of zoning ordinances.

All of -- two of these experts have participated in actual studies of zoning ordinances including the Town of Penfield ordinance on behalf of the metropolitan Governments of the Rochester area.

And in that study which was conducted in 1970, the experts concluded that the only reason for the total absence of low and moderate income housing in the suburban towns including the Town of Penfield is racial prejudice.

So that --

Justice Thurgood Marshall: Who are these experts?

Ms Emmelyn Logan-baldwin: Well, the one, Mr. Kling is a professor at the University of Rochester.

He is generally known as an urban planner.

Justice Thurgood Marshall: Professor of what?

Ms Emmelyn Logan-baldwin: Professor of urban planning, I believe.

Justice Thurgood Marshall: Degrees of what?

Ms Emmelyn Logan-baldwin: I believe, Mr. Kling has a PhD in urban planning from the University of Michigan.

He is a present -- presently teaching both at the University of Rochester and the St.John Fisher's College.

Mr. Tatikin is a member of the Municipal Research Agency of the City of Rochester, a research institution that undertook the study of zoning in 1970.

And --

Justice Thurgood Marshall: Difficulty with qualification if I don't have anything with person.

Remember, the only question my Brother Blackmun was asking, what were their qualifications.

Ms Emmelyn Logan-baldwin: Yes.

Well, all of them are -- have been as careers involved in considerations of what are permissible land uses and spaces in communities.

Justice Thurgood Marshall: And their expertise in the Constitution is what?

Ms Emmelyn Logan-baldwin: Their --

Justice Thurgood Marshall: Or should I say if any.

Ms Emmelyn Logan-baldwin: They examine this ordinance from the standpoint of the health and safety factors --

Justice Thurgood Marshall: They don't have to be judges.

Ms Emmelyn Logan-baldwin: They don't have to be experts in the Constitution.

Chief Justice Warren E. Burger: Are you suggesting that there is something inherently wrong or undesirable for people who want to have a lot that's a half acre or an acre or two acres on which they rear their families?

Ms Emmelyn Logan-baldwin: That is not inherently wrong.

What I'm suggesting --

Chief Justice Warren E. Burger: What do the people do want that kind of space?

Ms Emmelyn Logan-baldwin: Well, there's nothing in this case that would prevent those persons freely owning that kind of property.

This case is directed, Your Honor, solely to the affirmative acts of officials of a town to so classify and so zone, so as to exclude racial minorities.

That is what's at issue, the affirmative acts.

There is nothing here in this case that would prevent ordinary uses of land by private individuals in terms of space if they wanted to acquire that space.

Justice William J. Brennan: Any of the single family homes owned by members of a racial minority?

Ms Emmelyn Logan-baldwin: The record doesn't address itself to that specifically, Your Honor.

There are according to census figures, 60 blacks as of the 1970 census.

There is a housing study in the record of the Town of Penfield itself which would seem to indicate that the persons with the large incomes of course are occupying very, very expensive houses there.

Of the zoning ordinance, only 3% or three-tenths of 1% permits multifamily construction.

And there again, the requirements of space for apartments and other amenities such as --

Justice William J. Brennan: I gather, it's not suggested that a one -- a member of racial minority who can afford it, even one of the most expensive of the houses is precluded from building or buying one --

Ms Emmelyn Logan-baldwin: Well --

Justice William J. Brennan: -- by the ordinance.

Ms Emmelyn Logan-baldwin: No, not on its face.

The effect of this ordinance as it applies is to exclude the whole class of people and those that class of people is defined, Your Honor, as persons, minority persons who earn roughly between $5,000.00 and $11,000.00 per year and who can afford a single-family dwelling costing no more than $20,000.00 in an apartment unit winning for no more.

Justice Byron R. White: The class is just to minority groups.

I mean other people with the same income limitations have the same problem --

Ms Emmelyn Logan-baldwin: Well, Your Honor that is the practical effect of this ordinance.

Justice Byron R. White: Aren't they -- weren't -- white and the black of same income have the same problem, wouldn't they?

Ms Emmelyn Logan-baldwin: Well, --

Justice Byron R. White: -- boarding a house such only they can do?

Ms Emmelyn Logan-baldwin: Arguably so, Your Honor.

The --

Justice Byron R. White: Arguably is -- well, tell me why it isn't so?

Ms Emmelyn Logan-baldwin: Well, in the last analysis, our allegations are the ordinance is aimed at minorities, blacks and Spanish Americans and in fact, the studies of its applications --

Justice Byron R. White: That is what I asked you.

I asked you whether or not would the same -- if the white would have the same problem affording a house?

Ms Emmelyn Logan-baldwin: Yes, but the impact of the ordinance is on the racial minority, the black and the Spanish Americans.

Justice Byron R. White: Why is the impact on them anymore than on a poor white?

Ms Emmelyn Logan-baldwin: Well, those are the persons who are predominantly seeking this housing and against which the ordinance primarily excludes.

Justice Byron R. White: What evidence do you have that the blacks or the poor blacks and not poor whites were excluded?

Ms Emmelyn Logan-baldwin: Well, the first evidence, Your Honor, is the housing study of Monroe County which was conducted 1970 which indicated that the primary motivation for the exclusion of this type housing is to exclude blacks.

The second indication is in the record in the 1972 study of the town itself, which concludes that its impact is totally exclusionary.

Justice William J. Brennan: I take it you say that in any event, the allegation and all we have is the allegations and if the standing is established and you got the burden of proving that.

Ms Emmelyn Logan-baldwin: Certainly, Your Honor, that's precisely the --

Chief Justice Warren E. Burger: Under the rules, do you regard that is well pleaded fact or is it a conclusion?

Ms Emmelyn Logan-baldwin: Well, those are the allegations, Your Honor.

Chief Justice Warren E. Burger: Well, is it a well pleaded fact --

Ms Emmelyn Logan-baldwin: Yes.

Chief Justice Warren E. Burger: -- under the rule?

Ms Emmelyn Logan-baldwin: That -- that the motivation is --

Chief Justice Warren E. Burger: Is it not an opinion?

Ms Emmelyn Logan-baldwin: No, I think it's a matter of fact which evidence can be adduced.

Justice Thurgood Marshall: Are there any Negro that can buy $21,000.00 houses in Rochester?

Are you going to tell me that there are not any?

Ms Emmelyn Logan-baldwin: No, Your Honor, no.

Justice Potter Stewart: Well, yes, there are, are there not in the Rochester community?

Ms Emmelyn Logan-baldwin: That could by to accounts costing $21,000.00 if that was the question.

Justice William J. Brennan: In Penfield?

Ms Emmelyn Logan-baldwin: In the City of Rochester was questioned.

Justice Thurgood Marshall: No, no, in this town right here.

Ms Emmelyn Logan-baldwin: In Penfield?

Justice Thurgood Marshall: Yes.

Ms Emmelyn Logan-baldwin: There again, I don't think the record speaks particularly to that question, Your Honor.

Justice Thurgood Marshall: Well, is there anything in the record that shows that there's no Negro in the Rochester area that can afford the $21,000.00 house, the answer is no.

Ms Emmelyn Logan-baldwin: No.

Justice Thurgood Marshall: Because if it was in the record, it wouldn't be true.

Ms Emmelyn Logan-baldwin: Right.

Justice Thurgood Marshall: So, it is true that the fact that $21,000.00-limit does not exclude all Negroes.

Ms Emmelyn Logan-baldwin: Not all, no, Your Honor.

Justice Thurgood Marshall: It does not.

Justice William H. Rehnquist: Mrs. Logan-Baldwin, supposing that we were to rule in your favor on standing in the Second Circuit or the District Court were to rule on your favor on the constitutional question, as a result of that ruling, would there be any identifiable parcel of land or building that would be then available for your clients?

Ms Emmelyn Logan-baldwin: Yes, Your Honor.

Then --

Justice William H. Rehnquist: Can you tell us from the record what the parcel would be?

Ms Emmelyn Logan-baldwin: Well, the record has a report of the Town of Penfield which examines its total land area.

Justice William H. Rehnquist: I mean simply as a result of the ruling that I've describe.

Could you point to an identifiable parcel that would then be available?

Ms Emmelyn Logan-baldwin: Well, yes Your Honor, there have been several proposals that we've talked about.

Obviously --

Justice William H. Rehnquist: Are they still pending?

Ms Emmelyn Logan-baldwin: There are some so-called Plan Unit Development proposals that are in some stage of being processed.

Justice William H. Rehnquist: But it -- does the person own the land or have an option on the land?

Ms Emmelyn Logan-baldwin: In the case of Plan Unit Developments, there is actually ownership or options and those could proceed.

I think it's very interesting to note the experience to the Town of Penfield with the Plan Unit Development ordinance in order to accent what I'm saying about racial prejudice.

This type of an amendment to the ordinance is ordinarily viewed as a way in which you can construct low and moderate multi-racial income housing.

They enacted the ordinance, but when builder sought to use that ordinance to construct this housing, they -- the town board specifically responded, reacted to citizen pressure suggesting that this would permit those people to move in and property values would go down and reduced the permissible density, so that what started out to be the utilizing of the ordinance for the construction of this type of housing resulted in either those projects being abandoned completely.

Justice William H. Rehnquist: Well, doesn't it grant a special use permit to give a Plan Unit Development under the Town of Penfield?

Ms Emmelyn Logan-baldwin: Well, there's a special -- an especially cumbersome process you might say.

Justice William H. Rehnquist: You can surely answer that yes or no, can't you?

Does it or does it not?

Ms Emmelyn Logan-baldwin: Yes, I think that's a special use.

Justice William H. Rehnquist: And then what you're complaining about is that the board refused to grant a special use permit?

Ms Emmelyn Logan-baldwin: Well, they have not processed completely these Plan Unit Development applications.

Our allegation is that if they have either delayed them inordinately or so modified them to transform them to exclusive housing so that essentially, those efforts have been -- have failed.

Chief Justice Warren E. Burger: On the thesis that you advanced here, I suppose that if there were an area in an 20 miles or 30 miles out of a large city which was laid out for minimum 10-acre lots, 10-acre tracks for people who wanted to have a lot of space and perhaps ponies for their children and what not, that would be vulnerable to the constitutional attack you made as soon as the low income housing began to press up against that.

Ms Emmelyn Logan-baldwin: Well, Your Honor again, I don't think that case reaches this.

We have here only a questing --

Chief Justice Warren E. Burger: The difference in principle from what you're advocating here?

Ms Emmelyn Logan-baldwin: No.

Again, what we're talking about here are affirmative acts to the Town of Penfield to exclude minorities.

Now, we have to of course have our day court on those allegations.

Chief Justice Warren E. Burger: Well of course, if 10,000 -- if 20,000 square feet can be made out as exclusionary, then 10 acres very clearly would be more exclusionary, would it not?

Ms Emmelyn Logan-baldwin: Well, yes.

But again, what we're talking about are particular individuals who make a claim that the affirmative acts of the town have a particular effect and pattern and each case would have to be examined on its own.

But we're saying here that this is racially motivated and it is the same as the town hanging a sign outside the Town of Penfield that minorities are not wanted here.

It has that same effect.

I'd like to direct my --

Justice Thurgood Marshall: The sign that said minorities with less than $21,000.00 are not allowed?

Ms Emmelyn Logan-baldwin: Well, again Your Honor --

Justice Thurgood Marshall: Are you on the racial point or the money point?

Ms Emmelyn Logan-baldwin: Well, Your Honor, we're on the racial point.

We obviously have to, at the time of trial, introduce the evidence which substantiates that.

But in the record, the conclusions are that the enforcement of this ordinance has been with that intent in mind.

If I could, I'd like to reserve the remaining time for rebuttal.

Justice Thurgood Marshall: Can a white person build anything out there for less than $21,000.00?

Ms Emmelyn Logan-baldwin: No.

Justice Thurgood Marshall: Nobody had.

Ms Emmelyn Logan-baldwin: It is -- it's totally exclusionary.

In fact, the Town of Penfield has --

Justice Thurgood Marshall: Are there any Negroes out there at all?

Ms Emmelyn Logan-baldwin: At all?

Justice Thurgood Marshall: You said there was so.

Ms Emmelyn Logan-baldwin: There are 60 according to the census.

Justice Thurgood Marshall: Are they --

Ms Emmelyn Logan-baldwin: 60 out of 23,000.

Justice Thurgood Marshall: Are they living in the homes?

Ms Emmelyn Logan-baldwin: The record doesn't show where those 60 and who those 60 are, Your Honor.

Justice Lewis F. Powell: May I ask a question?

Ms Emmelyn Logan-baldwin: Yes, Your Honor.

Justice Lewis F. Powell: At the time they complaint was filed, Mr. Ortiz worked in Penfield?

Ms Emmelyn Logan-baldwin: That's correct.

Justice Lewis F. Powell: In May of that year, he gave that job up for one reason or another.

Ms Emmelyn Logan-baldwin: Yes.

Justice Lewis F. Powell: Do any of the present plaintiffs worked in Penfield?

Ms Emmelyn Logan-baldwin: Mr. Ortiz was the only person who worked in Penfield.

There are members of plaintiff Metro-Act of Rochester who live and reside in the Town of Penfield.

Approximately, 9% of the membership of plaintiff Metro-Act of Rochester are residents of the Town of Penfield.

Chief Justice Warren E. Burger: Very well.

Ms Emmelyn Logan-baldwin: Thank you.

Chief Justice Warren E. Burger: Mr. Hartman.

Argument of James H. Hartman

Mr. James H. Hartman: Mr. Chief Justice and may it please the Court.

I must take issue with the argument just made and that there are instances in this record that would indicate what my adversary concludes.

First of all, the relief sought here is very, very sweeping.

It's to declare the zoning ordinance of the Town of Penfield unconstitutional to enjoin its enforcement and to require a new ordinance to be passed.

Secondly, we have these individual plaintiffs, the real plaintiffs were originally in the case, people who are indeed members of minority groups and who are members of -- who are poor, who are poor members of the minority groups.

Now, not one of these individuals has made a single application for housing in Penfield.

The -- one of these big persons, Ms. Angela Reyes, alleges in supporting affidavits which were submitted on the motion to dismiss this complaint, that she'd looked around for two years, but she saw a broker and that the broker, one broker was helpful.

She has an income of $931.00 a month, she and her husband, and disposable income for housing of $231.00 a month.

That's the extent of her and that's the most that's alleged by any plaintiff.

Now, they say, the --

Justice Byron R. White: Including individuals?

Mr. James H. Hartman: Individual plaintiff, yes Your Honor, which I'd like to treat first.

Then, they alleged in addition that the in the complaint that the zoning ordinance of the Town of Penfield discriminates against minorities because it hasn't waived, modified and the administrators of that ordinance haven't waived, modified, amended, granted building permits of variances of any kind to relieve the situation.

But there's not a single application for such a permit except by one of the association members whose not a plaintiff and who is not a party -- doesn't seek to be a party.

Now, we're talking about a very broad constitutional affect that this Court should rule, concerning these -- allowing these plaintiffs to have standing.

Because we're talking about the Fourteenth Amendment, we are to talk in terms of what specifically that these plaintiffs do to create a fact context which would indicate to the Court that the Fourteenth Amendment has indeed been violated.

Without these facts, what can we work with?

What relief will we give?

Will the relief -- first of all, the adjudication maybe unnecessary because on an application for some kind of relief from the zoning ordinance, it might very well be granted.

If it's denied, at least some controversy, some confrontation with the town or its administrative agencies would have taken place to give a factual context within which to make a constitutional determination of this import.

Now right now, none of these affidavits indicate that any plaintiff wants to live in Penfield.

One says, “I might want to live there”, that's Ortiz's affidavit.

Reyes doesn't mention wanting to live in the Penfield or that they will live in Penfield.

Have they been injured or is this allegation and their position totally speculative?

Because if the relief were granted which they seek, the abolition in effect of the Penfield zoning ordinance, would these individual plaintiffs receive themselves any substantial relief?

And have they been injured?

They have a personal state in the outcome of this litigation.

If they haven't alleged, they try to get into Penfield or that they even desire to get into Penfield?

Isn't this kind of like O'Shea against Littleton where the relief they had ripened into a position to be relieved by any judgment?

And I think we have to look at this manner from the vantage point of the complaint and overlook, the litigation that would take place to the outcome of that litigation and determine in order to determine standing whether that outcome would in effect affect these plaintiffs.

Now, I'd like to go if I may to the association of plaintiffs and what I've said concerning the individual plaintiffs applies to the associational petitioners.

One is a plaintiff, Metro-Act.

One, there was -- there was a motion made to bring in the Housing Council of the Monroe County Area.

Now, that motion was denied because standing was denied for all the other petitioners.

And the motion is sort of surrounded by some procedural vagary because it doesn't refer to Rule 19 of the Federal Rules of Civil Procedure, which indicate when a party should be joined as a plaintiff and/or as a defendant depending on the circumstances.

In any event, the motion to bring them in is denied and they seek to be made a party plaintiff, and it is that Housing Council which refers to Penfield Better Homes who is not a party and doesn't seek to be a party.

Now, the Housing Council is basically an association of associations and public agencies.

The Penfield Better Homes did indeed at one time apply for a project called Highland Circle in the Town of Penfield and sought variances or permits or actually I think an amendment to the zoning ordinance.

It was denied and that -- as a matter of fact, it was denied in 1969, September of 1969, and then on -- a rehearing was had in November of '69, and on January 12, 1970, there was a denial of any further public hearing and these are in the appendix at pages 631, 881, and 883.

Now, for two years, Penfield Better Homes did nothing.

They have done nothing yet.

Housing Council is moved to be brought into the case and uses Penfield Better Homes as an incident to give stand.

But Housing Council has no complaint in this action.

If Housing Council were allowed to remain standing as a party to this action, there are no allegations because they have not yet put in the complaint.

Now, is Housing Council derivatively in a better position to pursue these rights than is Penfield Better Homes who had lawyers made the application was turned down and was turned down on three grounds: erosion problems, traffic problems, and that the project was inconsonant with the surrounding neighborhood, which is a general and classical way that variances and rezonings are turned down in towns that inconsonant with the neighborhood.

If they didn't bring the action, are we to assume that that was done on racially discriminatory grounds?

If Penfield Better Homes for two and a half years and today has not instituted any kind of action or proceeding in either the state courts in the State of New York or in federal court alleging anything no less racially discriminatory conduct or a racially discriminatory effect of the zoning ordinance to Town of Penfield is Housing Council derivatively to assert that through an affidavit of Mrs. McNab who is not yet a party and has no complaint?

Justice Byron R. White: Is the record clear one way or another as to whether one of the reasons that this organization was turned down was because it wanted to build houses on lots that were smaller than provided for in the zoning ordinance?

Mr. James H. Hartman: The decision is in the record, Your Honor, yes sir.

The decision is in the record and says and gives as its reasons, those three things I've related to.

Justice Byron R. White: Well, I know but you still haven't answered my question I gather.

Mr. James H. Hartman: I don't know that it's because of they wanted to build a housing of a greater density and would ordinarily be allowed.

I think so, I think so.

Justice Byron R. White: Well, what was the basis for saying that their project wouldn't be consonant with the surroundings?

Mr. James H. Hartman: I think because it was for higher density multifamily housing in a area that was surrounded by residential single-family now.

Justice Byron R. White: Is that clear in the record?

Mr. James H. Hartman: It should be clear in the record, Your Honor.

Justice Byron R. White: Well now, if an organization applies for variance to build other than a single-family dwellings on lots of specified size and it's turned down and it -- I suppose it would have had at that point to say standing to litigate in the state court as to whether the zoning board decided correctly.

Mr. James H. Hartman: It has two methods it can use in New York state courts.

If the denial was done in an administrative manner by an administrative board, it can take a proceeding under Article 78 of the Civil Practice Law and Rules which is a review in a nature or certiorari mandamus, etcetera.

Justice Byron R. White: Well, it would have a personal stake here?

Mr. James H. Hartman: Oh, yes.

They --

Justice Byron R. White: What across the street with federal court had said that, I've been heard here by zoning ordinance that's unconstitutional?

I want it declared it unconstitutional, would you say it didn't have standing?

You may not agree with the cause of action, but how about standing?

Mr. James H. Hartman: He may have standing in the federal court if he raises a federal constitutional issue, certainly.

If that party makes himself a plaintiff in a federal action and says because of this instance, in this factual context, when I confronted the town of Penfield and sought relief, I allege that they denied it for racially discriminatory reasons; I think he would have standing.

Justice Byron R. White: Not racially discriminatory reasons, but because --

Mr. James H. Hartman: Well, the federal --

Justice Byron R. White: -- because I wanted to build higher density housing in the zoning --

Mr. James H. Hartman: No, then he would not have standing.

If it was just for high density housing, I don't think he have standing.

Justice Byron R. White: I know, but he turned -- he was denied of his permit for that reason, and he goes and says “the zoning ordinance is unconstitutional, and two have denied me, this is unconstitutional”.

Now, why doesn't he have standing?

Mr. James H. Hartman: Well, he would if he raised the valid constitutional question under the Federal Constitution.

If he says he's been deprived of property -- if he would allege, he's been deprived to property for instance, he can't develop this property.

Justice William J. Brennan: Well, I gather your argument anyway is he didn't do it.

Mr. James H. Hartman: He didn't do it.

Justice William J. Brennan: That this association of which Penfield was a member, that's he attempted to do it, is that it?

Mr. James H. Hartman: Right, that's correct, that's correct Your Honor.

Justice William H. Rehnquist: Aren't your little confusing standing with valid defense to the constitutional claim in answer to Justice White's question.

In other words, you say that he would have standing if he made a valid constitutional attack on the ordinance, but the two or somewhat separate.

Mr. James H. Hartman: Yes, yes Your Honor, they are separate.

Now, I say he would have standing if he, his question -- his constitutional question were raised in a specific factual context which is lacking here.

Not just because he raises the constitutional issue, no, no.

Justice William H. Rehnquist: You're saying that if Penfield Homes had gone over to the federal court right after they were denied and said this particular application was denied for this reason, they would have standing?

Mr. James H. Hartman: Yes, Your Honor.

Justice William H. Rehnquist: Regardless of the merits that are constitutional --

Mr. James H. Hartman: That's right, they would have standing in that case, but in this record, there is no instance of that and I say an associate -- can an association -- there are association case have been brought and it's been sustained and association can bring a case in certain circumstances.

But are they in a better position, then Penfield Better Homes and they are not seeking that litigation.

They have joined in the general abstract speculative nature of the case before this Court.

Justice Harry A. Blackmun: In this connection, now that we've already interrupted you, there is this paramount of talk in some of the amicus briefs about Title 8 of the ‘68 Act.

Mr. James H. Hartman: Yes, Your Honor.

Justice Harry A. Blackmun: Is there any allegation whatsoever in the complaint about Title 8?

Mr. James H. Hartman: Not to my reading of the complaint.

Justice Harry A. Blackmun: Was it considered by the courts below?

Mr. James H. Hartman: Not to my knowledge, Your Honor.

In addition to these organizational petitioners, the Housing Council, a Metro-Act too is in association.

Metro-Act talks of a proposal.

That proposal is Exhibit Q, the next to the affidavit of a Robert Warth in the record, a proposal that they presented to the Town of Penfield.

Now, what happened and it's in the record is that they came in with this -- the zoning ordinance of Town of Penfield is 89 printed pages and it covers a multitude of issues which are properly to concern of local Government.

Metro-Act comes in and say, we made a proposal, four type-written pages which starts off with the threat of litigation if you don't listen to us.

It alludes to no particular property, but it says houses ought to have the square -- land ought to be 7,000 square feet for some houses, comes in again, the next thing is 40% of Penfield ought to be zoned for this and something for that.

Is that a proposal when they did make proposals which are in the record in the City of Rochester which picks sites, which gave the kind of housing, which show the kind of recreation, which went into the many, many details that are required when you talk about a proposal for legislation by a town?

Now, can Metro-Act -- has it been injured?

None of its members have been injured.

If none of its members had been injured, how can Metro-Act come in and say it's been --

Justice William J. Brennan: (Voice overlap) to what members?

Mr. James H. Hartman: Any -- well, Metro-Act, there's a lot of people who were interested in housing.

It has some poor members of minority groups.

It has some people who are not poor members, it has some rich people.

It --

Justice William J. Brennan: But it's an organization of individuals?

Mr. James H. Hartman: Yes, Your Honor.

Justice William J. Brennan: Not of association --

Mr. James H. Hartman: No, no, council is of associations.

Now, if the individual plaintiffs, if some of them are members of the Metro-Act and they haven't described a specific injury, how can Metro-Act now derivatively have a better claim than any of these individuals would?

Justice Thurgood Marshall: -- for permission to buy and develop his own home below $21,000.00 and it has been denied, do I understand you to say they have a right of action?

Mr. James H. Hartman: No, I said he -- if he'd applied --

Justice Thurgood Marshall: Well, you said this group has a right or action.

Mr. James H. Hartman: I said that group doesn't have a right of action.

Justice Thurgood Marshall: Didn't you say that the group -- what's the name of it --

Mr. James H. Hartman: Oh, that Penfield Homes.

Yes.

Justice Thurgood Marshall: Yeah.

Mr. James H. Hartman: If Mr. -- I said that they would have standing if they --

Justice Thurgood Marshall: But was Ortiz has standing.

Mr. James H. Hartman: If he made an application on a specific parcel to build the particular home and he was denied, he would have standing.

Justice Thurgood Marshall: Why does he have to have a particular parcel?

Mr. James H. Hartman: Well, a particular application could be a tenant for an apartment.

He doesn't have to really have an apartment.

He had a -- I don't even think that it may --

Justice Thurgood Marshall: So you deny him standing because he didn't first go to the zoning board.

Mr. James H. Hartman: That's right.

Now, it or any other board, let me add this, that even going beyond a specific interest in property or going beyond the specific parcel of property, I see no reason if relief is sought from the Town of Penfield that some steps shouldn't been taken to confront the town and say we want some land zone.

Now, whether Metro-Act does it or Mr. Ortiz does it for one piece of land --

Justice Thurgood Marshall: Well, what you say is that if it doesn't buy the land, he has no cause of action, and if he does buy the land, he might have a cause of action.

Mr. James H. Hartman: No, I say if he buys the land, he has a cause of action after he has applied for the relief.

Justice Thurgood Marshall: But he has put a whole lot of money for that.

Mr. James H. Hartman: But Metro-Act doesn't have to put up money for that, Your Honor.

Justice Thurgood Marshall: We'll talk about Ortiz for the time being.

Ortiz, because he would has to buy this land.

Mr. James H. Hartman: That's correct.

Well, if he needed the land, but I don't think he needs the land to make that application.

I think he can go in without the land for some kind of relief.

They mentioned in the complaint not only variances and permits, Your Honor, they mentioned waivers and changes in zone.

Now, he doesn't have to have land for that.

Justice Thurgood Marshall: You can't do that without owning a piece of land.

Mr. James H. Hartman: I would think so.

Justice Thurgood Marshall: He could make the application.

Mr. James H. Hartman: I see no reason actually and I tell you, if he's denied a hearing on the application; that might give him some kind of standing.

Justice Lewis F. Powell: Mr. Hartman.

Mr. James H. Hartman: Yes, yes Your Honor.

Justice Lewis F. Powell: Will you describe briefly the procedure in Penfield for one who wants to build the house?

First of all, he got the building -- he applies for a building permit.

Mr. James H. Hartman: He applies for -- he first had to submit a site plan if it's more than one house or subdivision plan to the planning board.

Justice Lewis F. Powell: The site plan and plans as specification also --

Mr. James H. Hartman: Right.

Building inspector has to make sure they comply with the building code to the state or the town.

Justice Lewis F. Powell: Right and --

Mr. James H. Hartman: He gets a building permit --

Justice Lewis F. Powell: Let's assume he's turned down.

Mr. James H. Hartman: He has an action if he turned down on an arbitrary or capricious basis --

Justice Lewis F. Powell: No.

Let's assume he's turned down, may he appeal to the Board of Zoning Appeals?

Mr. James H. Hartman: From the determination of the enforcing officer, yes, the building inspector.

Justice Lewis F. Powell: So the first step is to plaque a building permit, the second is to go to the Board of Zoning Appeals.

Mr. James H. Hartman: Right.

Justice Lewis F. Powell: Suppose he loose his land, may he go to the city council?

Mr. James H. Hartman: No, he goes to Court from there in my --

Justice Lewis F. Powell: Go to Court from there.

Mr. James H. Hartman: Right, yes.

Justice Lewis F. Powell: And may he go to Court from there under New York laws?

Mr. James H. Hartman: Yes.

The Article 78 proceeding and the zoning board has final jurisdiction over appeals from enforcing officers and also ab initio, if you will jurisdiction to grant variances.

If he's denied there, he goes right to the Court.

The town board is more legislative.

Justice Lewis F. Powell: How broad is a jurisdiction to grant variances?

Mr. James H. Hartman: It's discretion -- great deal as discretionary.

There are certain cases, New York state cases which hold instances in which variances are proper and one are not, and some of the things are that there's a unique problem that it will not do violence to the general character of the town and that kind of thing.

I must say that there's a lot of latitude in the language of the cases as well as the authority of the zoning board to rule on these things.

The last group of petitioners here -- oh, I'm sorry.

I forgot one organization or group which are the home builders and they seek to intervene.

And they say that they'd been -- that number one, they have not been able to build lower middle income housing because of this racially discriminatory ordinance, and that they've been injured.

That's the extent of it, not a single instance of a single home builder attempting to get a single permit or make an application for a single variance is in this record.

And these people are in a position; that's their business, to buy land, to take auctions on land, to get into contracts for the purchase of land and go in and get variances and get zoning relief because they do it all the time.

Justice William H. Rehnquist: Does the ordinance permit an option or to make any application for variances?

Mr. James H. Hartman: Yes, Your Honor.

Contract, then the optionee, optionor usually they're joined in by the owner and the potential purchaser.

Justice Byron R. White: If I'm wrong, did Mrs. Baldwin said there were some plaintiffs in this case maybe applicable for intervention who in fact had options or own land?

Mr. James H. Hartman: She said so it's not in the record.

Justice Byron R. White: She just say that --

Mr. James H. Hartman: Yeah, but it's not in the record except for Penfield Better Homes.

Now, there are some parts that are indeed by this time, they're under construction but the time that complaint -- the part ordinance of the Town of Penfield happens to say that --

Justice Byron R. White: What was that?

Mr. James H. Hartman: PUD, Plan Unit Development, I'm sorry.

We use it everyday, happens to say that the purpose of this is because we recognize the need for housing at all economic levels.

Now, it's a new ordinance, it's a new field, but there are four PUDs, Plan Unit Developments underway at some stage in Penfield.

Now, these home builders, as I say, not a single instance in the record of a single application by those in the best position to test this ordinance.

So can again, the association of home builders derived or obtained derivatively a better right, can they assume an injury when no member has pleaded an injury, and I say again it's just -- there's a broad side attack that they've been threatened about bringing the suit.

There was a motion made here and 900 pages of material came in and not one specification on that, and apparently didn't dissuade him from trying to intervene in the suit.

So, I don't know where that statement comes in, there's just no way that I could state anything about it.

There's nothing in the record to verify a support that that if they brought the suit, they'll be in trouble in Penfield.

Now, the third group of petitioners are plaintiffs who sued in the nature of taxpayers and I don't think that I ought to address myself to that at length.

I think that simply Frothingham against Mellon and Deramus against the Board of Education are preclusive on this kind of a taxpayer suit.

Here, you have taxpayers.

In the City of Rochester who attempt -- they assert that they have to pay higher taxes in Rochester because in Penfield, there is not any tax abated housing.

Therefore, Rochester bears a greater portion of tax abated housing and increases their real estate taxes.

Well, I just want to use the word remote.

I don't think there is a specific out of pocket injury.

They don't attack a spending ordinance -- spending law statute or ordinance, nor one are concerned with taxing.

In addition to which, they don't attack one in their own municipality or they attack it in an adjoining municipality, an ordinance which this Court has held is concerned -- properly concerned with the interest it seeks to protect that of land use, and typically, the concern of local Government.

There has been no good faith showing of a pocket book injury, there are some figures that taxes have gone up, but it only gone up all over not only in the City of Rochester.

How are you going to compare that or assert that's a result of Penfield zoning ordinance, I don't know.

As I said, this is a very -- a decision here giving standing in this case would have some very, very broad far reaching and sweeping effects on the municipalities of 50 states; this is a typical zoning ordinance, pretty typical zoning ordinance and so found by the Court of Appeals for the Second Circuit.

There's a fair of any of these plaintiffs or petitioners to show a personal state in the outcome of the case.

There's a failure to show a definitive injury.

There's a failure to show a definitive factual context within which this Court can test a serious constitutional question.

I think it misses the point so clearly made in Baker against Carr that such a personal stake in the outcome of the controversy as to assume that concrete adverseness which sharpens the presentation of issues upon which the courts so largely depends for illumination of difficult constitutional questions is missing here.

Justice Byron R. White: Suppose I go at Penfield, and I shop for a house and read the papers, look at the advertisements, talk to the dealers, and I just discover there is not house in found that I can afford because there's just not kind of housing around.

Now, it make some difference out of it and your reasoning want to live with Penfield is close to some work that you pick -- suppose to a job.

Mr. James H. Hartman: That's right.

Justice Byron R. White: And you save a lot of gasoline and it's -- you got good schools there.

You think there is no standing for him to attack the ordinance?

That's --

Mr. James H. Hartman: On the --

Justice Byron R. White: You may never win and they may never win --

Mr. James H. Hartman: Well, under the facts you've given me, no.

Unless an allegation is made --

Justice Byron R. White: -- to find some houses and I couldn't find any because there's any that I can afford in town, and that's --

Mr. James H. Hartman: Not --

Justice Byron R. White: They maybe a terrible cause of action that -- how about standing?

Mr. James H. Hartman: I don't think you have it.

I think, however, you would have standing --

Justice Byron R. White: But if you did, some of these individuals would have here?

Mr. James H. Hartman: Excuse me, Your Honor.

I'm sorry, I didn't hear that.

Justice Byron R. White: If that would suffice for standing, then some of these individuals would have standing.

Mr. James H. Hartman: I don't know, I don't think they've gone that far.

Justice Byron R. White: They didn't even go to Penfield.

Mr. James H. Hartman: That's right.

They didn't even go to that far, Your Honor, and I don't think -- I think if you said I can't find housing in Penfield because I've been -- because I try to buy this property and the owner told me I'm not going to sell it to you because I don't like United States Supreme Court Justices or I don't like your color or you race, for that, you have a cause of action, you have standing.

Justice Byron R. White: I know what had happen to that cause of action.

Mr. James H. Hartman: Thank you very much, Your Honor.

Justice Lewis F. Powell: May I ask the question.

In the complaint, one of the reliefs sought is to compel the defendants to enact a non-exclusionary zoning ordinance.

I know I'm asking you ma'am.

Rebuttal of Emmelyn Logan-baldwin

Ms Emmelyn Logan-baldwin: Thank you.

Justice Lewis F. Powell: Are you serious about that you want an injunction compelling the city council to enact the law?

Ms Emmelyn Logan-baldwin: Your Honor, I think again, the question here is standing.

The lower court would be the province of the lower court to direct the appropriate relief if the injunction is granted and the declaratory judgment's granted and the zoning ordinances declared unconstitutional, there might not be any need for any further relief because the building could take place and the exclusionary barriers that exist would be eliminated.

Justice Lewis F. Powell: There are some cities without any zoning laws at all.

Ms Emmelyn Logan-baldwin: That would be true, Your Honor.

Justice Lewis F. Powell: Houston, Texas.

Ms Emmelyn Logan-baldwin: I think again the focus and the question for this Court is standing.

Have these plaintiffs, these petitioners alleged injury in fact and I think the real problem with the argument of the defendant-respondents is that they are focusing as if there had been a full trial on the merits, as if we had aired all of the ramifications of the zoning ordinance.

We have had opportunity to do so.

All of the low income minority petitioners as is confirmed in the record have actively sought to live in the Town of Penfield.

Mr. Ortiz of course didn't go to the Zoning Board of Appeals because he never had an opportunity to have either a rental or purchase property in the Town of Penfield.

Justice Thurgood Marshall: I understand that Ortiz did try to put up anything at all.

Ms Emmelyn Logan-baldwin: No, that's not correct.

He indicates in his affidavit that he search in Penfield for housing.

He finally had to move to Waylon, New York and resides in Waylon.

Justice Thurgood Marshall: Board at Penfield or any other place in the state did he apply for relief.

Ms Emmelyn Logan-baldwin: Well, he didn't go to the Zoning Board of Appeals, he look for houses --

Justice Thurgood Marshall: Did he apply to any state board?

Ms Emmelyn Logan-baldwin: Not any state board.

Justice Thurgood Marshall: City board or any other official?

Ms Emmelyn Logan-baldwin: No, and no ordinance --

Justice Thurgood Marshall: Is that true it's been implied to any official of any kind?

Ms Emmelyn Logan-baldwin: And no ordinary individual would have any relief to go to Zoning Board of Appeals to ask them to give him a particular house or anything like that.

He as a person trying to find housing simply went to look, and there is none such there.

The injury he suffers as a consequence is the extraordinary commuting to and from its job in Penfield.

The living in an environment which is subject or which has poorer schools, which has less community services and so forth.

These are real injuries I submit.

The type of injuries that this Court --

Justice William J. Brennan: (Voice Overlap) Again, Mrs. Baldwin, I think you have said indirectly that there are folks here who own or have options upon.

Ms Emmelyn Logan-baldwin: There have -- there are in the record, builders applications --

Justice William J. Brennan: That is among the plaintiffs in this suit or the applicants for --

Ms Emmelyn Logan-baldwin: They are members of organizations who are plaintiffs Your Honor.

And I submit that --

Justice William J. Brennan: Can you name particularly?

Ms Emmelyn Logan-baldwin: The Penfield Better Homes is a member of the Housing Council which is a plaintiff, and Rochester Home Builders have constructed 80% of the housing in the Town of Penfield over the last 15 years.

Justice William J. Brennan: Does that one owned or have options upon land in the county?

Now, that the record does not clearly direct itself to and there's a reason for it, Your Honor.

At the time of the defendant's motion, Rochester Home Builders have not yet in move to intervene.

There was actually no written opposition on the part of the town to the home builder's application to intervene.

So, there were no responding affidavits coming from the intervener to particularize or to expand upon their general allegations that they have a numerous occasions applied for relief from the zoning ordinance, but the town has in each occassion refused.

That again Your Honor --

Justice William J. Brennan: How about any of the individual plaintiffs.

Ms Emmelyn Logan-baldwin: The individual plaintiffs again are represented through associational efforts.

Mrs. --

Justice William J. Brennan: But do some of them, some of the individuals whether represented parties or represented by other parties?

Are there such according to this record will actually owned land or have options upon land?

Not of the low income minority plaintiffs owned or have options, Your Honor.

Thank you Your Honor, I believe my time --

Justice William H. Rehnquist: Does Rochester Home Builders itself engaged in construction, or is it a trade association whose members engaged in construction?

Ms Emmelyn Logan-baldwin: It is primarily trade association whose members engaged in construction, but it has as its purpose which is set forth in the record to facilitate the construction of housing for the entire community including low moderate income housing.

Justice William H. Rehnquist: Well, you say it's primarily on an association -- does it secondarily engaged in construction itself?

Ms Emmelyn Logan-baldwin: No, Your Honor, not to my knowledge and I don't think the record discloses that it has.

Chief Justice Warren E. Burger: The case is submitted.

Featured:

Cramp v. Bd. Of Public Instruction - Oral Argument

Tue, 25 Sep 2012 22:37:38 +0000

Case:

Cramp v. Bd. Of Public Instruction

Media File:

72_19611016-argument

Related Transcript:

72_19611016-argument

Transcript:

Argument of Tobias Simon

Chief Justice Earl Warren: Number 72, David Walter -- Walton Cramp, Jr., Appellant, versus Board of Public Instruction of Orange County, Florida.

Mr. Simon.

Mr. Tobias Simon: Mr. Chief Justice, may it please this Honorable Court.

This is an appeal from the final decision of the Supreme Court of Florida, upholding the validity of Fla. Stat. 876.05 against the contention that this statute violated the provisions of the First and Fourteenth Amendments to the United States Constitution.

This is the Act which requires that all public employees in the State of Florida, including David Walton Cramp, who is a teacher, execute a loyalty or expurgatory oath as a condition of his employment.

The pertinent provisions of that oath other than the ones that were in effect prior to 1949 which at that time simply required all public employees to swear loyalty to the Constitution and to the -- and to the United States, now require that the public employee swear that he is not a member of the Communist Party and I quote, “That I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party; that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence; and fourth, that I am not a member of any organization or party which believes in or teaches directly or indirectly the overthrow of the Government of the United States by force or violence.”

Now, the appellant, Cramp, had been employed in Orange County as a teacher for nine years when just prior to the institution of this litigation, it was realized that through some administrative oversight, he had not executed the loyalty oath.

He was approached and requested to sign the oath.

Justice Potter Stewart: How long is this statute been on the books?

Mr. Tobias Simon: Since 1949 sir.

Justice Potter Stewart: So it was there when he first became employed as a --

Mr. Tobias Simon: Yes, that is correct.

Cramp refused to sign the oath on the grounds that the State could not validly and constitutionally require that he execute this oath as a condition of his employment and for no other reason.

He brought an action in Orange County under Florida statutes for declaratory relief to declare the statute invalid and to assert his continuing right to teach school without the necessity of executing this oath.

This relief was denied to him by the Circuit Court and this decision was affirmed by the Supreme Court of Florida and this appeal then followed.

I would like to state that the issue before this Court as I understand it is not whether or not Florida is to be required to keep communists in its roles of public employees nor is the question so ably put by my Brother that Florida cannot establish reasonable qualifications for its teaching personnel or other employees.

Because however, there is always and this Court has always recognized the duty of a State with regard to its public employees to establish only and stipulate only those qualifications which are reasonable and which are reasonably designed to fit the man to the job.

Because of that requirement, we state that the issue before this Court is whether or not the qualifications imposed by Florida are reasonable and whether they bear a reasonable relationship to the position itself.

Irrespective, I wish to point out at this point in the argument whether these qualifications were imposed through the procedural device or vehicle of the loyalty oath or whether they were imposed by statute.

I think there is no issue about the fact that a state cannot impose qualifications for employment which violate due process, equal protection and this Court has unanimously stated on many occasions.

Cons --

Justice Felix Frankfurter: You argue the oath in its entirety beyond the power of the state or you emphasize when calling our attention to the oath, a particular clause?

Mr. Tobias Simon: I will emphasize --

Justice Felix Frankfurter: Is that --

Mr. Tobias Simon: I will emphasize three particular clauses of (Voice Overlap) --

Justice Felix Frankfurter: My question is not merely emphasis but do you say that no clause of this oath could stand or some could but it's mixed up with others that couldn't?

Mr. Tobias Simon: It is conceivable and I do not wish to reach the point necessarily that the first of the clauses that one must not be a communist in order to teach in the public schools.

It is conceivable that under present decisions of this Court, Florida could stipulate a qualification that no communist could be a teacher in the Florida schools.

Justice Felix Frankfurter: Well, the first one is the -- to swear to support the Constitution.

What about that, (Inaudible)?

Mr. Tobias Simon: That of course is -- that is the same oath that I am required to take and I believe that the Justices of this Court are required to take it --

Justice Felix Frankfurter: Oh, (Voice Overlap) --

Mr. Tobias Simon: -- there's no quarrel about that.

Justice Felix Frankfurter: I can conceive of even such an oath that you single out nobody in the community except the particular person or particular class that you might have a basis of proposition or question.

The second clause is I'm not a member of the Communist Party.

Would that pass your scrutiny?

Mr. Tobias Simon: We do not at this point contend that this particular qualification would be unconstitutional.

Justice Felix Frankfurter: The next one, you have indicated that it's beyond the power of the State that I have not -- will not lend my aid, support, advice, counsel, influence, you challenge that?

Mr. Tobias Simon: On at least three grounds, if Your Honor please.

Justice Felix Frankfurter: And the next one, that I do not believe in the overthrow of the Government of United States or of the State of Florida by force or violence.

Mr. Tobias Simon: We challenge that, yes sir.

Justice Felix Frankfurter: You do challenge that.

Mr. Tobias Simon: Yes sir.

Justice Felix Frankfurter: The next one, that I am not a member of an -- any organization or party which believes and/or teaches directly or indirectly the overthrow of the Government of United States or Florida by force, you must challenge that if you did the previous one?

Mr. Tobias Simon: We likewise challenge that on additional grounds to all the others.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: If I --

Justice Felix Frankfurter: I just want to get -- focus my mind to what it is that I'm going to listen to.

Mr. Tobias Simon: If I may direct my attention to the first of the clauses which Your Honor has indicated we oppose, and that is the question of that clause of the oath which states that I have not lent aid, support, advice, counsel or influence to the Communist Party?

Now, the State of Florida has specifically interpreted this clause to me that I do not presently lend aid, support, influence, counsel or advice to the Communist Party, but that I have never at any time in the unending test, done such an act.

Now we maintain and contend, regardless of the fact that this is included in a loyalty oath that this particular qualification is beyond the power of the State to require of an employee that he executes and makes such a statement as a condition of employment.

In the first place, it can hardly be alluded to as a qualification of a teacher.

We do not say that a State may not ask to secure this information but Florida has said blanketly that no person who has ever lent aid, support, counsel or advice to the Communist Party is suited to be a teacher or other public employee.

It is immaterial whether 30, 40, 50 years ago, an individual may have joined the Communist Party or lent aid, support, counsel or advice whatever those words mean to the Communist Party for one day and since that time, devoted himself to a program of rabid anti-communism, if you will, spent that time acquiring enumerable college degrees and presented himself on the doorsteps of our capital building in Tallahassee only to be told there that the law of this State disqualifies you from being either a public employee or a teacher.

Justice Felix Frankfurter: May I ask you whether the Communist Party ever appeared on the official voting ballots of Florida?

Mr. Tobias Simon: Not to my knowledge if Your Honor please.

The progressive party was there and that, in some minds, is exactly the same thing in Florida.

Justice John M. Harlan: How do you jump the hurdle, the necessity of your argument of this part, how do you jump the hurdle if the Supreme Court of Florida said in view of the allegations of the complaint, which you said that he has never given any such aid or he had no standing as a matter of state law to raise a question, why isn't that an adequate statement?

Mr. Tobias Simon: Well, Mr. Justice Harlan, what the State of Florida said was that we had no standing to raise this as a matter of ex post facto.

They said that this law was not an ex post facto law with regard to this particular appellant and they may be right.

However, what I am saying here is that this particular qualification cannot be imposed as a matter of due process and he certainly has not waived his rights by merely stating that he has never done this under the Due Process Clause to assume this would mean to say for example that Torcaso had to be an atheist in order to obtain relief from this Court.

Justice John M. Harlan: Yeah, but the Court, the Florida Court as I read its opinion said, you cannot raise your Constitutional objections to this because you have no standing in light of your allegation with your complaint?

Mr. Tobias Simon: I would respectfully submit that this particular question insofar as there is any merit to it and we do not concede that there is merit to the statement, but that any standing to sue is -- we do have standing to sue because this is a matter of due process that a man who states that he is not a communist and has never lent aid, support or counsel or advice to the Communist Party is nevertheless entitled as an American under the Due Process Clause to refuse to execute an oath which requires that he so state this.

A man for example, this Court has stated that a state cannot pass a law that no public employee may go to mass or no person who attends mass can be a public employee.

Now, I may not ever have attended a mass and yet I believe that this law is invalid and that I have a right not to execute such a note and that disqualification cannot be imposed by the State irrespective of my religion.

The fact that a law is bad, the fact that a qualification for employment violates due process, does not depend on whether the individual who is involved in the procedure, so long as he is in the class which is being effective, a non-public employee could not come to this Court and complain, but this man is a public employee.

Justice John M. Harlan: You argue in effect that this certain state ground is not one that we should recognize as an adequate state ground, that's the substance --

Mr. Tobias Simon: That is correct.

Justice John M. Harlan: -- of your argument.

Mr. Tobias Simon: Yes sir.

And I also state that if there is any merit to it whatsoever, it is restricted to the question of whether or not Cramp can claim that he is within the class that can raise the issue that this is an ex post facto law, but we rest primarily on the proposition that the asserted state ground is not a proper one.

Justice Felix Frankfurter: But I think you are casting your net too broadly if I may say so.

This Court has said again and again that if a particular individual himself, a particular individual himself could not be affected by a statute, he can claim injury on behalf of others who might be in the same class, but were not excluded by the record filed.

I think of the case in 204 U.S. I think of a lot of cases to which this Court has said (Inaudible) if somebody who is hurt by this.

I think the ground as you -- as you put it that he represents the class.

He doesn't represent a class if he is in a class by himself.

Why does he put that into his pleading?

I'm not saying -- I'm not suggesting, to be clear about it that -- that an argument can't be made but not your argument.

Mr. Tobias Simon: The --

Justice Felix Frankfurter: That's simply because he is in a class.

The point is he has taken himself out of the class.

Mr. Tobias Simon: No Your Honor.

We submit that he is within the class that is being affected.

He is within the class of public employees who are asked to comply with a particular qualification.

Now, the reason why --

Justice Felix Frankfurter: But to go to the -- perhaps one ought to hear your objection, if you go to the objection of such a class, the objection namely that they can search way back into his life, I don't know how many years back, that's why I asked you when the Communist Party was established.

He is in Florida or he may have been a member of the Communist Party of the United States, suppose he take judicial notice that -- that's got on the way 1919 or 1920 which puts a judicial notice and the litigant party came in to being, your argument then is (Inaudible) that that means that he did anything from 1920.

And thereafter, did everything to oppose that which he did in 1920, he still would be within.

But if a man takes himself out of the class but there's no such danger, then I don't think your answer to Justice Harlan's question is adequate that he is in that class.

The point is he's not in that class because he's taken himself out of that class.

I think there are other objections possibly but not your objection that he's in that class.

Mr. Tobias Simon: Well, we respectfully submit that the mere statement, the mere fact that he has come to this Court as others have not done and have stated what his political beliefs are does not remove him from the protection of the Due Process Clause, Now this Court, I do not believe will take the position that there must be a doubt in the minds of Justices before they will give benefit of the First Amendment and the Fourteenth Amendment to the litigants.

Suppose Torcaso --M

Justice Felix Frankfurter: But there's nothing (Voice Overlap) --

Mr. Tobias Simon: -- had come --

Justice Felix Frankfurter: Isn't a question of doubt in our minds.

It's a question of a litigant asking for a leave on the basis he's hurt by something and he says, “I haven't been hurt by this.”

Mr. Tobias Simon: Well, we submit that we are hurt because this is a man who should not be required to submit to a qualification which offends the Constitution regardless of whether he himself is a person who is being hurt directly.

We submit that there is an indirect hurt to him because he is a public employee.

I refer again to the example of Torcaso.

If Torcaso had come to this Court and stated that he was not an atheist, I suspect that the decision of this Court must necessarily have been exactly the same because Maryland cannot impose a religious test upon public employees whether atheist raised the question or non-atheist raised the question and I suspect that the Due Process Clause under which we are claiming here is as much available to non-communist as it is to those who have a lent aid, influence or support to the Communist Party or to those, I think this is basically the question who do not come and tell this Court as Torcaso did not come, as Garner did not come, as the attorney in the Konigsberg in the following case and test flow did not come and so this Court.

Justice Felix Frankfurter: I don't accept your starting point, you see.

I can well understand that a man like Torcaso can file or his lawyer can file a complaint in which he said this is of no hurt to me.

It couldn't possibly make any difference to me to sign it.

I'd be glad to sign it but I just want to get a ruling from this Court on whether such a statute is constitutional.

Speaking for myself, I have the greatest doubt, but I would think that presents the case of controversy before this Court.

Mr. Tobias Simon: Except that in this case, if Your Honor please, this man did not sign this affidavit and the statements that he made in his complaint were not regarded by the State of Florida as a substitute for this affidavit.

And unless he -- and until he signs this affidavit, he is not in a position to draw on public funds and I would like to add the following.

The statements that he made in his complaint do not foreclose the issue because the language that is used in this particular clause of the oath that he has not lent aid, support, influence, counsel or advice to the Communist Party are so vague, broad, general as to be actually incapable of analysis or interpretation except as in a -- except in a completely subjective manner and the fact that he stated that in his opinion he did not do these things is not a guarantee because of the looseness.

Justice Felix Frankfurter: He's not a guarantee of what?

Mr. Tobias Simon: That some Court will find --

Justice Felix Frankfurter: Now, you're talking so far as I'm concerned (Voice Overlap) --

Mr. Tobias Simon: That some Court would find that he has done exactly the same thing --

Justice Felix Frankfurter: Now, you're talking.

Mr. Tobias Simon: -- or has not done exactly the same thing.

Justice Felix Frankfurter: Now, you talk --

Mr. Tobias Simon: But this another ground why this particular language, the vagueness and Your Honor of course has dissented in both Garner and in the American Communications Association --

Justice Felix Frankfurter: But that's a very different argument --

Mr. Tobias Simon: -- on the same ground.

Justice Felix Frankfurter: -- from the one that you thought was conclusive.

Mr. Tobias Simon: I had not at that point come to that argument Your Honor.

Justice Felix Frankfurter: What you're saying is that he might sign this oath and he might subject himself to prosecution of perjury and then at least would have to litigate whether what he did not 40 years ago but two years ago could be regarded on the appropriate charge by a judge to a jury as bringing himself within these terms support, advice, counsel and influence to deny that and therefore it's a case of perjury.

Now, I understand you.

Mr. Tobias Simon: That is because the language of this particular section is incapable of actual definition and therefore as a matter of due process should not be included among the qualifications for teachers or public employees in Florida or in any other state.

The next clause of the oath is the clause which states that I do not believe in the overthrow of the Government of the United States and also that I am not a member of any organization which believes in, and this of course I think is impossible and so the persons who were at the statute added the words “word teachers, directly or indirectly the overthrow of the Government of the United States by force or violence.”

To my knowledge, there has been but one other case in which the question of belief in terms of violent overthrow of the Government has come before this Court and that was some 10 or 11 years ago in American Communications Association versus Douds.

At that time, the Court by a three-to-three decision affirmed the judgment below.

Nevertheless, Justice Vincent, Mr. Justice Vincent in writing for the majority put a gloss on the word belief and stated that the only thing that this can constitutionally mean is a belief in the objectives of violent overthrow as an immediate objective rather than as a prophecy.

And this concept has come down to us since that time.

In Speiser -- Speiser versus Randall, although that dealt with the question of advocacy, this Court insisted upon and secured from the Attorney General of California the statement that the advocacy therein involved was advocacy not as an immediate objective -- not as a prophecy but as an immediate objective.

And if it is true for advocacy, of course, it must necessarily be true for inner beliefs which this Court Douds and all time subsequently stated are in violence.

This position was urged before the Supreme Court of Florida and was ignored, but we go on to state that regardless in our opinion and we so contend to this Court that regardless of any gloss, any shaving that can be made of this word believe that the concepts of belief and a man's beliefs are not the function or the power of Government to inquire into.

Neither this Court nor any arm of Federal Government, nor the State Government of Florida, can call into play and demand to know what are a man's beliefs as a condition of his employment.

And we submit that any requirement as a qualification for public employment that a man divulge his beliefs must be unconstitutional and invalid under the provisions of the First Amendment.

The old story of Dionysus who had a man killed for dreaming, that he killed somebody would I think follow in this case and I think that this Court should strike down any qualification for employment that requires an individual and especially a teacher fit within a stereotype concept of belief.

And again --

Justice Potter Stewart: Aren't you making a pretty broad argument?

Certainly, if you want to hire a teacher to teach geography, you'd be -- it would be irrelevant if he -- if he happened to believe that the world is flat, wouldn't it?

Mr. Tobias Simon: No sir.

I do not believe and we -- and it's our position that a man's beliefs are in violence.

The State cannot call forth any statement from him as to his beliefs as a condition of employment.

I think that persons, I think that Christian Science practitioners are perfectly capable of teaching medicine in a medical school.

I think that persons who are biblical fundamentalist are perfectly capable of teaching --

Justice Potter Stewart: Evolution.

Mr. Tobias Simon: -- evolution in a college.

I think that a catholic president for example is perfectly capable of expressing the viewpoint that there should not be public aid to education or can support a program of birth control in and throughout the nation.

In other words, I do not believe that there is a necessary corollary that what a man believes will obviate or will excuse him from the sworn duty to follow a prescribe curriculum whether he'd be president or whether he'd be a janitor or a public school teacher.

Justice Felix Frankfurter: Are you saying -- are you suggesting it's far a field that --

Mr. Tobias Simon: Yes sir, I -- I --

Justice Felix Frankfurter: -- what I want to know -- what arguments imply.

You're suggesting that a state university could not avow refusing to employ a conscientious believer in Christian Science to its medical faculty, is that what you're saying?

Mr. Tobias Simon: Yes sir.

And I believe that Your Honor said something to the same effect --

Justice Felix Frankfurter: I hope I didn't.

Mr. Tobias Simon: -- in Garner [Attempt to Laughter] where you stated that man cannot be asked to swear about something they cannot be expected to know, such a demand is at war with individual integrity.

It can be no more justified than the inquiry into belief which Mr. Justice Black, Mr. Justice Jackson and I, deemed invalid in American Communications Association versus Douds.

Justice Felix Frankfurter: That means that the State of Florida can't refuse to employ a plumber on its law faculty because he is expected to know about law, is that it?

Mr. Tobias Simon: No sir.

The qualification of knowledge is an entirely different proposition from the qualification of the --

Justice Felix Frankfurter: In the first -- we'll reject the whole basis on which a medical school is conducted for good or bad reasons, is violating -- the state is violating the First Amendment.

I think you'd --

Mr. Tobias Simon: I do not --

Justice Felix Frankfurter: -- you'd get more mileage if you went down with some another argument.

Mr. Tobias Simon: Well, we state that in this particular instance, a man's beliefs as to violent overthrow, do not serve as a basis for excluding him from the faculty in a public school system in Florida for two reasons which we have stated; one, because the concepts of belief are beyond the power of the state to inquire into, and secondly, and certainly, and this Court has held on this point that the only type of belief in this area which can serve as some basis for inquiry is a type of belief or advocacy into the overthrow of the Government as an immediate objective rather than as a question of prophecy.

Justice Felix Frankfurter: I do not -- I do not understand why on your theory, you do not challenge the requirement of denial to become a member of the Communist Party?

Mr. Tobias Simon: Because, I believe that this Court has already foreclosed that question.

I think that the State has the power to prohibit from its employ and I believe Your Honor did so state that a state can prohibit from its employ, Your Honor stated this in your dissent in Garner, any person who seeks to overthrow the Government by force or violence or is -- or are knowingly members of organizations engaged in such endeavor.

Justice Felix Frankfurter: But you are challenging the force and violence part of this oath.

Mr. Tobias Simon: Not the force and violence part. I challenge the --

Justice Felix Frankfurter: I thought you're (Voice Overlap) --

Mr. Tobias Simon: -- ability of the State of Florida to require that a man express his beliefs as distinguished from his actions in membership, as distinguished possibly from his advocacy, written statements or oral statements but I maintain that it has always been the concept of our Constitution and of this Court that individual integrity requires that an individual's unspoken, unadvocated, unwritten beliefs are his and belong to him privately and solely.

Justice Felix Frankfurter: But did I understand you correctly to say that you challenge the clause that, “I do not believe in the overthrow of the Government of United States by force or violence.”

Mr. Tobias Simon: Yes sir because it states the word ‘believe.'

Now, to state that I do not advocate the overthrow of the Government by force or violence is an entirely different matter provided of course, and I make the same proviso on the belief clause, provided that by advocate both legislature and the courts of Florida mean as an immediate objective as distinguished from a prophecy.

Justice Felix Frankfurter: And so Florida can refrain to appoint somebody to teach civics that it has called in so many institutions who says, “I firmly believe -- I do believe in the overthrow of the Government of United States by force or violence.”

Mr. Tobias Simon: I would say --

Justice Felix Frankfurter: Is that right?

Mr. Tobias Simon: -- that the minute -- no sir, because as soon as this is stated, it now becomes a matter of record, it is a matter then of advocacy.

And on this proposition, I think this Court has ruled that you cannot discharge an individual or refuse to hire an individual where advocacy of an idea, as a matter of long-term prophecy as distinguished from an immediate objective is the criteria.

Justice Felix Frankfurter: Well, I don't understand you quite.

Suppose this oath was submitted to somebody who satisfies all the requirements; all the other intellectual requirements for having him to teach civics to the institutions of Florida but he says, “I cannot conscientiously sign the clause concerning the oath if it contains the clause, I do not believe in the overthrow of the Government by force or violence because I do believe in it.”

Mr. Tobias Simon: That I believe also can be an entirely different matter.

The State has the right to inquire of him as to what his beliefs are as a means of measuring his competency and his ability to act as a teacher but to blanketly state that no person who does not sign this oath can be a teacher, I maintain and here we come of course to the distinction --

Justice Felix Frankfurter: You mean -- let's see if I understand, if it -- if a teacher to be hired for civics could be required to sign this, but a teacher of mathematics could not.

Is that the point?

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: What is the --

Mr. Tobias Simon: Neither -- neither a teacher -- no teacher and no public employee can be subjected to a state qualification or employment wherein belief is the sole criterion upon which he is to be hired.

Justice Felix Frankfurter: Well then, I am assuming that they've put him through the ropes as to where he studied and what books he's read and all the rest and also this that you must sign an oath that you do not believe in the overthrow of the Government by force or violence.

You say that's alright, don't you?

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: That's wrong.

Mr. Tobias Simon: That is correct.

That is wrong.

Justice Felix Frankfurter: But when is it alright?

Is any time alright?

Mr. Tobias Simon: It is, in my opinion, never alright for the state to inquire into the man's beliefs as a condition of his employment.

Justice Felix Frankfurter: Well then let me ask you again.

If a person is under consideration to teach and to be employed as a teacher of civics in a Florida institution, high school or college, and he has to sign an oath, I do believe – I do not believe in the oath of the Government of United States by force or violence, may the state exact such an oath or not.

Mr. Tobias Simon: No sir.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: Because this involves the man's beliefs.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: And these beliefs cannot be for -- cannot form the basis of an exclusion from public employment.

Now, I have stated that these qualifications, the retrospective qualifications, the matter of belief and advocacy which are contained in the Florida oath are bad.

I maintain that these qualifications are invalid and are unconstitutional because they violate due process, there is no place for penitence or return, they violate the guarantees of the First Amendment which keep I believe a man's beliefs and right to advocate in violence and if these qualifications had been enacted by statute, those qualifications would not have been proper.

We further maintain that because these qualifications are embodied in a loyalty oath which is presented to some 40,000 public school teachers and many more times that number of public employees within the State of Florida, that the requirement of the loyalty oath itself as a procedural device is invalid.

Now, the reason why we maintain that position is because the requirement that a man execute and oath as distinguished from complying with certain qualifications, imposes upon him the necessity of submitting his associations, his beliefs, his concepts to the State in order for him to secure a position.

Unquestionably, the execution of a loyalty oath is a restriction upon the privileges and rights of association, thought and belief guaranteed by the First Amendment.

If we are to say that the interest of a state in prescribing qualifications are so important as to outweigh the interests of the individual then it might be contended that the means of achieving these qualifications, the means of establishing these qualifications in gaining this information, can be utilized through the means of the loyalty oath.

But this, I believe, runs afoul of the concept that was established or utilized in Shelton versus Tucker where this Court stated that where there are alternative means of acquiring information, where there are alternative means of achieving an end desired by the State, a second balance must be struck if one method utilizes less danger and less harm or establishes less harm for the individual's rights then that is the method which must be chosen.

Now, we submit that to -- that to turnover to the entire body of public employees in the State of Florida, an oath requiring that they give their associational ties and an expression of their beliefs and concepts even if for example, this Court were to say that they could have this information in the first place, that this is not the proper method of achieving this, that this has a chilling effect upon their rights, upon their associational rights as guaranteed under the First Amendment and this Court I believe has prescribed and has shown the method that can be utilized to prescribe these qualifications and that is the matter of the employer-employee investigation.

And this Court has on several occasions, in Beilan, Lerner versus Casey, Konigsberg, Anastaplo, Nelson and Globe cases has stated that an employee, if challenged or questioned must come forward and give full and frank answers.

And we submit that this is the method that Florida must utilize because if a teacher -- if there is a question about a teacher or a public employee, then it is well within the province of the State to rid itself of communists or other incompetent personnel to call the individual in.

Some due process at least must be observed, some type of hearing must be given; something is afforded this individual.

The interests of the individual can be protected.

The demands upon the state are small and this method can be utilized far better than the blanket loyalty oath because it is our position that if we give at this time, blanket support for the concept of a loyalty oath, then through this device, each and every employee can be required to submit to doctrines in which the school boards or the government officials feel are important.

We can be required to submit in signing oaths involving beliefs or disbeliefs or membership or nonmembership in organizations which are not the Communist Party, organizations which are unpopular in Florida or elsewhere.

Justice Hugo L. Black: May I ask you a question?

Mr. Tobias Simon: Yes sir.

Justice Hugo L. Black: I haven't quite understood some of the lines you've drawn.

Suppose a man was about to be appointed to a job of this Government, he would have to pass on the jobs desired by others.

He should be asked to swear that I believe that no person should be discriminated against on account of race, color or religion.

Would you see a difference between that and the oath you would take that would be required if it said that I will not discriminate on account of race, color or religion, one being a statement of what he believed and one being a statement of what he would do, is that the line you're drawing?

Mr. Tobias Simon: Yes sir.

Requiring a man's actions are of course -- would -- the state can require a man to act, an employee to act in a way in which he desires, but a state cannot require that a man believe a -- in a particular thing.

We also have laws in our -- in Florida, require -- prohibiting certain types of discrimination based on color, but I do not believe that the State has got the power to make this individual swear that he believes that discrimination is bad.

I think his beliefs are his own and so long as he is doing a proper job then this is all that can be constitutionally required of him.

Justice Felix Frankfurter: Do you think of -- do you think a man's conviction of what he promises to carry out -- about what he promises to carry out has no relation to the reliance one can place upon his capacity to carry out or to be subject to carry out.

Mr. Tobias Simon: Mr. Justice Frankfurter, I have not mentioned --

Justice Felix Frankfurter: I thought we've had a great deal of --

Mr. Tobias Simon: I have not mentioned a man's --

Justice Felix Frankfurter: (Voice Overlap) talk about that to the contrary.

We want people actually to believe certain things as an assurance that they will see to it that having power, they will carry that duty into action.

Do you think men are (Inaudible) like that if they say, “I will do this --” you can count on him to do it although he pleaded the opposite?

Mr. Tobias Simon: No sir.

I think when a man promises or undertakes to do a job than he is required to do it.

But I feel that --

Justice Felix Frankfurter: You can count on that no matter what?

Mr. Tobias Simon: I feel that --

Justice Felix Frankfurter: That's ultimately so.

Mr. Tobias Simon: -- that the danger to this country and to our institutions of having government inquire into a man's beliefs and stipulating that a man must believe in a particular manner as a condition of employment can lead to far greater danger than the possibility that a man might not do a job even though he has sworn to do it because he doesn't feel within himself that this is the way he would like the system to be.

We might all feel very well that a man who is going to be a notary public should believe in God because he must administer an oath, but that is not to say that the State has got the power to require that he believe in God as a condition of this.

Justice Felix Frankfurter: There may be a difference of opinion as to what a man's belief regarding the ultimate mysteries of the universe.

That's a very different thing from saying that a man who is charged with a duty shouldn't be expected while legislation is written.

We have a number of enactments of Congress, the PVA I believe is one, Justice Black will correct me, but I think that's one if the person to be appointed by the President should be a man who has faith and conviction in the particular enterprise and therefore as an extra energetic impulse to carry out that enterprise, isn't that true?

I believe that's true.

Justice Hugo L. Black: I don't know precisely what the position is?

Justice Felix Frankfurter: But there are several such things that the appointees by the President should be people who believe in the policy which they're called upon to execute.

Mr. Tobias Simon: I do not say that it is not desirable to achieve this.

What I -- what I do state, however, is that the State, so long as there is no expression of a man's beliefs and as long as there is no reduction of his duties on the particular job that he has to perform, that the question of belief is not within the realm of Government to inquire into or to prohibit.

Justice Hugo L. Black: Without getting into this, the soundness or the unsoundness of your position that I was just trying to clarify; as I understand, what you're saying is that the Congress would have passed a law requiring all candidates for Congress or the Senate to swear that they believe in the operation of Government without any special discrimination against any group that that would not be a good requirement and -- but that it would be quite different if they required him to swear that he would not conduct his office in such way as to deprive that.

That is the line you're drawing whether good or bad.

Mr. Tobias Simon: That is precisely the line we are drawing, yes sir.

We might state also that going back in this picket of the belief in violent overthrow of the Government that one can, I believe, without being a disloyal American believe that if circumstances and conditions obtained that existed were so bad that the only resort to correction was violent overthrow then this does not necessarily make him a bad American.

It does not necessarily make him unfit today when he states that conditions are good and are favorable and that conditions can be rectified in a proper and constitutional manner.

This does not make him a person who is incapable of holding public office or public employment.

Justice Hugo L. Black: I assume you're taking, arguing literally which maybe a wrong way to argue, a statement made by Mr. Justice Roberts in one of the cases, I've forgotten which one, substantially to the effect that a man's beliefs are empowered, but his conduct can be regulated for the good of society.

Mr. Tobias Simon: Absolutely and I'm also taking up the statements that were made in the Anastaplo to exactly the same effect where this young man as an attorney for example, stated that he would not subscribe to the proposition that he did not believe in the overthrow of the Government by force or violence under certain circumstances that might exist at some long time in the future, but it was quite clear that he believed that these circumstances were not present within our society or our civilization at the present time.

Chief Justice Earl Warren: Mr. Simon, we'll reduce it to very simple terms.

You -- you make a distinction I take it that it is perfectly proper to require a public employee to swear that he will support the Constitution of the United States, but that it is improper to compel him to say that he believes in every article of the -- of the Constitution of the United States as a prerequisite to getting a public job.

Mr. Tobias Simon: Yes Your Honor.

Chief Justice Earl Warren: There -- I point that out because there are a great many people today who are in the news all the time, claiming that the provision for an income tax is the work of communism in this country and he could demand who had that belief could hardly take the kind of an oath that is presented here.

Mr. Tobias Simon: I --

Chief Justice Earl Warren: There are others who believe that the provision allowing women to vote is wrong.

There are people who don't yet believe in the direct election of the United States Senators, but if all those people can -- would be debarred because they believe that way even though they conscientiously would take an oath to support the Constitution of the United States, it would debar a lot of people, wouldn't it?

Mr. Tobias Simon: I hardly need to add Your Honor.

I agree with Your Honor's statement, I hardly need to add that in Florida, there are a great number of people who feel that some of the decisions of this Court are in precisely the same light that you have cast under these other amendments to the Constitution.

Chief Justice Earl Warren: Yes.

Mr. Tobias Simon: And it seems to me that there we have persons throughout our state government, sworn to uphold the Constitution and the decisions of this Court interpreting the Constitution who nevertheless do not believe in the decisions of this Court and believe that they are correct or proper or should have been issued in the first instance.

Justice Felix Frankfurter: Mr. Simon does a (Inaudible) -- if one takes an oath to support the Constitution, he takes an oath to support the whole Constitution.

Mr. Tobias Simon: Yes Your Honor.

Justice Felix Frankfurter: And one of the important provisions of the Constitution is the mode by which things you don't like in the Constitution can be taken out of the Constitution and the mode in the Constitution which is set forth is that changes must be made in an orderly way and not by force and violence.

And you say that a state can say that you must at least agree that the changes that you want to have come into being, the things you don't like -- you don't have to like everything in the Constitution, but there's a provision the Constitution which says if you don't like it then get busy and get it repealed.

Mr. Tobias Simon: But you must support it.

You must --

Justice Felix Frankfurter: And therefore, you say a state cannot ask a man to say, “I believe in the Constitution including that provision of it that the things you want to take out, you should take out by reason and votes and not by force,” isn't that right?

Mr. Tobias Simon: I -- I do not feel that that is anymore consistent than requiring that a man working to amend the Constitution be required to support it during the time that he is amending it.

Now, what Your Honor has stated maybe so and the decision of this Court indicated it was so for an applicant to a bar which is of course within the peculiar ability of a Court to set as to the qualifications of membership of attorneys before a bar.

But I do not think that this general requirement should carry over into the hundreds of thousands of public employees throughout the country because I think that then we will obtain and secure a situation in which all manners of beliefs are going to be inquired into and are going to be required to be set forth.

Justice Felix Frankfurter: That's a different argument.

I'm merely suggesting that a man can shout from his -- from the House top that he doesn't like being compelled and he can shout from the House top that he thinks it was a great mistake to give the women to vote, that doesn't mean he can go out and smash things up because the Constitution indicated how he can bring his disagreements with specifics into -- into realization.

Mr. Tobias Simon: I assure Your Honor I am --

Justice Hugo L. Black: I don't understand that you disagree with that.

Mr. Tobias Simon: I'm sorry sir.

Justice Hugo L. Black: I didn't understand if you disagree with that.

Mr. Tobias Simon: No sir.

I --

Unknown Speaker: (Voice Overlap) --

Mr. Tobias Simon: I assure Your Honor that I am not proposing that Mr. Cramp who was a perfectly good teacher until five minutes before he was presented with this oath or five minutes after he go out and smashed things up.

What I am saying is that if he was a good teacher, he was a good teacher for nine years without the state knowing the first thing about his beliefs.

Justice Felix Frankfurter: And knowing everything --

Mr. Tobias Simon: And I --

Justice Felix Frankfurter: -- about Mr. Cramp.

All I'm suggesting is that it doesn't prevent anybody from expressing the most vehement disagreement with any specific provision of the Constitution and yet to require him to say that he wants the change made by the way in which the Constitution has indicated changes should be made.

Mr. Tobias Simon: Well --

Chief Justice Earl Warren: Mr. Simon, but -- also, I think there are some states in -- I'm trying to think my own, I ought to know because I took the oath a good many times, but I think there are a good many of them that require a man to -- to take an oath that he will not only support the Constitution, but the laws of the State of California.

Now, they don't carry, the laws don't carry that implicit thing in them for -- for repeal Mr. Justice Frankfurter has -- has been talking about.

But I suppose that when I took the oath to support the Constitution of the State -- Constitution and laws of the State of California that I wasn't saying that I believe in the wisdom and the policy of every law that was on our statute books.

I took the oath that I would support them because they were on the statute books and there is a difference between belief in what you will -- what you will do as a public official.

Mr. Tobias Simon: I sincerely hope so Your Honor because that is why I am here.

That is what --

Justice Felix Frankfurter: Nobody has been asking you to say that he believes in all the laws of the State but --

Mr. Tobias Simon: But this --

Justice Felix Frankfurter: -- believing in the Constitution is a very different thing because that's an organic document which has the means of some correction within it --

Chief Justice Earl Warren: The dis --

Justice Felix Frankfurter: -- and the statute doesn't.

Mr. Tobias Simon: Oh I --

Chief Justice Earl Warren: So the distinction without a difference.

Justice Hugo L. Black: What percentage of the people do you suppose do believe that every single provision of any state constitution?

Mr. Tobias Simon: I do not understand the -- these concepts of believing it.

Justice Hugo L. Black: I'm not talking about what's supported.

Mr. Tobias Simon: I -- I --

Justice Hugo L. Black: I recall once from the -- many constitutions have provided that there's no liquor should be sold.

I'm just asking what percentage would you make of the people that take an oath soundly and truthfully, they really genuinely believe that every provisions of every state constitution --

Mr. Tobias Simon: Present company excluded of course, Your Honor, I would venture to say that probably nobody does.

I do not think I have much time left.

Justice Felix Frankfurter: Why do you present company?

Mr. Tobias Simon: Well sir I --

Justice Felix Frankfurter: Because every provision the Constitution has an amendment written into it that if you don't like it get it repealed.

That's also part of every provision.

Justice Hugo L. Black: For a man might try to enforce it and still want to -- and get out and try to get it repealed, might he not?

That frequently have been, doesn't it?

Mr. Tobias Simon: Yes Your Honor.

Justice Hugo L. Black: I have known it to happen.

Mr. Tobias Simon: I would like to reserve my final time for rebuttal.

Chief Justice Earl Warren: You may Mr. -- you may Mr. Simon.

Mr. Wells.

We haven't much time but you can get started.

Argument of J. R. Wells

Mr. J. R. Wells: Mr. Chief Justice, may it please the Court.

It will be my purpose to take up the several clauses of this oath one by one but before I do, I want to call particular attention to the fact that we do not have in this case the kind of situation that was involved in the Wieman versus Updegraff where scienter was construed by the Oklahoma Supreme Court as not being implied in the Oklahoma statute because both prior to the time this oath was submitted to Mr. Cramp for execution and in the course of this case, the Supreme Court as well as the trial court here, specifically held that scienter was implicit in the provisions of the statute.

In going back to the Wieman versus Updegraff case, that was in 1952 that this Court held at an Oklahoma statute requiring a specified oath on the basis of -- was in that -- on the basis that the Oklahoma Supreme Court had held that knowledge was not a factor under the Oklahoma statute.

Chief Justice Earl Warren: We'll recess now Mr. Wells.

[Recess]

Mr. J. R. Wells: May it please the Court.

Just before adjournment, I made mention -- excuse me -- of the case of Wieman versus Updegraff decided by this Court in 1952 in which this Court held invalid an Oklahoma statute because scienter had been -- or knowledge had been held by the Oklahoma Court not to be a factor under the statute.

In the -- two times before this Court had decided the Garner case in which this -- in which knowledge was not referred to in the ordinance there under consideration, but the Court had sustained the ordinance stating we assume that scienter is implicit in each clause of the oath.

And in the Wieman case, this Court commented regarding the Garner case of -- that one of the attacks made on the oath in that case, that is the Garner case was that it violated due process because its negation was not limited to organizations known by the employee to be within the prescribed clause and then the Court said that this argument was objected in that case because we thought justified and assumed that scienter was implicit, each clause of the oath.

In 1957, more than two years before the oath was presented to appellant here for execution.

The Florida Supreme Court had before it the case of State versus Diez in which there was involved an indictment for perjury in connection with the making of an oath under a statute.

And in that indictment, there it was not alleged that the statements were willfully false or anything about the employee having the -- particular individual having knowledge of the subversive nature of the activities.

The -- in holding the indictment defective for one of those allegations, the Court said, this conclusion that is that the indictment was defective does not lead us to a decision declaring the act unconstitutional because we think it is inherent in the law that when one takes the oath, that he has not lent aid, advice, counsel and the like to Communist Parties represent an oath he had not done it -- with knowingly.

And the Court in the discussion in the Diez case discussed both the Garner case and the Wieman case when one of the complaints in the -- complaint by appellant here, in his complaint, was that the Florida statute did not have the element of scienter.

The trial judge said that that contention was not well founded and then quoted from the Diez case.

In the --

Chief Justice Earl Warren: Mr. Wells, in that -- in that case, what phase of the oath was alleged to be precarious --

Mr. J. R. Wells: The lend and aid, support and --

Chief Justice Earl Warren: I beg your pardon.

Mr. J. R. Wells: The lending of aid, support and so forth to the Communist Party in the past.

Chief Justice Earl Warren: What did it allege?

Mr. J. R. Wells: What did the indictment allege?

Chief Justice Earl Warren: Yes.

Mr. J. R. Wells: It merely alleged the fact that he had lent aid, support and so forth but there was no allegation regarding the fact that it was knowingly done or the willfully done it.

And --

Chief Justice Earl Warren: What facts were alleged?

Mr. J. R. Wells: Just the --

Chief Justice Earl Warren: The conclusions?

Mr. J. R. Wells: The fact of lending aid and support, but nothing with regard to knowledge or willful.

Chief Justice Earl Warren: Yes, well, was it just conclusory that -- that he lent his aid and support but -- or did they charge -- charge that he had -- had given some specific support.

I just didn't (Voice Overlap) --

Mr. J. R. Wells: My recollection is that it was in general terms, but I have the case here.

Chief Justice Earl Warren: Well, its -- if you don't --

Mr. J. R. Wells: I don't recall exactly but I think it was in general terms.

Justice William J. Brennan: The attack on the indictment alone or was it after a conviction?

Mr. J. R. Wells: It was attack on the indictment.

The indictment is being held to be insufficient by the trial judge and there was an appeal to the Supreme Court from that decision of the trial judge.

And --

Justice Felix Frankfurter: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: Forgive me for interrupting you.

I didn't hear Mr. Simon in the course of the argument raise the question of scienter so I assumed you accept --

Mr. J. R. Wells: That's --

Justice Felix Frankfurter: You accept the state court's decision that scienter is to be read into the statute and therefore the statute comes here with that -- with that authoritative interpretation of your court.

Mr. J. R. Wells: That's my assumption because I don't read any of his -- either his jurisdictional statement or his brief as raising any question of scienter.

Justice Felix Frankfurter: I just wonder whether your appeal must be taking your time to answer an argument that is --

Mr. J. R. Wells: It may be that I am Your Honor.

Justice Felix Frankfurter: Not that it's been abandoned but he just accept (Voice Overlap) --

Mr. J. R. Wells: And if so, I apologize.

I just wanted to make it clear that scienter was not -- the absence of scienter in the Florida statute was not effective.

Chief Justice Earl Warren: But can you apply that rule of scienter to beliefs?

Mr. J. R. Wells: I apply it Your Honor that he's -- it's got to be a willfully and knowingly false.

In other words, that he has not -- that if he does not -- unless he is willfully and corruptly swearing to it that there could be a prosecution on it.

That's a way -- that's the way I apply it Your Honor.

In other words, there has got to be knowledge of the -- the facts that it is a false statement of belief that it's bona fide that there couldn't be a prosecution of it, but turning then to the allegations of the -- of the statements that have to be in the oath under the Florida statute.

I understand no question is raised with regard to the first statement after the support in the Constitution and so forth that I am not a member of the Communist Party that it is conceded by opposing counsel that that is not an invalid requirement in an oath of this kind.

So that brings it to the second clause or the next clause following that that I have not and will not lend my aid, support, advice, counsel and influence to the Communist Party.

Now, as I understand, the question is put -- is quite well eliminated as to any question that could be raised by somebody else, not a party to this suit.

In other words, as to whether this is a bill of attainder on ex post facto law as to somebody else.

It is not involved here where appellant has alleged that he has never lent aid, support, advice, counsel and influence to Communist Party.

But -- and in our brief, we have made the subsidiary contention that even if that were before the Court that that could be sustained but in view of the fact that it is so clear that he can't raise it, I'm not going to take the time on argument of going into that.

But --

Chief Justice Earl Warren: Would it --

Justice Felix Frankfurter: Are you --

Chief Justice Earl Warren: Go ahead please, please.

Justice Felix Frankfurter: Are you going to argue what you call a subsidiary point that in case he is in no position that the stand -- put the standing problem to one side?

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: And assume it weren't in this case, I understood you to say a minute ago that if that were so, you would also defend -- you would defend the power of Florida that as – (Inaudible) anybody else whom it appoint but assume a teacher, but I have not -- will not lend my aid and support, advice to the Communist Party.

Mr. J. R. Wells: I would Your Honor on the same theory on which the Hawker case was decided and the same theory on which --

Justice Felix Frankfurter: In what case?

Mr. J. R. Wells: The Hawker -- the -- involved in --

Justice Felix Frankfurter: New York?

Mr. J. R. Wells: Yes sir, involving the -- not --

Justice Felix Frankfurter: You have to get a license to be a hawker.

Mr. J. R. Wells: He practiced in Madison and he had committed an abortion 15 years before the Act was passed and yet it was held to be valid to prevent him from practicing medicine and on the same theory on which the DeVeau case I believe it was, was decided two or three years ago by this Court involving the union officers on the Waterfront in which ex-felons were precluded from being union officers notwithstanding the fact that they had been convicted many years before.

Now, I realize that the (Inaudible) case involving an attorney in either Illinois, I believe Illinois or one -- some state has to be taken into account in connection with that where there was just the member of the Communist Party many years before.

But I do think that in view of the element of scienter here, and that you can sustain so far as the school teacher is concerned not requiring the pupils around the hazard of whether a reform has been bona fide where he has knowingly aided a subversive organization in years gone by.

Justice Felix Frankfurter: Let me ask you this question Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: I suppose your state university is dependent on state funds for its activities.

Mr. J. R. Wells: Largely so, yes sir.

Justice Felix Frankfurter: Well, suppose Mr. Simon said there never was a Communist Party on the electoral ticket in Florida.

Mr. J. R. Wells: I don't recall that definitely but I don't think there was.

Justice Felix Frankfurter: Well, suppose the Communist Party of United States in 1924 or 1925 found out that there was a campaign on to increase the appropriations for the University of Florida, to double the appropriations of the previous years, I don't know whether they did it one year or two years.

Two years?

Mr. J. R. Wells: Two years Your Honor.

Justice Felix Frankfurter: Suppose there was up a referendum to issue bonds to double the appropriations to the University of Florida, and suppose the Communist Party had sent in its most vocal leaders to support such an amendment and made a lot of noise in support of it.

And suppose some members of the faculties in University of Florida were on the same platform with the Communist Party leader, solely -- had a meeting solely restricted to promoting the adoption of that bond issue amendment.

Now it could be argued that thereby he was aiding -- couldn't it be argued that he was aiding or couldn't it be fairly argued that that was an aid of the Communist Party because he lent his prestige and his respectability, etcetera, etcetera, etcetera. Couldn't that be argued?

Mr. J. R. Wells: I felt that Your Honor that that would come within it for the reason that I don't think parallelism of action would -- I think it would --

Justice Felix Frankfurter: Well it doesn't --

Mr. J. R. Wells: -- be an aid to the Communist Party.

Justice Felix Frankfurter: Well, when you say you doubted it, I -- am I -- is it fair to imply that it would raise a question and a conscientious lawyer could argue that's an aid?

Mr. J. R. Wells: Well, it's hard to --

Justice Felix Frankfurter: At all events, it isn't like the Hawker case or the DeVeau case where the Court had before it the consequences that a state may be allowed to draw from a criminal conviction and the relation of such a criminal conviction to a subsequent position of responsibility.

Mr. J. R. Wells: You don't have the element of a conviction.

No, Your Honor.

Justice Felix Frankfurter: But it only meant words like aid or support, for instance, support if a distinguished member of the University of Florida is on the same platform under the auspicious of the Communist Party sponsoring increased appropriations for the university.

It could be a man wouldn't -- wouldn't look ridiculous or wouldn't be left out of the Court if he was totally supporting the Communist Party, would he?

Mr. J. R. Wells: Well, of course it's -- it's hard to say what a -- a man would be left out of (Inaudible) on various things --

Justice Felix Frankfurter: But (Voice Overlap) --

Mr. J. R. Wells: -- but I don't believe that would be a reasonable (Inaudible) --

Justice Felix Frankfurter: But if --

Justice William O. Douglas: If you had -- if he had six of them or eight of them or ten of them of the same quality, you wouldn't hesitate to take your case on that -- on parallelism, would you?

Mr. J. R. Wells: I don't believe that unless there was a direct element of aiding and supporting in connection with a -- contributing toward the subversive aims, I don't believe that that could reasonably come within it.

Justice Felix Frankfurter: But Mr. -- Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: The trouble is in your -- in your fair mind and conscientious way, you have a like to say you don't believe it, but the difficulties that I had and why, it has simply been -- what was it, Updegraff and Wieman or the other way around or was it a conscientious man taking an oath wouldn't know what he was taking an oath to.

He might say, well, I'm -- he -- I was once on a platform with Foster or what's the other fellow's name, the leader and I don't know if I swear, I never did.

It might hold me up one of these days and said, “Well, weren't you the chairman of the meeting at which -- with you meeting Foster, you made a (Inaudible) haranguing speech?

He wouldn't know, would he?

I mean a conscientious man, particularly if he isn't a lawyer hasn't the great advantage that you and I have of knowing how we play with words in the law, he might pause, wouldn't he?

Mr. J. R. Wells: Well, of course it's possible Your Honor but there are many matters that come up in connection with laws and indefiniteness where arguments can be made one way or the other and yet the laws can be held to be of sufficient depth.

Justice Felix Frankfurter: Yes.

You're asking him to swear to this thing and I'm just putting it to you.

Mr. J. R. Wells: But the element of scienter is in there Your Honor.

Justice Felix Frankfurter: Yes I know, with knowledge.

He has all the knowledge --

Mr. J. R. Wells: But does he -- and does --

Justice Felix Frankfurter: Yes but I was on that platform (Voice Overlap) --

Mr. J. R. Wells: Well, unless he intends to aid the Communist Party as such.

I don't see how he could possibly come within it.

Justice Felix Frankfurter: Well, I think from personal experience, I was once a chairman at a meeting in Boston way back, and the purpose of the meeting was to urge the Government of United States to recognize the soviet country, the present regime in Russia long before we did.

And we had all the parts of it or mix bag of speakers.

And I can assure you all sorts of inferences that might seem to you and did to me at the time ludicrous could be drawn from such chairmanship, was drawn.

Now, if I have to swear lawyer that I am, if I had to swear that I never hated the Communist Party because of the communist speaker at that meeting, in Nathaniel Hall or it was Faneuil Hall, the cradle of liberties so-called, I would fall even as a lawyer in saying I don't want to be -- oh yes, I know that I could not know sensible juries convict me but then juries aren't always sensible, no Supreme Court would sustain the conviction but then the Supreme Court aren't always sensible at least in the eyes of the various people in distant times.

It's a problem that confronts the man who's asked to take an oath which has these dubious possibilities.

Mr. J. R. Wells: Well, I realize that a contention can be made that the -- that there's too much of an indebtedness in that Your Honor but I -- when you have the scienter as a factor in it, I don't believe that that is sufficient that the oath should be declared unconstitutional on the basis of indebtedness.

Justice Felix Frankfurter: It wasn't your -- it wouldn't -- doesn't it make a difference how -- how needed this is, how essential this is to protect the interest that you have a right to protect from my point of view.

It means at any time.

Suppose you say -- if it's scienter, suppose you say it makes a difference whether its 40 years or two years or three years or five years, doesn't it?

And when you have a territory where conscientious men may forge long before they sign in the affidavit which has potentialities of perjury in the system, I don't mean conscious perjury but you've got a problem, haven't you?

At least that's what -- that's what's we had in Wieman against Updegraff and you have to hurdle that case, don't you?

Mr. J. R. Wells: Well, in that case though, the knowledge was held not to be a factor under the Oklahoma statute by the -- by the Oklahoma Court.

In other words, that was the difference between that case and our situation that is -- that that --

Justice William O. Douglas: It had no --

Mr. J. R. Wells: -- differences in the statute.

Justice William O. Douglas: You haven't -- maybe you have but I have -- I haven't been able to follow.

Disentangle the -- what we call the illegal purposes of the party and the -- what may be the lawful purposes of the party.

The party as far as I know may be for maternity care, against juvenile delinquency, for disarmament, for peace and all sorts of things.

My question is how an association purposes that may be up -- completely lawful, could be used under this statutory scheme.

Mr. J. R. Wells: I don't believe that those purposes could come within the purport of the activeness to Justice Douglas.

Justice William O. Douglas: Tell me again just why.

Mr. J. R. Wells: On account of the fact that the subversive character --

Justice William O. Douglas: But the statute says by aid, support, advice, counsel or influence to the.

Mr. J. R. Wells: Well --

Justice William O. Douglas: -- Communist Party which may have --

Mr. J. R. Wells: That -- that is construed by the Court to have reference to the subversive character.

Justice William O. Douglas: Where is that precisely?

Mr. J. R. Wells: It is on page 13 of the record Your Honor.

Justice Hugo L. Black: Suppose they knew that the Communist Party intended to be subversive, had full knowledge of it, he attended a meeting such as Mr. Justice Frankfurter mentioned where they talked about various things where this man was the chairman of the meeting or made a speech like De Jonge in Oregon, would you say that the fact that he knew about it would take away from him the protection of the First Amendment of the freedom to be there?

Justice William O. Douglas: Where -- where his advocacy or belief or what not promotes a wholly lawful phase of a subversive organizations' activities.

Mr. J. R. Wells: I think it would depend Your Honor on the motive.

In other words, whether there was a motive to advance the party knowing of its subversive character or whether it was a -- purpose of events and cause.

Justice William O. Douglas: Well, the De Jonge, the man, De Jonge undoubtedly knew about the full scope of the purpose of the party but he was held immune there because the purpose of the meeting it had -- which he attended was to aid strikers or to give relief to picket lines or something in that category that was wholly lawful.

Mr. J. R. Wells: Well, I think that that would be that same distinction here Your Honor.

Justice William O. Douglas: But I don't find it in the case of the report that you -- record that you refer to --

Mr. J. R. Wells: Well it --

Justice William O. Douglas: -- because there it says whether he has been or is or has been innocently and knowingly aligned with a subversive.

Now, De Jonge walks into the meeting knowing what the full scope of the Communist Party program is, but they're there that evening not for blowing up things but for promotion of a local cause.

Would he be caught under your statute?

Mr. J. R. Wells: I don't think he would unless his motive was to advance the cause of the party as distinguished from an advancing the cause that the party was also seeking to advance.

Justice Hugo L. Black: Well suppose a speaker had preceded him who advocated the Communist Party in its aims.

He got up and talked on a perfectly lawful subject.

Mr. J. R. Wells: Well, I don't see how unless in other words, unless the -- what he did was done for the purpose of advancing the Communist Party as distinguished from advancing the cause there that the Communist Party was also seeking to advance at the time.

I --

Justice Hugo L. Black: You mean if he had talked on something that was purposely lawful, advocated the cause that many people before (Inaudible) that the jury could convict him if they thought from the evidence of a speaker preceding him had advocated the Communist Party.

Mr. J. R. Wells: I don't think that that would be --

Justice Hugo L. Black: He too wanted -- he too wanted to aid the Communist Party looking to his motives.

Mr. J. R. Wells: I don't think that that would be sufficient Your Honor.

Justice Hugo L. Black: That -- then you wouldn't look to his motives.

Mr. J. R. Wells: I think you look to his motives but I think you'd have to have more than that to establish his motives.

Justice Felix Frankfurter: Mr. Wells, my narrow point is this that if you were defending this man in the hypothesis put, I'm confident if you let me say so that you get them all but you might not, you might not.

A perfectly clear cut case have reached -- have led the men in the jury box to reach a different conclusion and I'm suggesting that a lot of school teachers who aren't versed in the dialectics of the law might feel queasy and (Inaudible) naturally and justifiably queasy about running an affidavit that might lead them into -- into criminal -- into a criminal prosecution even if they're usually the defendant and whereas such a risk -- such a risk can be unfold upon by the state, it is as narrow as that --

Mr. J. R. Wells: Well, I can understand the point that Your Honor is putting and raising and realize that it's a point that has to be faced in the case, but I don't believe that it should be fatal to the -- to the statute.

Justice Felix Frankfurter: If you have -- it shouldn't be fatal to the statute if you can give a really strong weighty counter consideration why this is the way that a reasonable legislature must deal with the problem with which it has a right to deal with, namely, that puts no time limit, refuses voguish words which is susceptible of ambiguous construction etcetera, etcetera.

Mr. J. R. Wells: Of course, I realize Your Honor that the alternatives are to be taken into account to a brief but I think also that the legislature is not bound to consider the best possible alternative.

Justice Felix Frankfurter: I'm with you on that.

Mr. J. R. Wells: And that if this has a reasonable connection with a purpose which they have a right to achieve that it is something that they could have adopted.

Now, what is the purpose that they have a right to achieve so far as school teachers are concerned?

It is that in this sensitive area that persons not be teaching school where there is an undue hazard that they may be disloyal to the United States Government.

Now, this Court held in the Garner case, I think with seven out of eight of the participating justices agreeing that the provision of the affidavit plan to the effect that they were required to state whether they had ever been a member of the Communist Party, and if so, when?

Now, that went back to the indefinite past and yet that was sustained by -- by this Court, by an overwhelming vote of the justices.

Justice Felix Frankfurter: That's much more definite than this, isn't it Mr. Wells?

Mr. J. R. Wells: Well, it --

Justice Felix Frankfurter: Whether a man has been a member of a party -- there isn't much room for a debate about that.

There is some.

I'm not unaware of it but not -- nothing like aid, support, what is it?

Influence --

Chief Justice Earl Warren: Counsel.

Justice Felix Frankfurter: -- counsel.

Those are -- those of (Inaudible) words.

Those are the grab bag words, aren't they?

I don't mean they were grab bag but they're -- they're words of breadth.

Mr. J. R. Wells: Well, they are words of breadth but I think the words like counsel and advice that they have had a long history of having been used in connection with accessories, words of that kind, accessory before it, in fact on crime and things of that kind and I think all that needs to be taken into account in determining in the meaning to be attached to it as to whether the --

Justice Felix Frankfurter: They made an influence on ethnic -- aren't words of ours, are they, influence?

Mr. J. R. Wells: Well, influence is sometimes used in connection as influence in an act in connection with accessory before the fact but advice and counsel are more.

Justice Felix Frankfurter: Mr. Dale Carnegie uses them in a different sense, doesn't he?

Mr. J. R. Wells: I believe it does Your Honor.

Chief Justice Earl Warren: Mr. Wells, may I ask you this --

Mr. J. R. Wells: Yes sir.

Chief Justice Earl Warren: -- this question?

Assuming for the moment that this oath does invade constitutional rights under certain circumstances, just assuming that?

Mr. J. R. Wells: Yes sir.

Chief Justice Earl Warren: Does that lead you to the conclusion that no redress can be given to an admittedly loyal American citizen just because he asserts his loyalty.

But on the other hand, redress is restricted to communists who are admittedly disloyal.

Mr. J. R. Wells: I don't know that the question can be answered strictly that we -- Your Honor.

Chief Justice Earl Warren: Well, we've got the two extremes, two poles and --

Mr. J. R. Wells: Well, I take it for instance as applied specifically to the past, I think it's quite definite that the -- a party cannot raise a question for someone else on a constitutional question.

Chief Justice Earl Warren: That wasn't the question I asked you.

I asked you admittedly, is -- is redress denied to a man who assertedly and admittedly is a loyal citizen, but on the contrary that any redress open to anyone if there is an invasion of constitutional rights is limited to communists who are admittedly disloyal.

Mr. J. R. Wells: If they are -- to a loyal American, if his rights -- if his constitutional rights have been invaded then there certainly is redress.

Chief Justice Earl Warren: Regardless of whether he claims to be loyal or not.

Mr. J. R. Wells: That's as to whether if his constitutional rights have been invaded.

Chief Justice Earl Warren: That's right.

Mr. J. R. Wells: But the -- I think the -- it does affect whether his constitutional rights has been invaded.

What his position is and what -- how he stands with relation to the oath as to --

Chief Justice Earl Warren: In other words --

Mr. J. R. Wells: -- whether his constitutional rights have been invaded.

Chief Justice Earl Warren: Well, I'll put it this way.

In other words, if he is -- if he is a loyal American citizen and that should close the book, shouldn't it on the situation, he can be compelled to take this kind -- kind of an oath but if he is a communist and is disloyal, he need not -- he need not take it, assuming that there is some invasion of constitutional rights.

Mr. J. R. Wells: Well, that would depend on whether there is an invasion of his constitutional rights.

There's an invasion of his constitutional rights then he can't be required to take it.

I think if it --

Chief Justice Earl Warren: Well, tell me this then.

What rights of a communist can be invaded and be subject to redress without the same invasion giving a loyal American citizen a right to redress?

Mr. J. R. Wells: Well, a communist or a person who has lent aid or support to the Communist Party years ago and has reformed then he would be entitled to raise a question as to whether that was a bill of attainder or ex post facto law as to whether how that -- it would be answered, it would be a different question but he would be entitled to raise that question as to whether there was passed to him a bill of attainder or ex post facto law.

But I don't think that a person who says that he has never lent aid, support and so forth to the Communist Party can raise the question as to whether it's an ex post facto law or bill of attainder because it couldn't possibly be as to him.

Chief Justice Earl Warren: Yes, but suppose a man -- a man like Justice Frankfurter was talking about, a man who had supported certain causes that the Communist Party supports.

Suppose he supported a broad program of public housing, a broad program of maternal care, broad program of let us say public medicine and things of that kind, suppose he supported those things permanently but did not support any of their subversive programs, would he then -- would he -- wouldn't he then have a -- have to stop, look and listen before he signed any such affidavit for fear, three or four half a dozen people would say I saw him on the platform with so and so.

I saw him when the communists were advocating this or advocating that.

He spoke from those very, very things in company with them on the same platform.

Wouldn't a man in that position be in a delicate -- delicate position to sign an affidavit of that kind on the question of beliefs and counsel and aid and so forth?

Mr. J. R. Wells: Oh, I think he would -- he would have the right to raise the question as to whether his constitutional rights had been invaded by the unconstitutionally vague statute as -- but I don't believe --

Chief Justice Earl Warren: Where could he -- when -- where could he raise it?

When he's charged with perjury?

Mr. J. R. Wells: I think he could raise it in advance although I do think --

Chief Justice Earl Warren: Do you have procedure for that in Florida?

Mr. J. R. Wells: Well, I think -- I think he could raise it in a type of procedures that is raised – that's invoked here.

But if I say I think he could raise it in a type of procedure that was invoked to him, declaratory decree if his constitutional rights have been invaded.

But I question that his constitutional rights have been invaded and also, I think that if a person is not in a very good position to say that I could not sign that oath as to whether to the effect that I've never lent aid and support because of doubt as to what might be considered aid-support and yet at the same time square that I have never lent aid or support.

Chief Justice Earl Warren: But suppose the man was in this position.

Suppose he said -- he said, “Yes, I was -- I was very much in favor with all of these things and I have -- have enumerated and I did cooperate with the -- with the Communist Party when they were advocating such things but I have no truck at all with their other -- with their other beliefs but I did counsel with them.

I did advice them, I did -- I did talk with them on the -- on the platform.”

What would his position be then?

Mr. J. R. Wells: Well, that gets to the question as to whether it is fatally indefinite and with the scienter in there, I don't think it is fatally in depth because you've got to show a lack of bona fides in connection with it and I don't think that there -- in order to show that it was false and I don't think that that could ever be shown.

Chief Justice Earl Warren: Was there anything in -- in -- in the statute or in the decisions of your Florida Supreme Court which hold that the -- that the cooperation and the -- and the counseling and assistance and so forth that is contemplated by this oath must be as to those facets of the Communist Party that have to do with overthrowing our government?

Mr. J. R. Wells: I don't -- I think that the statement by the Court in this decision substantially holds that Your Honor.

Chief Justice Earl Warren: Where?

Mr. J. R. Wells: In the statements.

Chief Justice Earl Warren: What does it say?

Where -- where can we find that?

Mr. J. R. Wells: At the bottom of page 13 of the record.

Chief Justice Earl Warren: Of the record.

Mr. J. R. Wells: Yes.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: May I ask you to get there from my mind about this.

Mr. J. R. Wells: Yes sir.

Justice Hugo L. Black: Is it your argument that no man can raise this who is not affected by it and no man can be affected by it unless he's been guilty of the things which it prohibits?

Mr. J. R. Wells: Not exactly Your Honor.

It is --

Justice Hugo L. Black: But it is your idea that in order to challenge it, he must show -- he comes within the class who have either been a communist, is a communist who has advised, aided and abetted communists.

Mr. J. R. Wells: It is my position that where he shows that he has not --

Justice Hugo L. Black: Suppose he hadn't shown he has not?

Suppose he just comes in and says, “I want to raise the question of the constitutionality of this” and they say, “Well, you've got to show you were within the class by denying that you are -- by admitting that you have done some of these things.”

Mr. J. R. Wells: Well, I think that that would be a more questionable --

Justice Hugo L. Black: More questionable?

But if it's the other way, if -- why wouldn't it be here that if a -- is it your argument that this particular man does not have the right standing because he has denied that he's been a communist or is it your idea that a man must show he comes within the class that it touches, which is it?

Mr. J. R. Wells: Well, I think it's necessary that he show that he come within the class Your Honor.

Justice Hugo L. Black: Suppose he (Voice Overlap) --

Mr. J. R. Wells: However -- but -- certainly if he (Voice Overlap) --

Justice Hugo L. Black: Suppose he didn't come (Voice Overlap) --

Mr. J. R. Wells: -- he doesn't come within the class --

Justice Hugo L. Black: Suppose he just comes and says, “I'm not going to answer this.

The laws are unconstitutional.”

And they say, “Well, does it affect you?”

He said, “I won't say it.”

Mr. J. R. Wells: Well --

Justice Hugo L. Black: Would he have standing?

Mr. J. R. Wells: I doubt that he would but of this situation that he --

Justice Hugo L. Black: In other words, he decided to come in -- when he's got to come in and do as I -- your argument, as I understand it, is to come in first and either admit that he is a communist or has done these things under which -- under which circumstances, he would have standing to challenge.

Mr. J. R. Wells: I think it depends on which standing the question what it would be brought.

Justice Hugo L. Black: Standing the question of this Act.

Mr. J. R. Wells: Well, I think he has standing in the question of the act on certain basis of it without regard to that, but I don't think he's got standing to contend that it is an ex post facto law or bill of attainder.

Justice Hugo L. Black: Why not, what's the difference?

Mr. J. R. Wells: On account of the fact that it cannot be an ex post facto or bill of attainder unless it adversely affects him.

Justice Hugo L. Black: Well, is that the only one you claim that he doesn't have standing to raise here?

Mr. J. R. Wells: Well, I think that it's affected seriously where he -- on the -- in the question of vagueness.

Justice Hugo L. Black: Do you think he doesn't have the right to raise that?

Mr. J. R. Wells: I doubt that he has the right to raise the question of vagueness where he comes in and swears to the facts that he says, the oath is too vague with regard to.

Justice Hugo L. Black: Well, I don't quite get what a man would have the right to challenge.

I've always -- suppose that the only -- that the man had have a right to challenge the law, he's accused of doing something under it and that he wouldn't have to come in and admit that he'd done it before he'd have standing to sue -- to challenge it.

He doesn't have to do that, does he?

Mr. J. R. Wells: No sir, no sir.

I don't think that's been (Voice Overlap) --

Justice Hugo L. Black: But he doesn't have to admit he comes within the class that covers, does he, so far as his conduct is concerned?

Mr. J. R. Wells: I don't think he does, generally speaking, no.

But if he shows that he --

Justice Hugo L. Black: Do you think he does under communist act but not generally, is that it?

Mr. J. R. Wells: No sir.

I don't think that that is our position Your Honor.

Justice Felix Frankfurter: Mr. Wells, there is a difference, isn't there between a man coming in to court and say, “I'm asked to sign a document.

You have no business to ask me.

I signed it and therefore I ask you to strike it down” and a man saying, “You're asking me to sign a document.

I'm perfectly ready to sign it or it doesn't cause me any kind of recognizable harm to sign it but I'd like to have the Court to make a ruling on this question.”

There is a difference between those two situations.

Mr. J. R. Wells: Well, that was the --

Justice Felix Frankfurter: I'm not saying that this is a good situation --

Mr. J. R. Wells: -- the point I was trying to make Your Honor.

Justice Felix Frankfurter: -- I don't think it is but there is a difference.

Justice Hugo L. Black: I -- I was just going to ask you if you don't think that's happened here, do you?

He hadn't come in and said that I can't possibly be touched by this Act.

Mr. J. R. Wells: I think he has to in large measure Your Honor where he says, “I have not lent aid, support and so forth to the Communist Party.

I'm not a communist.

I do not believe in the overthrow of the Government of United States and the State of Florida by force or violence and I'm not a member of an organization or parties that believes in or teaches the overthrow and --”

Justice Felix Frankfurter: Mr. Wells, isn't the truth of the matter just as interpreting what this really means, I haven't -- I don't live inside of the mind or the threat or with the constraints but he's trying, quite understandably, he's trying to ride through horses which is a feat that's not too impossible.

He's trying to say, “It's none of your business to ask me these questions but I don't want to appear -- I want to appear in the best possible life.

So I disavow having done any of the things that are disapproved by the oath.

He decides to do both those things.”

Isn't that right?

Mr. J. R. Wells: Well, to -- I think in large measure Your Honor that is right.

And I think --

Justice Hugo L. Black: Suppose he has -- suppose he has, how does he know that the state must -- that he hasn't done would not be disapproved by a group of informers or group of other people, how could you know?

Mr. J. R. Wells: Well, of course that gets to --

Justice Felix Frankfurter: That's the vice of (Inaudible) --

Mr. J. R. Wells: That gets to the question of whether it is fatally indefinite and if the statute is fatally indefinite then I don't question that the statute is invalid but that gets back to the question as to whether it is fatally indefinite.

Justice Felix Frankfurter: When you say fatally indefinite, I think if I may say so you're conjoining two very different things.

The statute isn't indefinite to defend that -- one doesn't know what it means.

It's often when one does know what it means, it raises difficulties which -- while we're here which raises a constitutional question whether you have a right to put a man in that situation.

It's perfectly plain what it means namely that you mustn't have been guilty of -- you mustn't have conducted yourself or to bring yourself within any of these rubrics.

The trouble is, as is pointed out several times in the course of this argument, this may subject him in a lawsuit and everybody knows that the lawsuit is a gamble.

Mr. J. R. Wells: I realize that there is that possibility Your Honor.

Well, the next clause of the oath --

Justice Charles E. Whittaker: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Charles E. Whittaker: This is the heart of the case for me here.

Here is an averment either that one can or that he cannot make such an affidavit in such a case ever relevant in such a case?

Mr. J. R. Wells: I believe it is Your Honor.

I believe it's relevant.

You mean as to whether he can make the --

Justice Charles E. Whittaker: Whether he could -- whether he is able by reason of his past conduct to make the affidavit or he is not able, is that ever a relevant averment in a complaint in the case like this?

I'm thinking that if it is then one who doesn't say as this plaintiff did say, “I can honestly make the affidavit” would be presumed to be unable to make it.

So is it ever relevant such an allegation?

Mr. J. R. Wells: I don't know.

I'm sorry that I'm --

Justice John M. Harlan: I thought your position was that it might be relevant on the question of the state rule that says that you cannot come in and raise a constitutional claim if this appears in the face of your complaint, the -- if you don't claim here, that'd be personal injury -- personally injured by the claim if it's -- if by the statute if it's enforced against you and all you want is a general declaration of rights under the law.

I thought that's what you state the Supreme Court had said.

Mr. J. R. Wells: I think that that is -- is what enforced.

Justice Charles E. Whittaker: Well, isn't that quite another thing even if these averments of the kind made by here by this petitioner in paragraph 6 on page 2 of this record are irrelevant and are not necessary.

Yet by making them, is it true as I understand your court has held that he has reduced his complaint to a request for an advisory opinion and therefore has shown its non-justiciability?

Mr. J. R. Wells: I think that --

Justice Charles E. Whittaker: That's a different question isn't it?

Mr. J. R. Wells: I would have thought it was at least to the clause and relief question Your Honor.

Justice Charles E. Whittaker: Well, even if such an averment could never be relevant yet one might voluntarily by allegations like those in paragraph 6 of this complaint, show that he could not be injured by them and say, “I can make” as he says he can make this very affidavit and therefore reduced his complaint to a mere request upon the Court to render to him an advisory opinion.

Mr. J. R. Wells: Well, I -- I think that's -- I think that's correct Your Honor.

That's correct.

Justice Hugo L. Black: Suppose it is true that a person has no standing to sue in the Florida Court, do you think he's having a standing to raise this constitutional question in any way?

Mr. J. R. Wells: I think the --

Justice Hugo L. Black: And so where would it be but the federal courts.

Mr. J. R. Wells: I think the Florida rule on that is that has been referred to as a state rule is similar to a rule that this Court has announced as to the necessity of a person injured in -- a necessity of a person being injured in order to get a decision on the constitutional question.

Justice Hugo L. Black: But that's -- that's arguing the merits of the rule not what I understood Justice Harlan to be talking about that this is a Florida rule.

Mr. J. R. Wells: Well, if -- if that is --

Justice Hugo L. Black: What about Mooney and Holohan that Florida won't let him raise?

Mr. J. R. Wells: I beg your pardon.

Justice Hugo L. Black: What about the rule in Mooney and Holohan that Florida will not let him raise this constitutional question?

Mr. J. R. Wells: You mean as to --

Justice Hugo L. Black: The right to raise it in the federal court.

Mr. J. R. Wells: Well, it's entirely possible that there might be the right.

I haven't --

Justice Hugo L. Black: Is it your idea that your Florida rule is intended to be played that whether the federal rule required to be not -- this man shall not be allowed to raise this constitutional question in the Florida Court under the circumstances here?

Mr. J. R. Wells: I think so far as this case is concerned Your Honor that if the -- if the Florida Court has announced a rule which is a sufficient rule of state law to decide this case then as to whether there's any other redress I think would be a question for another case.

Justice Hugo L. Black: Well, are you arguing that it's still the Florida rule or that you're following the federal court to say it has no chance to -- suppose you're wrong on the federal rule --

Mr. J. R. Wells: Well, I'm saying --

Justice Hugo L. Black: -- do you still say that Florida will deny him relief?

Mr. J. R. Wells: I feel like Your Honor that the Florida rule is sufficient to deny him relief.

Justice Hugo L. Black: In Florida.

Mr. J. R. Wells: In Florida.

Now, I'm under the general impression that the federal rule is not too much different from the Florida rule in that regard but I'm --

Justice Hugo L. Black: But that would result in -- meaning that the man can have his constitutional right violated with no possible remedy in the federal or state court.

I thought Mooney and Holohan held different.

Mr. J. R. Wells: Well, I don't --

Justice Hugo L. Black: I thought --

Mr. J. R. Wells: I'm not familiar with those two decisions that the --

Justice Hugo L. Black: Mooney versus Holohan where the question was whether California has failed to give a remedy where there was a charge that the man had been convicted on perjurious evidence knowing that the evidence was -- the state knowing it was fault.

That was (Voice Overlap) --

Mr. J. R. Wells: I remember something out of the case now Your Honor.

I didn't recall it (Inaudible)

Justice Hugo L. Black: And this Court held that it would not have -- as I recall it.

I haven't read it yet, (Inaudible) it would not assume that California would not give a relief in the federal constitution is violated, the man is condemned from the consideration on that basis.

I think that was (Inaudible) --

Justice Felix Frankfurter: Mr. Wells.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: The -- I think I've been talking a little bit at large as to what the complaint says and what the courts held.

Mr. J. R. Wells: Yes sir.

Justice Felix Frankfurter: To be sure, paragraph 7, the complaint says, the plaintiff is a loyal American and does not decline to execute (Inaudible) oath of fear of the penalty provided by law of false oath.

And then it goes on in the next paragraph and says, “nevertheless he objects to it” because to require him to swear that he has not lent aid, support etcetera, brings him in the violation of the due process of law.

He doesn't spell out why it's a due process of law, but he has a right not to foreclose in making any proper inferences drawn from the (Inaudible) of what he does.

Now, your Supreme Court didn't say, which for me would make a very difference -- it'd be a different case, your Supreme Court doesn't -- hasn't said that in view of paragraph 7, despite his reliance on due process, he has said in effect that I have no concern with the consequences of signing this oath.

I'm not worried that any jury in Florida would -- could construe such an oath by lending aid and support, except to mean that I was a member of the Communist Party, that I have a definite organic relation with the party.

And if he wanted to say that then under Florida law, it should have been more particular.

For myself, I think Florida can -- if he chooses to continue the common law pleading which strict -- with all the strict technicalities of that system of pleading.

All your Supreme Court had said was this, “By the allegations of his complaint, the appellant under oath affirmatively denied any present or past associations which would preclude him from executing the subject oath.”

He stated in his complaint quote, “That he has not, does not and will not lend aid, support or advice, counsel or influence the Communist Party.”

That's all I find in the opinion of the court that you point out some things that I've missed as well I might have.

And therefore, all they gather from his disavow is that he was not -- that he did not have present or past association with the Communist Party.

Now, that for me still leaves open the danger he runs of having perfectly innocent constitutionally allowable conduct interpreted by a jury with the finding that he did give aid or support.

Mr. J. R. Wells: Oh, did Your Honor read from the bottom of page 18 and top of page 19?

Justice Felix Frankfurter: That's what I've been reading from.

Mr. J. R. Wells: I didn't --

Justice Felix Frankfurter: That's just what I've been reading from Mr. Wells and that's all I find.

For myself, I think states can be as pugnacitive as they want to be so long as they don't use pugnacities as a means of defeating federal rights because they can be as exacting as they plead in pleadings, but I don't find that the Supreme Court here has made any such ruling.

Mr. J. R. Wells: Well, I see that my time is nearly up and I'll just briefly refer to the clause of the oath.

I do not believe in the overthrow of the Government of United States and the State of Florida by force or violence.

I would like to call your particular attention to the fact that the language there does not contain the words that Mr. Justice Frankfurter felt to be particularly obnoxious in the Douds case with regard to where -- by unconstitutional or illegal means that they are not in the Florida statute and that this is limited to the violent overthrow by force or violence which I think would go far to eliminate the objections that was dealt in part in the Douds case.

Now, I think the -- on that clause, the validity of the oath might well depend on what is to be meant, considered to be meant by that expression.

In other words, does that refer to a belief in the abstract doctrine of the overthrow of Government by force or violence or does that have reference to the overthrow as an objective of the Government as presently constituted by force and violence.

And I think that it definitely has reference to the overthrow as an objective of the Government by force or violence -- as presently constituted and does not refer to any plea within the -- for some conceivable set of circumstances not now existing or some dictatorship or something of that kind.

Thank you Your Honors.

Chief Justice Earl Warren: Mr. Simon.

Rebuttal of Tobias Simon

Mr. Tobias Simon: The Court will note from the brief that this action was brought in Orange County, Florida pursuant to the provisions of Florida statute 87.01 which under Florida law permits an individual who is in doubt as to his status and his rights under a Florida statute to bring an action for declaratory relief.

Now, this is not a procedure that is available in every state.

It is available within the federal system.

And while this does not give an individual the right to ask for and secure an advisory opinion, it is something very close to that.

It does give him the right to have the Court adjudicate for him whether he is required to sign -- in this case, sign this oath or not.

I think it is important to point out to this Court that there were at least and not less than six points raised on our appeal to the Florida Supreme Court and the Florida Supreme Court answered all six points, five of them in a substantive manner.

They said, for example, that the question of scienter was no longer in the case.

They said that the question of preemption of subversion under the Nelson case is no longer in the case.

They ruled specifically on the question of whether we had to take this oath or whether the Constitution of Florida limited public employees to a constitutional oath.

They ruled and said specifically that anybody who can read English as to the requirements of the statute knows exactly what it means on the question of the so-called vice of vagueness.

They also said that due process and First Amendment provisions were not applicable and then and only then on pages 17, 18 and 19 of the record did they come to the question of ex post facto and bill of attainder and they said with regard to these questions and only these questions do we maintain that there is no standing to sue.

Florida did not say that there was no standing to sue with regard to the other questions.

Justice Charles E. Whittaker: May I ask you Mr. Simon.

Is the effect of that argument to regard paragraphs 6 and 7 of the complaint as surplusage?

What effect have they under this argument?

Mr. Tobias Simon: It is not surplusage according to the Florida Supreme Court with regard to the questions of ex post facto and bill of attainder.

They said that this man cannot raise the question whether -- and they said specifically on page 19 of the record, there could not and I quote, “There could not possibly be a legislative adjudication of guilt for the simple reason that the complaint on which the appellant stands and set up firmly points out.”

They said the same thing that this statute could not constitute an ex post facto law as to this appellant but they did not say that this appellant was not permitted to raise the due process question and they did not say that this appellant -- of course they said that there was no denial of due process, but they ruled on that and they did not answer the other questions on this ground which if they have wanted to, they could have dismissed our entire brief and our entire complaint raising six assignments of error on this last one and they did not do it for the simple reason that the Florida Supreme Court did not hold that there was no standing to sue.

We submit that where this man's rights are being invaded as we maintain they are by forcing him to do something as a condition of his employment which he is not required to do, the fact that he is willing to show himself in a good life to this Court.

To come in as a sheep rather than as a goat does not destroy his rights.

Justice Felix Frankfurter: Mr. Simon before you sit down, in view of the breadth of your argument remain, I would like to ask you namely that no belief can constitutionally be inquired as to anybody who seeks office under the United States or state government, is that right?

Mr. Tobias Simon: Mr. Justice Frankfurter, I do not feel that my argument has to reach that point.

There may be cases wherein a guard of the president may be inquired -- one may require him to express his belief --

Justice Felix Frankfurter: Let me -- let me put a case that is in regard to the President.

The thing I referred to you but I didn't have the text before me.

The TVA Act has this provision, all members of the board shall be persons who profess a belief, just listen in what (Inaudible) this professor believes in, you must profess a belief in the feasibility and wisdom of this Act.

I gather from your argument as an unconstitutional assertion of power by the President -- by the Congress.

Mr. Tobias Simon: I have not represented the TVA nor the (Voice Overlap) of the Act and I would --

Justice Felix Frankfurter: I know but our argument either -- argument either have relevance or they don't have relevance.

Mr. Tobias Simon: And --

Justice Felix Frankfurter: And the lawyer says that a government can't ask its appointees whether they have a belief in the Constitution of the United States and its entirety or a belief in an Act under which they're supposed to act or belief in the law and the members of the law faculty then I have a right to put you a concrete case in order to test your argument.

Mr. Tobias Simon: My answer to that sir is that that particular provision in my opinion and based upon what I understand to be the decisions of this Court is that the federal government nor the government of Florida can reach into a man's mind and require it to be divulged as the condition of any governmental favor or employment.

Justice Felix Frankfurter: So that that's an unconstitutional provision in the TVA.

Mr. Tobias Simon: It was so here sir, yes sir.

Justice Felix Frankfurter: Alright.

Mr. Tobias Simon: Thank you Your Honor.

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